STORY, Circuit Justice.
The cause has now been argued upon the bill and answers and proofs of the parties, and the court is to pronounce its decision on the facts and on the law. And I am entirely satisfied, that all the material allegations of the bill are fully proved. Indeed the only fact, which seems strenuously [1069]*1069denied, is the original authority, supposed to have been given to Mr. Benjamin Monroe, to contract the debt and give the bill of exchange stated in the plaintiff’s bill.
It is argued by the counsel for the executors, that independent of the testimony of Messrs. Monroe, Snow & Monroe, there is no evidence to prove the existence of such an authority; and that neither their answers, nor their depositions, are competent evidence to affect Mr. Clarke or his executors. As to the answers of Messrs. Monroe, Snow & Monroe, I admit that the answer of one defendant cannot, in general, be read against another co-defendant; otherwise, such co-defendant would be deprived of an opportunity of cross-examination. 3 P. Wms. 311. note H. But this rule is liable to exceptions; and, therefore, wherever the confession of any party would be good evidence against another, in such case his answer, a fortiori, may be read against the' latter. Peake, Ev. 55. In cases of partnership, the confession of one partner, in relation to a partnership concern, is in general; admissible in an action against the other.- Péake, Ev. 55; Gilb. Ev. 51, 57. It is not evidencio to prove the partnership itself; but that being once admitted or proved aliunde, the confession is then let in for all collateral purposes. It is admissible to take a case out of the statute of limitations (Whitcomb v. Whiting, 2 Doug. 652; Jackson v. Fair-bank, 2 H. Bl. 340). and to establish not merely the amount, but the existence of a joint demand even when made after a dissolution of the partnership (Wood v. Braddick, 1 Taunt. 104). In Grant v. Jackson, Peake. 203, Lord Kenyon held the answer of a bankrupt partner, made before his discharge under the commission, to be good evidence against the others: although he expressed his doubts, whether, if it had been made after his discharge, it would have been admissible. His lordship said, the answer was not evidence for all purposes; it could-not be received to prove the partnership; but that established, the answer of one may bind all.
In the ease at bar, it is admitted on all sides, that the several voyages stated in the bill were for the joint account and benefit of Mr. Clarke, and Messrs. Monroe, Snow & Monroe. In these several adventures, they must be considered as engaging in a limited partnership, or joint concern. Whatever, therefore, in relation to the transactions of that concern, is admitted by one party, is evidence against all. If, at the time of giving their answer, Messrs. Monroe. Snow & Monroe were not discharged from the plaintiff’s demand (as I still think they were not), the case would fall directly within the authority of Grant v. Jackson. If they were then discharged, notwithstanding the doubt of Lord j Kenyon, I still consider their answer as admis- j sible evidence. The good sense of the ride, as to the admissions of partners (and an answer is no more than an admission, though a very solemn one), is well expressed by Mansfield. C. J., in Wood v. Braddick, and fully supports the doctrine which I now hold.
But, admitting the answers of Messrs. Monroe, Snow & Monroe not to be admissible evidence, I should be glad to know, what is the legal exception to the competency of Messrs. S. Snow and J. Monroe, as witnesses in favor of the plaintiff. The general rule is, that where any defendant in a bill is not concerned in interest, either side may examine him as a witness; so where no material evidence is against him, and no decree can be had against him. Where a defendant is a party in interest, he cannot be heard as a witness in support of that interest. But if his evidence be sought for the purpose of charging himself, and in contradiction to his interest, there is no legal objection to his competency, if he chooses to testify. It is another question whether he can be compelled so to do. But, as a plaintiff in equity has a right to examine a defendant, as a witness, no objection lies in the mouth of the adverse party, unless such defendant be- legally incompetent. Dixon v. Parker, 2 Ves. Sr. 220. In the present case, no decree is sought against Messrs. Monroe and Snow. If the fact of insolvency created a legal bar, they are no longer parties in interest, and no decree can be had against them. They would then be -within the first part of the rule. If the act did not create a legal bar, they are called to charge themselves in connexion with Mr. Clarke, and so far from having an interest to support the plaintiff’s bill, their interest lies the other way. “Quacunque via data est,” they are clearly competent witnesses for the'plaintiff; however otherwise it might have been, if they had been examined by the executors to defeat the bill.
It is quite- immaterial to the plaintiff, whether the cause stand upon the answers or the depositions of Messrs. Monroe and Snow. In either case, the existence of an original authority in Mr. Benjamin Monroe, to draw the present bill of exchange in behalf of the ship owners is completely proved. I go, however, yet further; and consider, that independent of the answers and depositions of Messrs. Monroe and Snow, there is sufficient evidence attached to the answer of the executors, to relieve the cause from all difficulty on this point. Taking the letter of Mr. Benjamin Monroe, addressed to the ship owners on the day of the date of the bill of exchange (which informed them of the object, occasion and account, on which it was drawn, and the manner, in which the proceeds received thereon were invested on joint account), the subsequent accounts rendered by him to the ship owners, and settled with them, which contained a charge of the same bill; the receipt and division by the ship owners of the investment of such proceeds, not only without objection, but apparently with perfect satisfaction at his proceedings; I say, taking all these facts in connexion, I think it difficult to resist the impression. that Mr. B. Monroe’s conduct was understood by ali parties, as clearly within the scope of his original instructions. It matters not whether these were verbal or written instructions; they are equally to be regarded as binding upon the parties. If the facts (which [1070]*1070I have referred, to) do not establish this original authority (as I think they do), they indisputably establish the fact of a complete and unlimited ratification of the proceedings. And, in such a ease, a subsequent ratification will be to all intents and purposes equivalent to an original authority. The contract, if unauthorized, was not void; but voidable only at the election of the parties. The principles of eternal justice require, that no man should be permitted to build his fortune on the ruins of violated faith. If he will knowingly take the fruits of an unauthorized enterprise, undertaken for his benefit, and on his account, he must take them with their burthen. -‘Qui sentit commodum, sentire debet et onus." In my judgment, so far as this point goes, it is a matter of pure indifference to the plaintiff’s right, whether the exchange was drawn under an original authority from the ship owners, or was subsequently ratified by them. • On all the grounds, however, which I have stated, I am of opinion, that the fact of authority in Air. B. Alonroe, to draw the exchange in question, is placed beyond the reach of legal doubt.
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STORY, Circuit Justice.
The cause has now been argued upon the bill and answers and proofs of the parties, and the court is to pronounce its decision on the facts and on the law. And I am entirely satisfied, that all the material allegations of the bill are fully proved. Indeed the only fact, which seems strenuously [1069]*1069denied, is the original authority, supposed to have been given to Mr. Benjamin Monroe, to contract the debt and give the bill of exchange stated in the plaintiff’s bill.
It is argued by the counsel for the executors, that independent of the testimony of Messrs. Monroe, Snow & Monroe, there is no evidence to prove the existence of such an authority; and that neither their answers, nor their depositions, are competent evidence to affect Mr. Clarke or his executors. As to the answers of Messrs. Monroe, Snow & Monroe, I admit that the answer of one defendant cannot, in general, be read against another co-defendant; otherwise, such co-defendant would be deprived of an opportunity of cross-examination. 3 P. Wms. 311. note H. But this rule is liable to exceptions; and, therefore, wherever the confession of any party would be good evidence against another, in such case his answer, a fortiori, may be read against the' latter. Peake, Ev. 55. In cases of partnership, the confession of one partner, in relation to a partnership concern, is in general; admissible in an action against the other.- Péake, Ev. 55; Gilb. Ev. 51, 57. It is not evidencio to prove the partnership itself; but that being once admitted or proved aliunde, the confession is then let in for all collateral purposes. It is admissible to take a case out of the statute of limitations (Whitcomb v. Whiting, 2 Doug. 652; Jackson v. Fair-bank, 2 H. Bl. 340). and to establish not merely the amount, but the existence of a joint demand even when made after a dissolution of the partnership (Wood v. Braddick, 1 Taunt. 104). In Grant v. Jackson, Peake. 203, Lord Kenyon held the answer of a bankrupt partner, made before his discharge under the commission, to be good evidence against the others: although he expressed his doubts, whether, if it had been made after his discharge, it would have been admissible. His lordship said, the answer was not evidence for all purposes; it could-not be received to prove the partnership; but that established, the answer of one may bind all.
In the ease at bar, it is admitted on all sides, that the several voyages stated in the bill were for the joint account and benefit of Mr. Clarke, and Messrs. Monroe, Snow & Monroe. In these several adventures, they must be considered as engaging in a limited partnership, or joint concern. Whatever, therefore, in relation to the transactions of that concern, is admitted by one party, is evidence against all. If, at the time of giving their answer, Messrs. Monroe. Snow & Monroe were not discharged from the plaintiff’s demand (as I still think they were not), the case would fall directly within the authority of Grant v. Jackson. If they were then discharged, notwithstanding the doubt of Lord j Kenyon, I still consider their answer as admis- j sible evidence. The good sense of the ride, as to the admissions of partners (and an answer is no more than an admission, though a very solemn one), is well expressed by Mansfield. C. J., in Wood v. Braddick, and fully supports the doctrine which I now hold.
But, admitting the answers of Messrs. Monroe, Snow & Monroe not to be admissible evidence, I should be glad to know, what is the legal exception to the competency of Messrs. S. Snow and J. Monroe, as witnesses in favor of the plaintiff. The general rule is, that where any defendant in a bill is not concerned in interest, either side may examine him as a witness; so where no material evidence is against him, and no decree can be had against him. Where a defendant is a party in interest, he cannot be heard as a witness in support of that interest. But if his evidence be sought for the purpose of charging himself, and in contradiction to his interest, there is no legal objection to his competency, if he chooses to testify. It is another question whether he can be compelled so to do. But, as a plaintiff in equity has a right to examine a defendant, as a witness, no objection lies in the mouth of the adverse party, unless such defendant be- legally incompetent. Dixon v. Parker, 2 Ves. Sr. 220. In the present case, no decree is sought against Messrs. Monroe and Snow. If the fact of insolvency created a legal bar, they are no longer parties in interest, and no decree can be had against them. They would then be -within the first part of the rule. If the act did not create a legal bar, they are called to charge themselves in connexion with Mr. Clarke, and so far from having an interest to support the plaintiff’s bill, their interest lies the other way. “Quacunque via data est,” they are clearly competent witnesses for the'plaintiff; however otherwise it might have been, if they had been examined by the executors to defeat the bill.
It is quite- immaterial to the plaintiff, whether the cause stand upon the answers or the depositions of Messrs. Monroe and Snow. In either case, the existence of an original authority in Mr. Benjamin Monroe, to draw the present bill of exchange in behalf of the ship owners is completely proved. I go, however, yet further; and consider, that independent of the answers and depositions of Messrs. Monroe and Snow, there is sufficient evidence attached to the answer of the executors, to relieve the cause from all difficulty on this point. Taking the letter of Mr. Benjamin Monroe, addressed to the ship owners on the day of the date of the bill of exchange (which informed them of the object, occasion and account, on which it was drawn, and the manner, in which the proceeds received thereon were invested on joint account), the subsequent accounts rendered by him to the ship owners, and settled with them, which contained a charge of the same bill; the receipt and division by the ship owners of the investment of such proceeds, not only without objection, but apparently with perfect satisfaction at his proceedings; I say, taking all these facts in connexion, I think it difficult to resist the impression. that Mr. B. Monroe’s conduct was understood by ali parties, as clearly within the scope of his original instructions. It matters not whether these were verbal or written instructions; they are equally to be regarded as binding upon the parties. If the facts (which [1070]*1070I have referred, to) do not establish this original authority (as I think they do), they indisputably establish the fact of a complete and unlimited ratification of the proceedings. And, in such a ease, a subsequent ratification will be to all intents and purposes equivalent to an original authority. The contract, if unauthorized, was not void; but voidable only at the election of the parties. The principles of eternal justice require, that no man should be permitted to build his fortune on the ruins of violated faith. If he will knowingly take the fruits of an unauthorized enterprise, undertaken for his benefit, and on his account, he must take them with their burthen. -‘Qui sentit commodum, sentire debet et onus." In my judgment, so far as this point goes, it is a matter of pure indifference to the plaintiff’s right, whether the exchange was drawn under an original authority from the ship owners, or was subsequently ratified by them. • On all the grounds, however, which I have stated, I am of opinion, that the fact of authority in Air. B. Alonroe, to draw the exchange in question, is placed beyond the reach of legal doubt.
An objection to the plaintiff’s right of recovery of rather a more technical nature is, that tlie bill of exchange is drawn by Air. Benjamin Alonroe in his own name, and not in the name of the joint owners; and therefore no remedy lies against the latter, under any circumstances, in favor of the plaintiff, because his title cannot reach beyond the parties to the bill. It is admitted in the answer of the executors, and indeed is demonstrated by the whole evidence, that the money, for which the bill was given, was taken up and actually applied for the joint account and benefit of all the concern. Under such circumstances, the objection is grossly inequitable, and I shall feel great consolation, if sitting in a court of equity, I can get rid of a mere technical nicety, and dispense justice according to the substantial merits of the cause.
The bill of exchange does not, in my judgment, purport to be drawn by Air. Benjamin Alonroe on his own private account; it is manifestly drawn on account of Alessrs. Clarke, and Alonroe, Snow & Alonroe. and is to be charged to their account. That it was not drawn technically in the name of these parties, was probably owing to a mere mistake or ignorance of the legal distinction. It was drawn for moneys advanced to the concern, and was to be paid and charged on their account. In what character had Air. Benjamin Alonroe a right to draw on the joint funds? Certainly in no other character, than as a partner, or as an agent. When, therefore, he undertook to charge the joint funds on the face of the bill, every person, who became a party to it, must have considered him as acting, not on his own private account, but on account of the joint concern; not merely as incurring a personal responsibility, but as pledging the joint funds either under an authority vested in him as a partner or as an agent. It might be indiscreet to trust to his mere personal representation of his having such an authority; but if it actually existed, the other partners or joint principals must be in conscience and in equity bound by his acts to all persons, who trusted him on their account in faith of such authority. Mal. Lex Merc. 272. And if such authority did not exist, a subsequent ratification would enure to the full benefit of all the parties, who had advanced moneys, or acted on the faith of his stipulations. In this view, it is not very material to the present cause, what would be the mere legal construction in an action at law. as to what persons are parties to the bill, because the joint owners must be deemed to have contracted with the holder of the bill, that the drawer had a right to draw, and that they would supply funds to discharge .it at maturity. In equity, therefore, upon the footing of such contract. I feel no difficulty in reaching all the parties, who were beneficially interested. I do not mean, however, to decide that even at law, this bill would be deemed the separate draft of Air. Benjamin Alonroe. Perhaps, under all the circumstances, it might be questionable, if, on the face of the instrument, it might not be susceptible of being construed a partner ship draft. The decision on this point may perhaps be distinguished. See Thomas v. Bishop, Cas. t. Hardw. 1, 2 Strange, 955; Chitty (4th Ed.) pp. 40, 104; Mal. Lex Merc. 272. But even admitting the bill to be deemed the separate draft of Air. Benjamin Alonroe, there is another view of this case, in which the plaintiff’s right to recover is conclusively established, and that is, that under the circumstances, the authority confided to Air. Alonroe must be deemed to have entitled him to draw in his own name on the joint funds, and to have guaranteed to the holder an acceptance and payment by the drawee. Suppose the joint owners had given written instructions to Air. Benjamin Alonroe as follows: “You are authorized to take up $20,-000 on credit on our account; draw in your own name on Alessrs. Daniel Crommelin & Sons, at Amsterdam, on our account, for that sum. or any less sum, and we engage that the drawee shall there accept and pay the same;” and such instruction had been shown to the plaintiff, who had advanced the money upon the faith thereof; I suppose, that no person would doubt, that he would have a perfect remedy at law against the owners. If the instructions were to draw on themselves payable to Alessrs. Crommtdin & Sons, I should have little doubt, upon the footing of Pillans v. Van Mierop. 3 Burrows. 1653, and Pierson v. Dunlop, Cowp. 573, notwithstanding the recent discussions in Johnson v. Collings, 1 East. 98, and Clarke v. Cock. 4 East. 57, in holding them hour 1 as acceptors. But in a court of equity, where the real nature of the contract is disclosed, and a remedy is sought upon the whole merits. there could be no difficulty in giving rhe plaintiff, under either of the supposed in[1071]*1071structions, a complete relief against all the owners: for they must be held to be in effect the substantial acceptors or guarantors of the bilL
Affirmed in principle by supreme court of United States, but sent back on another point. [Clarke v. Van Riemsdyk] 9 Cranch [13 U. S.] 158.
Now, saying that the authority in the present ease is verbal and not written, 1 cannot distinguish the supposed from the real trans actions; and that, in point of law, there is no difference between a written and a verbal authority, as to this point, is abundantly clear. Anon., 12 Mod. 564; Chit. Bills (4th Ed.) p. 35, etc.
It has been objected, that if the bill is to be considered as drawn by Mr. Benjamin Monroe, in his own name, in pursuance of an authority so confided to him, it is then an agreement by the joint owners to pay the debt of Mr. Monroe, and so within the statute of frauds. If the statute of frauds could apply to a foreign contract, made and to be executed in a foreign country (and I would ask if it can so apply?) there is no foundation for the suggestion. It is clear, that the debt would not be the debt of a third person, but the debt of the parties undertaking to pay it. It might be contended with much greater plausibility, that a verbal acceptance of a bill of exchange was within the statute. The same answer may be given to the same objection, which has been urged against the legal efficacy of the subsequent ratification.
On the whole, I am entirely satisfied, that the plaintiff has a clear equitable title against the executors in this suit; and I am glad, that as a foreigner, he is not deprived of his remedy, from an objection, which has no foundation in commutative justice, and is probably never dreamed of beyond the narrow walks of the common law.
The next consideration is, what ought to be the decree of the court? The executors contend, that it ought to be a decree against all the parties, according to their respective interests in the voyage, or at all events that Mr. Clarke’s estate ought not to be charged beyond the moiety actually received by him.
No decree is sought by the plaintiff against Messrs. Monroe. Snow & Monroe. The ground of equitable jurisdiction is their absolute insolvency. They have become insolvent under the act of the state, and from that axáses a pregnant presumption of a continuing insolvency, which must remain until removed by opposing proof. None such is produced; and the other evidence in the cause, so far as it goes, fortifies the legal presumption. There is no reason, therefore, why the court should make a decree, which the whole evidence shows must be vain and ineffectual; and I do not think, rliat the a authorities require it. Lane v. Williams. 2 Vern. 292; Heath v. Percival. 1 P. Wins. 682; Bishop v. Church. 2 Ves. Sr. 101.
As to the other ground, that Mr. Clarke’s estate ought not to be charged beyond the property received by him. I should be glad to have seen an authority to support such a discrimination. The ground of relief in cases of this nature is, that the joint contract is in equity deemed a joint and several contract, so that each party is liable to the whole; and that, though at law the remedy is against the survivor only, yet the estate of the deceased is pledged to indemnify the creditor against any deficiency. 2 Vern. 292; 2 Ves. Sr. 101, 371; 3 Ves. 277, 399, 573, 566. The whole amount of the bill remaining unpaid, and the surviving parties being utterly unable to pay it. Mr. Clarke’s estate must therefore be charged with the whole.
I decree, that the plaintiff recover, against the executors of Mr. Clarke, the principal sum mentioned in the bill, ten per cent, damages for non-payment, and interest on these two sums from the time of non-payment to the time of rendering this decree, amounting to 811.326.14. in the whole.