Pierce v. M'Connell

Blackford, J. — The plaintiffs in error brought an action of assumpsit against James M-Connell, Doctor James ML Connell, and George D. Parmenter, late partners, trading under the firm of James Mi Connell and Co. Doctor James M-Connell pleaded non assumpsit, and made affidavit of the truth of his plea; James M>Connell appeared and suffered judgment by nil dicit; and the writ was returned not served on the other defendant. The issue was tried by a jury, and a verdict and judgment rendered in favour of the defendant who pleaded. A deposition was offered in evidence on the trial by the plaintiffs, and a part of it suppressed on motion. The suppressed part of the deposition was respecting admissions which the witness had heard James M- Connell make of the existence of a partnership of tire defendants. The Court instructed the jury as follows : “ To entitle the plaintiffs to a verdict in this case, the proof of the partnership between Doctor James M-Connell, James M-Connell, and George D. Parmenter, at the date of the note given in evidence, as alleged in the declaration, must be such and so clear and certain, that were Doctor James My Connell now on his trial on an indictment for perjury for swearing to the truth of his plea, this jury upon the same evidence would find him guilty of perjury.” There was no error in suppressing the part of the deposition which we have noticed. Although the declaration or admission of an individual member of a firm that he is a partner, is evidence to charge himself, it is no evidence of the fact against any other party. 2 Stark. Ev. 807.—Corps v. Robinson et al. 2 Wash. C. C. R. 388.—Whitney v. Ferris, 10 Johns. 66.—Whitney et al. v. Sterling et al. 14 id. 215.—Robbins et al. v. Willard et al. 6 Pick. 464. In the case before us, there being a judgment by nil dicit against James M-Connell, and a return of not found as to Parmenter, the admissions in question that the three defendants sued were partners, could only affect Doctor James M1, Connell, who had pleaded to the action. But for that purpose, as the authorities cited show, the admissions were inadmissible. J. B. Howe, for the plaintiffs. D. H. ColericJc and T. Johnson, for the defendants. The instruction to the jury was wrong. The existence of a partnership, like most other facts, may be proved by one witness ; but it is otherwise as to the proof necessary to support an indictment for perjury. To sustain such an indictment, two witnesses, or one witness and Corroborating circumstances, are indispensable. Regina v. Yates, 1 Carr. & Marshman, 132. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.