#### The New-York Dry Dock Company *vs.*Treadwell.

*UTICA,*

*July, 1838.*

The non-joinder of a secret partner pleaded in abatement, verified by proof, is no bar to a recovery in an action by endorsees of a promissory note, unless knowledge of the partnership at the time of the transfer of the note be brought home to the plaintifis.

This was an action of *assumpsit*tried at the New-York circuit in February, 1836, before the Hon. Ogden Edwards, .one of the circuit judges.

The plaintiffs declared as the *endorsees*of a promissory note made by the defendant. The declaration also contained the common counts. The defendant pleaded in *abate*
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      *ment*that the promises were made jointly with one Roberts R. Taylor, who is still living, &c. on which issue was joined. On the trial the plaintiffs gave in evidence the note, and the (jefen¿ant, among other things, offered to prove that Taylor was a secret partner with him in business at the time the note was made, of which fact the plaintiffs were informed *soon after*they took the note. The judge rejected the evidence as insufficient, unless the defendant could show that the plaintiffs knew at the time the note was made and negotiated that Taylor was a partner. The defendant excepted, and the plaintiffs had a verdict. The defendant moves for a new trial.

*E. II. Ely,*for defendant.

*R. B. Bates*<£• *A, Crist,*for plaintiffs.

*By the Court,*

*Bronson, J.*

In *Dubois*v. *Ludert,*5 Taunt. 609, the common pleas decided that the non-joinder of a secret partner, might be pleaded in abatement, although the plaintiff had no knowledge of the partnership at the time the contract was made. But this decision is not warranted by some of the earlier cases, and seems not to have been followed in England. *Doo*v. *Chippenden,*Abbott on Ship. 76. *Ex parte Layton,*6 Vesey, 438. *Baldney*v. *Ritchie,*1 Stark. R. 338. *Stansfeld*v. *Levy,*3 Stark. R. 8. *Mullett v. Hook,*1 Moody & Mal. 88. In this ease Lord Tenterden said, he could not help thinking that the decision in Dubois v. *Ludert*had been disregarded, if not authoritatively overruled. Parke, who was of counsel for the defendant, acknowledged that his impression was to the same effect, and he did not avail himself of the leave granted by the judge to move to enter a nonsuit. See also Cullyer on Part. 425. Upon principle, I think the defendant should not be allowed to prevail on a plea of the. non-joinder of a dormant partner in abatement. It would often subject the creditor to delay and expense for the fault of the debtor in not disclosing the partnership at the time the contract was made. In this case the defendant offered to prove that the plaintiffs *527were informed that Taylor was a partner *soon after*they took the note. It was then too late. When the creditor, at the time the contract is made, is ignorant that the debtor had a secret partner, he has the option, on discovering the" partnership, of suing the debtor separately or of joining the dormant partner.

When an issue of fact joined on a plea in abatement is found against the defendant, the judgment for the plaintiff is final, *quod recuperet.*3 Wend. 258. 6 id. 649. I am not aware of any exception to the rule.

New trial denied.