#### WEED & BENEDICT v. BENJAMIN RICHARDSON and The Executors of A. M'DOWELL.

A partnership security taken for the debt of one of the partners, without evidence of the assent of the others, is void at law. In an action against two, there cannot be a judgment against both for part of the demand, and against one of them for the residue; and an amendment in the appellate count, will be allowed only upon the payment of all costs.

The plaintiffs were merchants in Charleston, South Carolina, to whom the defendant, Richardson, became indebted, in the sum of fourteen hundred and thirty-six dollars and fifteen cents, for goods to supply a country store, which he had established in Buncombe county. The debt was secured by Richardson’s note, which had been due a considerable time prior to the 20th of March, 1832; and the plaintiffs had indulged him on his application. On the 20th of March, 1832, M'Bowell, the intestate of the other defendants, became a partner with Richardson, and others, in that store, and others; all which were under the general management of Richardson, under the name ofB. Richardson & Co.; and on the 19th of June, 1832, Richardson, without the assent or knowledge of M'Dowell, gave to the plaintiffs the promissory note of B. Richardson & Co., for the before-mentioned debt of his own, payable the 1st day of December following: and at the same time gave to them another promissory note of the firm for one hundred and eighty-three dollars and fifty cents, payable six months after date, for merchandize then purchased for the firm of B. Richardson & Co. M'Dowell having died, the plaintiffs instituted this action of debt against Richardson and the executors of M'Dowell, in which they declared in one count on the small note, and in a second count on the other. The case came on for trial at Burke, on the last Circuit, before Settle, Judge, upon the general issue; and his Honor, upon the facts appearing as above stated, instructed the jury, that as the consideration of the note declared on in the second count, was the debt of Richardson individually, and *536that was known to the plaintiffs, it was fraudulent in law on M‘Dowell to take the note of the partnership therefor. The jury found a verdict against all the defendants on the first count, and against Richardson, and in favour of M'Dowell’s executors, on the second count; ’ and after motion for a new trial for misdirection, overruled, and a judgment for the plaintiffs according to the verdict, they appealed.

No counsel appeared for the plaintiffs.

Iredell and Caldwell, for the defendants.

Ruffin, Chief Justice,

having stated the case as above, proceeded as follows:

This Court approves of the directions to the jury. It is stated, that the note was given without the assent of M‘Dowell; and there are no circumstances in the case from which any reasonable belief on the part of the creditors can be justly inferred, that it was given with his consent. It is now well settled at law, that it is prima facie fraudulent for a separate creditor of one of the firm to take from him the security of the firm: for it is a security which the creditor knows his separate debtor ought not to give, without the consent of the firm; and therefore he cannot honestly take it. Cotton v. Evans, 1 Dev. & Bat. Eq. Rep. 284.

But the Court is unable even to affirm the judgment as far as it goes for the plaintiff. In an action against two, there cannot be a judgment against both for part of the demand, and against one of them for the residue — thus requiring different writs of execution upon the same judgment. All that can be done here is to allow the plaintiffs to amend by striking out, at their election, one of the counts in the declaration, and that part of the verdict which relates to such count; and then they may have a corresponding judgment. This is allowed in this Court, because it would be an amendment of course in the Court below, to answer the justice of the case. Grist v. Hodges, S Dev. 198. But an actual amendment being necessary, the *537plaintiff must pay the costs in both Courts, as a condition.

Per Curiam. Judgment accordingly.