In the decision of this ease it becomes material to consider the rulings of the court — 1st, in admitting the defendant Kirker to testify; 2d; in tlie instructions to the jury; and 3d, in refusing a new trial.
1. Tlie first question here presented must be determined by a reference to the 57th section of the act to regulate proceedings in the District Court. This Section was intended to provide for a class of dealing so trivial in amount as not to justify in all cases the obtaining of formal proofs. It provides that where the party will make oath that he has no other evidence than his own oath to establish a material fact, he may himself testify touching such fact. This innovation upon tlie common-law rules of evidence was introduced from the supposed necessity of the case, and is allowed where there is a destitution of other means of proof; but it is not to be extended beyond the ex-jiress enactment. This evidently contemplates that the party proposing to testify in his own case shall in his preliminary examination touching his right to do so state the fact or facts to which he proposes to testify. He'"is not to be allowed to testify generally, but only as to such facts as he may be unable to prove by other evidence. This is the evident meaning of the statute, and it was not admissible to extend its operation beyond the obvious import of its terms. Tlie court therefore erred in not requiring tlie party to slate the facts touching which he proposed to testify, and in not confining his testimony to those facts. But the party was not only permitted to testify generally,'but when it was objected that lie was speaking as to fads which it was apparent he could prove by other evidence, the court still refused to arrest his testimony, and ruled that‘‘the jury should decide whether he swore to any fact which he could prove by any body else; and if so, they should reject so much of his testimony.” This, it would seem, was to submit to the jury a difficult inquiry; for it is not easy to perceive how they could know whether or not the party could prove the same facts by other evidence. It was at least an inquiry which it did not belong to them lo determine.
2. As to the rulings of the court respecting instructions to the jury.
Tile first branch of the instruction given — that is, “that in order to bind all the partners, tlie note given in evidence must be signed with the partnership name and style ” — is erroneous. On the contrary, in all contracts concerning negotiable paper, the act of one partuer binds all, even though lie signs his individual name, if it appear on tlie face of the paper to be on partnership *129account-, mid to lie intended to have a joint operation; and the holder may, at his eleclion, enforce payment either jointly against the firm or separately against the, party whose signature, is attached. (Gow on Part., 39; 3 Kent Comm., 41; 11 Johns. R., 544; 6 Mass. R., 519.) Here one partner had signed the names of holli, and there could he no doubt from the face of the paper that it was intended to have a joint operation. The instruction, therefore, was not only erroneous as a legal principle, bat it was so especially in its application to the, case in evidence.
The remaining branch of the instruction, viz, “that a limited partnership in the bar-room did not authorize, either to charge the other for goods not in the nature, of the partnership business.” is erroneous in two respects: 1st. It assumes (lie fact to have been proved, instead of leaving it to the, jury to find the fact from the evidence. (Cobb v. Beal, 1 Tex. R., 342; Lightburn v. Cooper, 1 Da. R.. 273.) 2d. It was not proved as assumed that the partnership was “limited ” to the liar-room; but, on the contrary, there was evidence that the defendants were also partners in the “adventure down west,” in furtherance of which the note in suit was given.
The first proposition asked by the plaintiffs as an instruction was clearly correct, ami ought to have been given. It is difficult to conceive upon what ground it was refused. It was not only correct iu-the abstract, but it was a proper instruction to have been given in this case. There had been no proof that this firm was known by any particular name. They had signed and used the name of “J. Lombardo & Co.,” but whether ou more thaii one occasion does not {ippeav, nor does it appear that that was the name by which they were accustomed to act and contract or by which they were known.
The second and third propositions asked as instructions by the plaintiffs are correct, with tho qualification that it be understood, as it doubtless was supposed to be, tliat the making of the note referred to was within the scope of the partnership, or that it was given in a partnership transaction; and this ought, perhaps, to have been expressed.
3. As to the ruling of the court in refusing a now trial.
This was asked on various grounds, but it will only be necessary to consider that which relates to the finding of the jury upon the evidence. It was proved that the note sued on was given in a partnership transaction — the adventure in wliie.li the defendant Kirlcer had admit,ted Unit he was a partner. The only evidence relied ou to discharge the defendant Kirker, from liability upon the note was his own testimony that lie did not authorize Lombardo to make the note, and that he, Kirker, was not a partner in the adventure. It may be true that Kirker did not expressly authorize, Lombardo to make this note, but it is certainly true that lie held himself out to third persons as a partner in the transaction in which it was given. He so stated to the witness. And this was an implied authority to Lombardo, bis ostensible partner, to use his name, and,' as to third persons, w.as binding upon him. whatever may have been the private understanding between the partners. IE a person hold himself out as a partner, though in point of fact no partnership exists, he is liable to a creditor who contracts with the firm. (Comyn ou Con., 481; 3 Kent Comm., 41.)
"Where (says Starkie) two or more, unite in partnership for carrying on a particular trade or other purpose, they become, in point of law, so identified with each other that the acts and admissions of any one with reference to the common object, are, the ants and declarations of all and are binding upon all. Tho very constitution of this relationship furnishes a presumption that each individual partner is ail authorized agent for the rest. (2 Stark. Ev., 582.) And the acts and representations of parties may he conclusive evidence of their partnership in favor of strangers who are not cognizant of their private arrangements, but who must lie guided by external-indications, although as between themselves they are not partners. (Id., 583.) Hence, if a person lias *130represented himself to be a partner, and has been trusted as such, he is bound by that representation, and it is no defense for him to show that he was not in fact a partner. (Id., SSG.) Every partner lias an implied authority to bindhis copartners by the making’ of notes and the drawing and accepting of bills for commercial purposes consistent with the object of the partnership. (7 T. R., 210; 10 East R., 264; 10 Id., 175.) And to rebut this presumption of authority there must be proof of fraud or a knowledge of the want of authority, or notice to the party seeking to charge tho linn that the oi lier partners would not be responsible for the acts of their copartners. (2 Stark. Ev., 143, 589.) There is no pretense of fraud in the present case, and the notice given was not until long after the making of the note sued on. The facts relied on by the defendant constituted no defense to the action, and the plaintiff, under the evidence, was entitled to recover. The verdict, therefore, was against evidence, and ought to have been set aside and a new trial granted.
Judgment reversed.