1880. July Term.

Wytheville.

TERRY V. RAGSDALE.

July 23.

1. A check upon a bank implies that it was given in payment of a debt due by the drawer to the party in whose favor it is drawn, or for money loaned by the latter to the former at the time of the execution of said check; and though such implication may be repelled by evidence that the check was not so given, but was in fact given for a loan by the drawer to the payee, such evidence being in conflict with the apparent purport of the transaction, ought to be very strong to repel the said implication, and to establish the contrary fact.

2. In an action against a surviving partner upon a transaction in which the deceased partner was the acting party, the plaintiff introduces the defendant as a witness. The defendant so introduced becomes a competent witness in the cause; but this does not render the plaintiff a competent witness.

3. There is a verdict in favor of the defendant in a cause, which, upon motion of the plaintiff, is set aside by the court; and upon a second trial there is a verdict and judgment for the defendant. Upon writ of error by the plaintiff, if it was error in the court below to set aside the first verdict and grant a new trial, the appellate court will affirm the judgment, without enquiring into the proceedings on the second trial.

This case was heard at Richmond, but was decided at Wytheville. It was an action of assumpsit in the circuit court of Pittsylvania county, brought by Joseph M. Terry against Charles Ragsdale, survivor of himself and Daniel C. Ragsdale, deceased, as late partners under the name and style of D. C. & Charles Ragsdale. There was a verdict for the defendant; which, on the

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July Term.

motion of the plaintiff, was set aside; and on a second 1880. trial there was a verdict and judgment for the defendAnd thereupon Terry applied to this court for a writ of error and supersedeas; which was awarded. Terry The case is fully stated by Judge Moncure in his opinion. Ragsdale.

James M. Whittle and Ould & Carrington, for the appellant.

William M. Tredway, Jr., for the appellee.

MONCURE, P., delivered the opinion of the court.

This was an action of assumpsit, brought by the plaintiff in error, Joseph M. Terry, in February, 1872, against the defendant in error, Charles Ragsdale, survivor of himself and Daniel C. Ragsdale, deceased, late partners under the firm and style of D. C. & Charles Ragsdale. In the declaration it is stated, that in May, 1863, the said firm was indebted to the plaintiff in the sum of $10,000, for money lent, paid, had and received, and found due on an account stated; and being so indebted, promised to pay the said debt on demand; yet the said firm, although often requested, did not, nor did either of them, pay the said debt or any part thereof to the plaintiff during the lifetime of the said Daniel C. Ragsdale, nor has the said surviving partner, Charles Ragsdale, paid the same or any part thereof to the said plaintiff since the death of the said Daniel C. Ragsdale, although often requested so to do. The defendant plead non assumpsit to the action; to which plea the plaintiff replied generally. And the general issue being thus joined in the case, the same was tried by a jury, which found a verdict for the defendant on the 7th day of November, 1872. Whereupon the plaintiff moved the court to set aside the said

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July Term.

1880. verdict and grant him a new trial; which motion the court, after taking time to consider the same, sustained. On the trial of the cause the plaintiff tendered to the Terry court two bills of exceptions to opinions given by the Ragsdale, court, which were signed and sealed and made part of the record.

V.

On the second trial of the cause, which occurred on the 11th and 12th days of November, 1873, the jury again found a verdict for the defendant. Whereupon the plaintiff moved the court to set aside the said verdict and grant him a new trial; which motion the court, after taking time to consider the same, overruled and rendered judgment for the defendant, to-wit: on the 14th day of November, 1873. On the said second trial of the cause the plaintiff tendered to the court four bills of exceptions to opinions given by the court, which were signed, sealed and made a part of the record.

The first matter for enquiry in this case is: Whether the circuit court erred in granting a new trial, and in not rendering judgment according to the first verdict?

Two bills of exceptions, as we have seen, were taken to the action of the court in the course of the first trial. Let us now examine, consider and decide upon these two bills, in their order.

In the first it is stated, that the plaintiff, having offered testimony tending to prove a bank check and an endorsement thereon in the words and figures, viz: "PITTSYLVANIA C. H., May 25th, 1863.

"$10,000.

"Bank of Pittsylvania, pay to the order of D. C. & Charles Ragsdale ten thousand dollars.

"Jos. M. TERRY.

"Endorsed:

"D. C. & CHAS. RAGSDALE."

July

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Terry

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And having offered evidence tending to show that 1880. Daniel C. Ragsdale, who purports to have made the said endorsement, drew the amount of the said check out of the Bank of Pittsylvania; that no testimony was offered by the defendant to prove that, at the time Ragsdale. of drawing said check, the plaintiff owed said Ragsdale anything; that in the month of May, 1864, a settlement was made between the firm of Ragsdale & Co., composed of said D. C. and C. Ragsdale, in which Charles Ragsdale fell in debt to the plaintiff a considerable amount, and the plaintiff fell in debt to Ragsdale & Co. a small amount, which was deducted from the amount due from Charles Ragsdale to the plaintiff, the plaintiff moved the court to instruct the jury that if they believed that the facts aforesaid are proved, they ought to infer that said check was evidence that the amount thereof was loaned by plaintiff to said D. C. & C. Ragsdale, and not of the payment of any debt due them. But the court refused to give said instruction: to which ruling said exception was taken.

The court is of opinion that the circuit court did not err in refusing to give the said instruction. The check is prima facie evidence that the drawer, at the time it was drawn, was indebted to the payees in the amount of the check on an indebtedness previously existing, or created at the time the check was drawn. There is no plainer, nor better settled principle of law than that. There is nothing stated in the said first bill of exceptions which tends to repel that presumption. It follows therefore that the court, properly refused to give the said instruction.

In the second of the said two bills, it is stated that, after the jury had rendered their verdict in this cause, the plaintiff moved the court to set aside the same and grant him a new trial, for the following reasons, viz:

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1880. 1st. That the court had not allowed the plaintiff July Term. Terry to testify in his own behalf, and had thereby deprived him of his most important testimony, the Terry plaintiff's counsel stating that, feeling confident that Ragsdale. his own evidence should legally be admitted, he did not prepare himself with the evidence which he could have procured, to show that the $10,000 check was a loan by the plaintiff to the defendant, and not a payment of a debt, and was thus taken by surprise.

2d. That Charles Ragsdale was admitted as a witness to testify against D. C. Ragsdale, and was called by the counsel of said Terry and not objected to by defendant, while the plaintiff was excluded as a witness.

3d. That the court refused to allow the plaintiff to file interrogatories to Charles Ragsdale after the jury had been sworn and before the introduction of C. Ragsdale, although the deposition of said Ragsdale was accessible, from which he could refresh his memory on the points mentioned in said interrogatories.

4th. Because the verdict was contrary to the evidence. And the court having sustained the plaintiff's motion for a new trial, certified that the following are all the facts proved before the jury at the trial, viz: A check for $10,000, dated May 25th, 1863, signed by the plaintiff and endorsed by D. C. and Charles Ragsdale, in the words and figures following, viz: (see the same herein before inserted); that D. C. Ragsdale drew the money on said check; that D. C. Ragsdale managed the financial part of the firm business of Rags& Co. exclusively; that said firm consisted of D. C. and Charles Ragsdale; that D. C. Ragsdale frequently borrowed money for the firm without consulting Charles Ragsdale; that Charles Ragsdale was frequently ignorant of the fact that D. C. Ragsdale had contracted a loan for the firm; that Charles Ragsdale never heard of D. C. Ragsdale borrowing $10,000 from