LIVINGSTON, J.
delivered the opinion of the court. The first question made in this cause regards the consideration of the note, and the other the liability of Patrick, the instrument having been made for the private debt of Hastie, and delivered to the plaintiff, who knew it was not given on a partnership account.
Whether the mere want of consideration, even between the original parties, can be alleged against a promissory note, or a bill of exchange, may well be doubted. It is not necessary, as in other simple contracts, to state a consideration in the declaration; the instrument itself imports ,one, and in this respect partakes of the quality of a speci-ality. Nor is the plaintiff bound to prove his giving any value for such paper, unless when he sues as bearer of a bill, transferrable by delivery, and that under suspicious circumstances. Grant v. Vaughan, 3 Burr. 1516. No case can be found where the want of consideration alone has been admitted as a good defence. As against the payee, the maker, it is true, has been permitted to show, not a want, but a failure of consideration, and in all cases he may insist on the illegality of it. Chitty, in his treatise on bills, *says, that the want of consideration may be relied on, but not one of the decisions which he cites will bear him out.
On the other point, which respects the liability of Patrick, there can be no difficulty. It is certain, that’ the power of one partner to bind the other is very great, and for the purpose o.f trade it should be so. When there is a known partnership, it is right that any one dealing with either of the partneii.', as such, should have recourse to all of them for his contracts, and if he abuse the confidence which his associates repose in him, strangers should not suffer. But it is not necessary for trade that this authority over each other should extend to matters totally unconnected with the objects of their association, and which it is impossible any articles ol partnership could have contemplated. Were that the case, it would put an end to those connexions altogether. Ii can never be the intention of those who form companion of this nature, nor can it be the expectation of the world, that every partner is to pledge the general responsibility for his private debts, contracted before or after the partner/hip. When any one, therefore, takes a partnership note, from one of the company, for what he knows to be his ¡.articular debt, without consulting or apprizing the other members of his intention, or obtaining their consent, there is no hardship in confining his remedy to ibe one whose debt it was.(a) Tbis rule we adopt as one that will produce the least mischief, will prevent an improper-use of the partnership firm, will confine persons,thus associated, within proper bounds, and will destroy every inducement in' strangers to obtain, by practice or fraud, a security against the whole company for the individual debt of any member. The plaintiff herd knew the note was'given for Hastie’s own debt, and it does not appear that Patrick consented to his name being used; the defendants, therefore, must have judgment.
In 1 Bast, 48, is a case decided ón the same principles. *Two partners, prior to their connexion with another person, had contracted a debt, for which they afterwards accepted, in the name of the new firm, a bill, drawn by their creditor, who commenced a suit on it. The court were unanimous that the new partner was not liable on this bill.
There is also a case, decided by Lord Kenyon, at nisi prius, of Arden v. Sharpe and Gilson, (2 Esp. Rep. 524,) not very unlike this. Only the party who took the bill,' endorsed by Sharpe and Gilson, was informed by Gilson, one of the partners, that the transaction was to be concealed from the other. ' The ground, however, on which his lordship decided, is the same which has been here taken. “The transaction,” he said, “indicated that the money was for Gilson’s own use, and not raised' on the partnership account.”
We think even in the second suit the plaintiff ought not to recover. The defendant endorsed the note of' Hastie and Patrick, as their surety, believing it to be good against both, but in the preceding case, we have determined it not to be binding on the latter, and as the plaintiff, who was this defendant’s immediate endorsée, knew on what account it was made, and must, therefore, be presumed to have [250]
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LIVINGSTON, J.
delivered the opinion of the court. The first question made in this cause regards the consideration of the note, and the other the liability of Patrick, the instrument having been made for the private debt of Hastie, and delivered to the plaintiff, who knew it was not given on a partnership account.
Whether the mere want of consideration, even between the original parties, can be alleged against a promissory note, or a bill of exchange, may well be doubted. It is not necessary, as in other simple contracts, to state a consideration in the declaration; the instrument itself imports ,one, and in this respect partakes of the quality of a speci-ality. Nor is the plaintiff bound to prove his giving any value for such paper, unless when he sues as bearer of a bill, transferrable by delivery, and that under suspicious circumstances. Grant v. Vaughan, 3 Burr. 1516. No case can be found where the want of consideration alone has been admitted as a good defence. As against the payee, the maker, it is true, has been permitted to show, not a want, but a failure of consideration, and in all cases he may insist on the illegality of it. Chitty, in his treatise on bills, *says, that the want of consideration may be relied on, but not one of the decisions which he cites will bear him out.
On the other point, which respects the liability of Patrick, there can be no difficulty. It is certain, that’ the power of one partner to bind the other is very great, and for the purpose o.f trade it should be so. When there is a known partnership, it is right that any one dealing with either of the partneii.', as such, should have recourse to all of them for his contracts, and if he abuse the confidence which his associates repose in him, strangers should not suffer. But it is not necessary for trade that this authority over each other should extend to matters totally unconnected with the objects of their association, and which it is impossible any articles ol partnership could have contemplated. Were that the case, it would put an end to those connexions altogether. Ii can never be the intention of those who form companion of this nature, nor can it be the expectation of the world, that every partner is to pledge the general responsibility for his private debts, contracted before or after the partner/hip. When any one, therefore, takes a partnership note, from one of the company, for what he knows to be his ¡.articular debt, without consulting or apprizing the other members of his intention, or obtaining their consent, there is no hardship in confining his remedy to ibe one whose debt it was.(a) Tbis rule we adopt as one that will produce the least mischief, will prevent an improper-use of the partnership firm, will confine persons,thus associated, within proper bounds, and will destroy every inducement in' strangers to obtain, by practice or fraud, a security against the whole company for the individual debt of any member. The plaintiff herd knew the note was'given for Hastie’s own debt, and it does not appear that Patrick consented to his name being used; the defendants, therefore, must have judgment.
In 1 Bast, 48, is a case decided ón the same principles. *Two partners, prior to their connexion with another person, had contracted a debt, for which they afterwards accepted, in the name of the new firm, a bill, drawn by their creditor, who commenced a suit on it. The court were unanimous that the new partner was not liable on this bill.
There is also a case, decided by Lord Kenyon, at nisi prius, of Arden v. Sharpe and Gilson, (2 Esp. Rep. 524,) not very unlike this. Only the party who took the bill,' endorsed by Sharpe and Gilson, was informed by Gilson, one of the partners, that the transaction was to be concealed from the other. ' The ground, however, on which his lordship decided, is the same which has been here taken. “The transaction,” he said, “indicated that the money was for Gilson’s own use, and not raised' on the partnership account.”
We think even in the second suit the plaintiff ought not to recover. The defendant endorsed the note of' Hastie and Patrick, as their surety, believing it to be good against both, but in the preceding case, we have determined it not to be binding on the latter, and as the plaintiff, who was this defendant’s immediate endorsée, knew on what account it was made, and must, therefore, be presumed to have [250]*250known that it was good against Hastie alone, bis action against the endorsor cannot be sustained. If the plaintiff should have judgment in this second suit, the defendant, who is an innocent payee of the note, and was unacquainted with the circumstances under which it was issued would, in another action, be enabled to recover from the makers, and in this way the judgment just rendered would be defeated. For, although the party, who receives from one partner a note of the company, for his separate debt, cannot, according to this decision, maintain a suit against the other partners, it will not follow that a holder of the note, unap-prized of this circumstance, will labor under the same disability. As well, then, to prevent this consequence, as be; cause the note, is not such a one as the party supposed he was endorsing, the defendant must have judgmenta[1]
Judgment in each suit for the defendant.
It has long been settled that between immediate parties to a note a consideration is necessary; of this the note is prima facie, but not conclusive evidence, though it turns the proof on the defendant to show there was none. Brown v. Marsh, Gilb. Rep. 154; Jerome v. Whitney, 1 Johns. Rep. 323. The whole of the reasoning of the learned judge, on this point, is extrajudicial, and, I say it with regret, is of no authority; nay, authority is againsi it. Pearson v. Pearson, 7 Johns. Rep. 26.