Leckie v. Scott

Martin, J., delivered the opinion of the court. It appears to us, that if in any instance, justice requires that the case should be remanded, it is the present. The appellant appealed to the plaintiff for the discovery of the truth, which he evaded on a technical objection. The [416] latter being accidentally present at the trial, the court called upon him to disclose the truth, and he refused to do so; hence a most violent presumption arises, that such a disclosure as he was called on to make, would have destroyed his claim. A partner has no right to use or endorse the signature of the firm, when the endorsement is npt made in a partnership transaction. It is not clear that one partner can use the endorsement of the firm for a private transaction, even with the express consent of the other. Partners, perhaps, have no right to jeopardize the interests of their creditors, by-using the name of the firm, to secure gambling debts. Any person, within the verge of the court, may be -callea on to testify and disclose the truth; and if he is called as a 'witness, or as a party, to answer interrogatories, he cannot urge, or excuse himself, that he was not summoned, or had no notice, to answer on that particular day. So, where the plaintiff is notified to answer interrogatories, in open court, and no day is fixed, „and he happens to be. present in court afilie trial, and refuses to answer, his presence will be considered a waiver of notice to «appear on a particular day, and he is, consequently, bound to answer, or on his refusal and neglect, the interrogatories will be taken [416] Presuming the facts suggested by the appellant- in his interrogatories to exist, let us examine their effect upon the case before us. The maker of the note transferred it to the appellee, after procuring its endorsement by the firm of W. P. & J. B. Scott. The former was therefore tbe owner, and if so, it was an accommodation paper, in which the endorser was merely a surety. The surety may avail himself of all the pleas, to which the principal is entitled, except such as are personal to the latter, as non-age, coverture, and the like. He may therefore plead the want of consideration, or an illegal one. In such a case the facts alleged would support the latter plea, to wit: a gaming consideration. It further appears, that the appellant did not endorse the note himself, and the endorsement not being made in a partnership transaction, his partner had no right to use the signature of the firm. It is not very clear, that if the note had been endorsed with the special consent of the appellant, the plaintiff could even then have obtained judgment thereon against the firm. Partners, perhaps, have no right to jeopardize the interests of their creditors, by. using the name of the firm to secure gambling debts. The conclusion at which the court has arrived on this part of the case, renders it unnecessary to notice the 'clerical mistake in date, as respects the notice of protest. - In remanding the cause, it becomes necessary to inquire into the propriety of the charge of the district judge, to the jury, with a view to ascertain whether any direction is to be given by this court. It appears to us, that our learned brother did not err. Any person within the vergé of the court, during the trial, may be called upon to disclose the truth. If he be called as a witness, he cannot urge that he was not summoned. If he [417] be called upon as a party to the suit, he has no better right to excuse himself on the ground that he was not ruled to answer on that particular day. The court will, however, see that he is not taken by surprise. In the present case, the plaintiff had been notified to answer interrogatories in open court, and necessarily during the trial. No particular day had been fixed, consequently no advantage could have been taken of his failure. His presence at the trial was a waiver of notice to appear on a given day; he was therefore bound to answer the interrogatories, or submit to the consequences of his refusal or neglect. Thus the jury were correctly instructed to take the interrogatories pro confessis. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded for a new trial; the plaintiff and appellee paying the costs of this appeal.