What assignee of bond for purchase I. Competency of evidence on issue as to
money must prove that the as-
signment was for value. See As-
existence of partnership.
signment No. 4, and Breckenridge v. 1. In assumpsit against S. B. & C. as
Effect of oyer of specialty pleaded,
in curing defect in the plea. See
Escape No. 2, and Vanmeter & al. v.
Giles governor,
347, 8
That no title to pardon is acquired
by a particeps criminis testifying
for the commonwealth on the
trial of his associate. See Ac-
complice, and Commonwealth v. Dab-
ney,
754
Construction of devise for benefit
of testator's daughter and her
children. See Will No. 7, and
Stinson ex'or &c. v. Day & Wife,
PARTICEPS CRIMINIS.
See Accomplice, and Commonwealth v.
Dabney,
754
PARTIES TO SUITS.
1. When husband is not a necessary
party to suit by wife. See Hus-
band and Wife, No. 1, and Spencer
v. Ford,
684, 5
2. Parties to suit by surviving vendee
of land to recover for deficiency.
See Vendor and Vendee No. 13, and
Crawford & al. M'Daniel, 474
3. What objection for misjoinder of
plaintiff's in bill contesting valid-
partners under the firm of S. &
Co. for goods sold, the question
being whether B. and C. were
partners of S. by whom the goods
were purchased, and B. and C.
appearing to have had a store-
house in another town, a witness
was asked whether he saw boxes
of goods marked S. & Co. at the
storehouse of B. and C. The de-
fendants objected to the question,
but the Circuit Court permitted
it to be answered, and the defen-
dants excepted. HELD, the evi-
dence had a connexion, though
very slight, with the matter in
controversy, and though it might
have been of very little weight,
it was not error to permit it to go
to the jury as a link in the chain
of circumstances. Chapman &c.
v. Wilson & Co.
2. A second bill of exceptions stated
that the defendants asked a wit-
ness, whether he was present at a
settlement made between S. B.
and C. of their accounts relative
to their mercantile transactions,
after goods had been furnished
the first by the two last? whether
he knew for what certain bonds
then executed by S. to B. and C.
were given; and whether 20 per
cent, on the amount stated to be
due was not included in said
bonds? The plaintiffs objected
to the question, on the ground
that the acts and declarations of
the defendants could not be given
in evidence for them, and the
court sustained the objection.
HELD, the evidence was properly
rejected; the bill of exceptions
not showing the time of the trans-
action between the defendants,
nor suggesting any connexion be-
tween the fact which the evidence
was offered to prove and the mat-
ter in controversy, nor stating any
thing from which such connection
could be inferred. S. C., 284, 5
3. A third bill of exceptions stated,
that the plaintiffs asked a witness
if he had heard S. say what re-
presentations he had made to the
plaintiffs at the time he purchased
the goods from them, as to the
existence of a partnership be-
tween himself and the other de-
fendants. HELD, the evidence was
properly admissible to prove that
the plaintiffs intended to sell to, III.
and S. intended to purchase for, a
partnership, but was no proof
against B. and C. that they were
the partners. That evidence, how-
ever, was not regularly admissible
even for this limited purpose, un-
til the plaintiffs had offered evi-
dence tending to shew that there
was a partnership between S., B.
and C. which authorized S. to pur
chase on the credit of the three.
S. C.,
284
II. What does not constitute partnership.
4. A fourth bill of exceptions stated,
that the court was asked by the
defendants to give the jury the
following instructions: 1. If the
jury shall believe from the evi-
dence, that in June, 1832, S.
bought of B. and C. $1,000 worth
of goods to commence merchan-
dizing with on Brush creek, and
that S. was to pay B. and C. for
said goods 20 per cent. upon the
cost thereof, or a portion of the
profits of the same, to be left to
the election of B. and C., and
that in September succeeding the
purchase, and before all the $1,000
worth of goods had been received
by S., B. and C. did elect to take
the 20 per cent., and that when the
goods were sold and delivered,
they were charged by B. and C.
to S., and the business upon Brush
creek conducted, not only to the
time of the election, but after-
wards, in the name of S., then the
said contract is not in law, a part-
VOL. I.-53
nership. 2. If the jury shall be-
lieve from the evidence, that the
election by B. and C., under the
contract with S. of June, 1832,
was made in September thereafter
and was to take the 20 per cent.,
and that the same was previous to
the purchase of goods by S. of
the plaintiffs, and that the plain-
tiffs at the time of giving the
credit to S. did not know of the
said contract made in June, 1832,
then they ought to find for the de-
fendants. HELD, the instructions
so asked correctly expound the
law of the case stated therein,
and the Circuit Court erred in re-
fusing to give them. S. C., 285
Limited partnership, and notice of dis-
The fourth bill of exceptions further
shewed that the Circuit Court, in-
stead of the instructions so asked,
gave the following: "If the jury
shall believe from the evidence,
that B. and C. entered into a con-
tract with S. by which they
agreed to furnish him with 1,000
dollars' worth of goods for the
purpose of merchandizing on
Brush creek, for which, by said
contract, they were entitled to
demand from S. either an advance
of 20 per cent., or to take a portion
of the profits arising from the sale
thereof, and that the said goods
or a portion thereof were furnish-
ed to S. who traded thereon pre-
vious to the said election being
made, it constituted B. and C.
partners of S. until such period
as they have made their said elec-
tion and given notice thereof to
the world, and responsible for his
contracts in relation to said busi-
ness." HELD, the instruction so
given was wrong in this, that
though the case stated might have
created a temporary partnership
until election, it was limited to the
sale of the goods furnished, and
to the profits thereof, and did not
extend to purchases and sales of
other goods, and the dissolution
of such partnership was effectual
in respect to all who may have
had actual notice, though such no-
tice may not have been given to
the world, or even publicly. S. C.
IV. Limitation of suit by one partner against
another for account.
6. An action of account by one partner
against his copartner, for a settle-
ment of the partnership accounts,
must be commenced within five
years next after the cause of ac-
tion, and unless so commenced,
will be barred by the statute of
limitations, 1 R. C. 1819, ch. 128,
4, p. 488, for such accounts do
not concern the trade of merchan-
dise between merchant and mer-
chant, and therefore are not em-
braced by the exception to the
statute. Accord, Patterson v. Brown,
6 Monroe 10. Coalter v. Coalter,
1. Land which had been patented in
1755, being adjudged in 1774, upon
petition to the General Court, to
be forfeited and revested in the
crown, was, in 1797, granted anew
by patent to the holder of a land
office treasury warrant. HELD by
the Court of Appeals (following 3. Statute of limitations must be taken
advantage of by plea, not by de-
murrer. See Limitation of Suits
No. 4, and Herrington v. Harkins's
adm'rs,
624
4. What is no waiver of exception to
admissior of plea. See Waiver
No. 1, and Campbell's adm'x v. Mont-
gomery,
413
5. The decision in White v. Toneray, 9
Leigh 347, that where pleas are
rejected an Appellate Court will
take it to have been rightly done
4. How costs of such accounts are to
be borne. See Specific execution
No. 1, and S. C.,
13
5. Recovery of costs against feme covert
and her next friend. See Feme
covert No. 2, and Spencer v. Ford,
685
6. Decree for costs where bill is dis-
missed as to one defendant and
sustained as to another. See Costs
No. 1, and S. C.,
685
7. What decree against party injoining
judgment is irregular. See In-
Junction No. 6, and Medley v. Pan-
nill's adm'rs,
67
8. When Appellate Court will not no-
tice dissolution of corporation ap-
pellant. See Corporation No. 2,
and Bank of Alexandria v. Patton
&c.,
528
9. Amendment of decree in Appellate
Court, and affirmance thereupon.
See Appellate jurisdiction No. 12,
and Blessing's admr's v. Beatty, 304
10. Decree for costs in Appellate Court.
See Costs No. 7, 8, and
Ashby v. Smith & wife,
Breckenridge v. Auld §c.,
Construction of power of attorney.
Under a power of attorney, autho-
rizing the attorney to act in every III.
species of business wherein the
principal may be concerned or in-
terested in the United States,
HELD, notwithstanding the broad
terms of the power, the attorney
is not authorized to pledge the
property of his principal, to se-
cure the individual debt of the
attorney. Hewes v. Doddridge &c.,
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cipal and seven sureties, to enable
the principal to borrow money
from a bank, and the principal
upon coming to town, finding that
the rules of the bank require a
town surety, application is made
by him to a citizen to become
such surety. This citizen having
adopted a rule not to put his name
on bank paper for any person, but
being willing to accommodate the
principal, applies to a friend to be-
come bound on the paper, with an
assurance that if the principal
does not pay it off when it be-
comes due, he will pay it off for
him. Under this assurance, that
friend puts his name on the paper
as a co-obligor with the other
sureties, without their knowledge.
And thereupon the paper is dis-
counted by the bank. The prin-
cipal makes default when the bill
becomes due, and soon afterwards
the citizen pays it off. HELD by
two judges (Brooke and Stanard),
that the citizen is to be considered
one of the eight sureties, having
become such in the name of his
friend, and that he is entitled to
contribution from all except that
friend dissentiente, Cabell, P. Stout
v. Vause and others,
179
What suit pending against absent
surety does not affect purchaser of his
land.
3. The facts being as above stated, a
suit in equity was brought by the
nominal surety against the co-
sureties, one of whom was an ab-
sent defendant owning land in the
commonwealth. The suit was re-
sisted on the ground that no pay-
ment had been made by the
plaintiff. Subsequently, by an
amendment of the bill, the surety
who paid was united in the suit
as a co-plaintiff. In the interval
between the commencement of
the suit and the amendment of the
bill, the absent defendant returned
to the commonwealth, and con-
veyed the land to a purchaser for
valuable consideration. HELD, no
lien is created upon the land in the
hands of the purchaser by these
proceedings; not by the proceed-
ings in the name of the nominal
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