Shiras v. Morris

¶1I am inclined to think Cooke was an incompetent witness. He had no authority, as agent of the company, to draw a bill of exchange upon them. Ho express authority is pretended. He was rather the sub-agent of Fulton, than the agent of the company ; and it affirmatively appears that this was the only bill ever drawn by him on- the company. They, therefore, have never ratified or sanctioned this assumed authority. The bill was moreover drawn in the individual name of Cooke, not as agent; and there is nothing *appearing on the face, *62of the bill to show that he was acting in a representative capacity. Independently of his own testimony, which, upon the preliminary inquiry, must be excluded, (Mott v. Hicks, 1 Cowen, 535,) there is nothing in the case to show that the witness advanced the money on the credit of the defendants; and not upon the individual credit of the witness, Cooke. It would seem, therefore, that he must be responsible to the plaintiff if this action should fail; and, of course, had a direct interest in the event of the suit. (Chit. on Bills, 36, note (1,) and the cases there cited. 11 Mass. Rep. 27, 54. 5 Mass. Rep. 299. 6 Mass. Rep. 58. 16 John. 1. 1 Cowen, 513.)

¶2Upon the testimony of Cooke, I think the plaintiff was entitled to recover. He proves an acknowledgment of this debt as a debt of the company, and a promise to pay it by Morris and Lynch acting as a committee of the company. [1] He also shows that the money was appropriated to the use of the company ; and even admitting that his agency, strictly, terminated at the death of Fulton, (which, however, I do not think was the case,) yet the continuance of his authority as agent subsequent to that period, is admitted on the part of the company, by the whole course of their correspondence with him.

¶3But on the first ground a new trial must be granted.

¶4Hew trial granted.