#### GOODENOW *v.*DUFFIELD, SURVIVOR OF BAIRD.

Private bankers — partnership—partners—declarations bind them — bank notes — levy.

Where two have teen in partnership, and one is dead, the declarations of either, as to their partnership liability, is evidence against the survivor*

The act of 1824, relative to suits where banks and bankers are parties, does not change the' law of the actions, as it regards parties and privies, it only authorizes a recovery on the common counts for any notes of the bank held at the time of the trial.

If it appear that the defendant was a stockholder in an unincorporated bank, and ‘the notes ' offered in evidence were issued by the bank, he is prima facie liable.

*456If a bundle of bank notes is found in a desk, levied upon and sold as the property of the cashier of a bank, but were the property of the bank, unissued or redeemed, the subsequent levy upon the notes as the property of the cashier, and sale by the sheriff, conferred upon the purchaser no right to recover of the bank.

Promissory notes are not the subject of levy on execution.

Debt for money had and received. Plea nil debet. It appeared in evidence, that an unincorporated banking company was in operation in 1817, and ceased to do business in 1818; that the defendant, Duffield, was president of it, and Baird the cashier, and both acted as partners. The plaintiff then produced a bundle, containing in all about $2500, of the bills of that bank, of various denominations, and proved the handwriting of the *president*and *cashier. A*part of these bills were tickets of less denomination than *one dollar, receivable at the bank in payment*or on deposite.

*J. & D. L. Collier,*for the plaintiff,

called a witness to prove the declarations of Duffield and Baird, as to their being partners.

*Marsh,*contra, objected.

*Colliers*

offered the bundle of notes in evidence, under the act regulating proceedings against bankers, passed in 1824.

*Marsh*objected.

The notes are payable to *bearer,*and there is no privity between the holder and the maker, to sustain the action of debt. Even assumpsit could not be sustained by the bearer, without showing how he came by the paper. He must make a title in himself. The notes receivable, contain no obligation to pay money. The statute does not change the law of the action; it only authorizes a recovery, for the notes held at *the trial.*

By the Court.

What Duffield said is evidence. As to Baird, the question is not so clear. It is in evidence, that they acted together as copartners in this bank, and both have signed the notes. We will admit the evidence, and you can raise the question hereafter if you choose.

The witness testified that he heard Duffield say he was a stockholder, and Baird, that he was interested. Both of them solicited him to take and circulate their notes.

By the Court. The act of 1724 authorizes plaintiffs in suits against banks and bankers, on account of *notes or bills issued by them, to declare generally for money had and received,*and to give in evidence at the trial, *any notes of the banker, then held.*We incline to think the statute does not change the law of the action, as it regards parties and privies. But we will admit the evidence, and keep the question open for discussion, if the parties shall desire it.

The defendant then offered evidence to show that in 1829, the sheriff levied an execution upon a desk, the property of Baird, and *457sold it. After the sale, and the desk was delivered, there was found in it a bundle, sealed up, and marked, /. *Wilson,*which being opened, was found to contain Jefferson bank notes, and some tickets. The sheriff took and lit his segar with one of these notes, and replaced the note, partly burned, in the bundle. He then levied his execution upon them, and returned the levy unsold for want of time. A vendi was taken out in 1822, and the notes were sold at auction to an agent of the plaintiff, for *$18*25, and that much returned as money made on the execution. The plaintiff said, at the time of the purchase, if they are worth any thing, they were a great bargain, and that they were worth more to a lawyer, than any one else.-

The Court, to the jury. If you are satisfied from the evidence adduced by the plaintiff, that the defendant, Duffield, was a partner of the Jefferson Bank Company, or held himself out as such, and that the bills exhibited were issued by the bank, then the plaintiff has established a prima facie right to recover the amount, with interest from the time payment was demanded, or from the time the bank ceased to redeem its notes in specie^ This prima facie case-will determine your verdict, unless the defendant shall have destroyed its obligation by a legal defence. The defence set up, is that these notes were in the desk of the cashier of the bank, and were its property, either never having been issued, or having been returned and redeemed — that they were levied upon in that situation, under an execution against Baird, the cashier, and sold to the plaintiff’s agent. If this defence be made out by proof, we think the plaintiff has no right to recover. The promissory notes of a man, in his own possession, unissued, are not the subject of levy on execution.

Verdict for the defendant. No motion being made, judgment was accordingly entered.