I am for admitting the confession of Hyde to prove the execution of the note. This is a distinct matter from the question of copartnership, *454To put the plaintiff upon producing the subscribing witness, will operate a surprise upon him. •
Tyler, Judge.I have long considered that some general rule ought to be adopted to prevent the defendant in action upon promissory note from surprising the plaintiff by insisting on trial upon the testimony of the subscribing witness, in cases where it is obvious the execution of the note is not designed as a substantial defence, but merely to operate delay. Perhaps this evil can better be corrected in Courts which have the original jurisdiction of causes of this nature; and it would be desirable that the several County Courts would adopt as a general rule, “ that in all actions upon promissory note, the execution of the note should be considered as confined, unless the defendant, by the second day of the term of entry, should give notice to the plaintiff, by a minute on the docket, signed by his counsel, or attested by the Clerk of‘the Court, that he meant to contest its execution.”
As no such rule exists, in the present case I consider that the defendant has a right to examine the subscribing witness, and might safely rely on the plaintiff’s producing him,
It is not stated that the defendant personally signed this note, or had any individual knowledge of the contract. If he has assumed to pay it, it is by operation of law, and dependent on the existence of the partnership between him and Lemuel Hyde, since deceased. The principle of law which renders the partners in a firm of merchants accountable for the contracts of each other, is directed to prevent imposition, that he who is bankrupt shall not obtain credit *455by, a connection m'erely ostensible with him who is opulent, and that he who is opulent shall not take the avails of a contract made by a seeming partner, who is unable to respond for them. Therefore, in all cases of this nature, the Court have allowed a very liberal latitude. In the proof of partnership a plaintiff prosecuting defendants as partners in trade has not been confined to shew articles of copartnership. The annunciation of the firm in the public newspapers, an open store, sign-board, or books of the company. But he may shew a variety of joint contracts made by th£m in such manner as would induce a general and rational belief that they were connected in trade. This has been done to prevent imposition upon those who might deal with them.
If in the course of this trial it should remain doubtful whether the defendant was in partnership with the deceased at the time of the contract, and the testimony should rather preponderate in favour of a partnership, it would be a matter of importance with me to discover in what light the plaintiff viewed the connection between Brownson and Hyde at the time of the making the note in question. Did he part with his property upon the credit of the firm, or did he contract with Hyde, understanding that the partnership was a matter of uncertainty, and that its existence was denied by the defendant ? Is the plaintiff one whom the law will and ought to protect from imposition, or has he voluntarily and with his eyes open, entered into the contract with Hyde., and made an advance upon his property as a premium for his risk in proving the partnership. «¿fcL
Cephas Smith, Junior, and John Cook, for plaintiff. Smith Ss? Prentice and Chauncey Langdon, for defendant.I am not therefore for dispensing with the attendance of the subscribing witness; and it is my opinion that evidence of the confession of Hyde to the execution of this note, cannot be admitted. But as I would not prejudice the plaintiff, I shall be inclined to grant him a continuance.
Chief Judge.If the action had been originally commenced in this Court, I should not be for admitting the confession of the maker of the note to be heard in evidence, but I consider that the defendant, who put the plaintiff upon proof of the partnership, has, by the trial at the lower Court, had access to the note declared upon, discovered who was the subscribing witness, and had sufficient time to inquire whether his appearance on the stand would benefit him. If he considered his testimony material in his defence, he should have summoned him to appear.
I am therefore for admitting the evidence of the confession of Hyde to the making of the note.
Evidence admitted.