Weakley v. Brahan

By JUDGE COLLIER.

It is a rule of law well aseertained, that one person cannot make another his debtor, against his consent. This rule is, however, subject to ex■ception in case where the legal interest passes by assignment, as promissory notes, bills, &c. and also where judgments, accounts, &c. assigned, are sued on in the name of ■the party to whom they appear to have been originally •due; there the assignment is equivalent to a letter of attorney, to sue in the name of the assignor.b But the rule extends to all payments made to another’s use, where the action is brought in the name of him who advances the money. Such a case is the one we are considering, and' it was an essential point of the plaintiff’s proof, in the form of action adopted by him, to shew a request by the defendants to pay the judgments against them, or to prove facts or circumstances, from which -such an inference could be deduced by the jury. It cannot certainly be insisted that the fact of payment, or the relationship existing between the plaintiff, and the defendant, Brahan, pre-supposes are-quest; such an argument denies to the rule any other than ideal existence.

Upon analogy, we think that one defendant, who is charged as having been a partner with another, cannot, after dissolution, bind the other to third persons, by a request t® them to advance money, in discharge of firm liabilities, jje cannot make a note, or draw a bill, though he may be authorized to close the business of the concern, which will be operative against both. And we can discover no difference in principle between imposing a liability by a note or bill, and a verbal promise. The singular state of the pleading in this case, is such, Atwood alone having pleaded, and being before the jury, that we should be inclined to think the charge of the Court on this point erroneous, if there was any evidence on the record which could have elicited it. In considering the evidence, we discard from our view the statement made by the plaintiff, as an inducement by him to a settlement of the judgments, for they cannot be received to prove any fact.

From what we have said, it is inferable, that without proof of request, the plaintiff might prosecute actions upon the judgments for his benefit, and that their payment by, and transfer to him, would not be considered such a satisfaction as to prevent a recovery.

Judgment affirmed.

b 33^'®john 43i! ’s John! Jolm.87.