Given v. Albert

The opinion of the Court was delivered by Sergeant, J. A number of errors have been assigned in relation to matters of evidence and the charge of the court, each of which it is necessary to notice in detail. The first error is in the admission of the deposition of Nehemiah Stockley, which was objected to in whole and in part. The objection to the whole will be considered under the next bill. The part particularly specified was that in which the witness, after stating that James Given told him one of his sons was to manage the factory, and the other was to continue in the store in town, says, “ but the whole course of his remarks led me directly to the inference, that he himself was the real owner of both establishments, and that the sons were associated with him for the purpose, perhaps, 'of giving them better standing in society, and putting them forward in business.” This is objected to as merely matter inferred by the witness himself, and not the evidence of facts or declarations of the parties. And we think the evidence was, on that account, inadmissible. To prove a partnership by the acts and declarations of parties, what they said or did is to be stated, not what a witness infers or conceives in his own mind. He may often form conclusions founded on misconception. It is for the jury to make [338] the inference, and to that end the premises must be laid before them, and not the inference or understanding of the witness. The second, third, fourth and fifth errors are in admitting evidence of statements and letters by James Given, in relation to dealings with other persons than the plaintiffs, in the years 1829, 1830 and 1832, tending, as is alleged, to show' a partnership between him and Samuel in the carpet factory and hardware store. If they were any, even the slightest evidence to that effect, they were admissible, and the jury, under the direction of the court, were to judge of their effect. Some expressions are to be found in them of that nature, though by themselves they would seem to amount to but little. They were, therefore, properly admitted. I pass over the sixth bill for the present, and come to the seventh. The defendants offered a promissory note drawn by Samuel Given, dated Baltimore, 9th November, 1829 to show that Samuel Given was on that day in Baltimore, and thus impair the evidence given by the plaintiff, that James Given on that day made the present purchase in Baltimore. We do not think this is evidence of the fact. It might be better proved otherwise, and the note might be dated in Baltimore, though actually drawn elsewhere. There was no error in this rejection. ’ Samuel Given, one of the defendants, in his own right, and also as executor of James Given, was offered as a witness on his own behalf, evidence being first tendered of his final discharge under the Bankrupt Act, and the offer was renewed after the plea of discharge as a bankrupt. He was rejected, and we think properly. No authority has been cited that goes so far as to say, that a defendant while a party on the record, litigating the case, wms ever admitted as a witness in his own behalf, when objected to by the plaintiff! Could the defendants have had his name struck off from the record on the plea of bankrupty, the end might have been attained so far as respects the suit against him in his individual right; but this was not asked for, perhaps for sufficient reasons, and therefore he still remained a party to the suit and liable to the costs accrued from the time of his discharge. As executor also, the same state of things continued: nor is it easy to see any ground on which his name as executor could be struck off, without the plaintiffs’ consent, even though he became a bankrupt during the trial: for his office of executor still continued, and as such, the case must proceed against him, and he must continue a party. There was no error we think in this. The transfer of the goods was evidence as part of the res gestee on the question whether or not the defendants were partners. It is true, circumstances subject it to the charge of being fraudulently concocted by the parties after its date, and after claims were foreseen. But this is matter of comment to the jury, bearing on the good faith and honesty of the instrument, not on its competency. As to its proof, as the witness, Robert Given, became interested [339] after its date and ostensible execution, the defendants ought not thereby to lose the evidence. Proof of his handwriting and that of the parties would be sufficient prima facie for its being read in evidence, and circumstances of suspicion to the contrary, are matters of evidence or argument for the plaintiff. It is apparent, however, to any one who peruses this record, that the turning point of the case was the evidence given by Wordebaugh, going to show the circumstances of the sale of the goods by the plaintiff. Without that, the other evidence to make out the partnership would, perhaps, not have availed. Now the defendants would be liable as partners, if a partnership really existed at the time of this sale, though unknown to the plaintiffs—or if the plaintiffs at the time of the sale were induced to believe such a partnership existed, and they sold the goods on the faith of such assertions and conduct, although, in fact, there was no such partnership. The first question is merely a matter of fact for' the jury on the evidence. The second is a distinct question; and we are of opinion, that the conversation of James Given, as proved by Wordebaugh, contains nothing that could justify the plaintiffs in believing a partnership existed; on the contrary, when he told them to charge them either to himself or Samuel, he gave them the option to charge one or the other, and the plaintiffs making their choice to chai’ge Samuel, were bound by it. There is nothing amounting to an assertion of partnership, but rather the reverse. We think the court erred in their charge in those parts of it in which they told the jury, that the defendants were liable as partners if the jury believed the testimony of Wordebaugh, whether a partnership actually existed or not. The only remaining question is, as to the right of the plaintiffs to proceed against Samuel Given, the survivor of the alleged partners and the executors of James Given, in a joint suit. Whatever a court of equity might be able to do in such a case, yet it seems to us, the difficulties attending a common lawsuit render it impracticable to carry the doctrine of Lang v. Keppele to this extent. A joint judgment cannot be rendered because the executors are not personally liable, although Samuel Given is. Two separate judgments against defendants in a joint action of assumpsit are unknown, ana would be too questionable an innovation. The voluntary appearance of the executors is no more than a waiver of a scire facias: it cannot be considered as an agreement to be liable out of the usual mode. It seems to us, that the executors could be reached, on this ground, only by a new suit against them, founded on the insolvency of the surviving partner: and that the difficulty founded on the lapse of time would be relieved, for one year, by the second section of the limitation Act of 1785. Judgment reversed.