This was a proceeding to set aside a judgment and execution thereon, confessed in vacation, in the name of A. J. M. Richardson, to the appellants, under the 22d article of the new code of practice. Achilles and J. M. Richardson were partners in trade, and indebted to the appellants, for merchandise. The indebtedness was evidenced by a promissory note, executed in the name of the firm. The confession was authorized by J. M. Richardson alone, and after the dissolution of the partnership between him and Achilles Richardson. The execution was levied on goods belonging to A. Richardson. The court below set aside the judgment against A. Richardson, and quashed the execution.
1. The facts in this case stand admitted by the demurrer to the petition, and we are at a loss to conceive the ground upon which the proceeding can be sustained against A. Richardson. *Page 411 The case of Green v. Beals, 2 Caine's Rep. is an authority to show that the judgment confessed by J. M. Richardson was void as to A. Richardson. The cases of Motteux v. St. Aubin, 2 Blackf. 1133, and Denton v.Noyes, 6 Johns. Rep. are not applicable to the circumstances of this case. It cannot be maintained, that a partner, either before or after the dissolution of the co-partnership, has authority to confess a judgment for his co-partner. The authorities are abundant to show that one partner cannot confess a judgment which will bind his co-partner.Crane v. French, 1 Wend. 311. McBride v. Hagan, 1 Wend. 327. We can see no difference in principle between setting aside the judgment and restraining an execution upon it, as either mode of action is based upon the nullity of the proceeding, which is not permitted to be used as a foundation for any future action against the party, for whom it has been unwarrantedly entered.
It does not appear that the judgment against J. M. Richardson has been vacated, nor will we interfere with it. The other Judges concurring, the judgment below will be affirmed.
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