
    Shelton v. Cocke, Crawford, & Co.
    
    Monday, March 23d, 1811.
    I.. Instruction—Abstract Question. —Apoint on which a party requested the Court to instruct the jury, is-not to be regarded as a mere abstract question, concerning which the Court was not bound to give an opinion, if it appear from the pleadings, that such point might have applied to the case-before the jury, and the contrary be not stated. See'Pickett v. Morris, 2 Wash. 255, 272.
    2. Partnership—Acknowledgment of Debt after Dissolution— Effect. —Although the acknowledgment of a debt by one or more of the partners of a mercantile firm, after the dissolution thereof, is competent to do away the bar of the Act of Limitations, in an action brought against the firm: the existence of the debt being first proved by other testimony or admitted by the pleadings; yet such acknowledgment is not proper evidence of the existence-of the debt, so as to charge the other partners.
    At the trial of an action of assumpsit, upon an insimul computassent, by Cocke, Crawford, & Co. against Earner, Skelton, and Cocke, merchants and partners; the plea being the general issue; the defendants, by their counsel, moved the Court to instruct the jury, that “after *the dissolution of a mercantile firm, and that dissolution properlj" published, the acknowledgment by a partner, or partners, of a debt due from the firm prior to the dissolution, (the person to whom such acknowledgment is made knowing of such dissolution,) is not such evidence of the existence of a debt, as will charge a partner, not present at such acknowledgment, nor consenting thereto, in an action against the firm;” which instruction the Court refused to give, “being of opinion that such acknowledgment was evidence in such action;” to which opinion a bill of exceptions was filed. Verdict audi judgment for the plaintiffs for 2821. 17s. 7d. damages and costs: to which judgment a writ of supersedeas was awarded by a. judge of this Court.
    Wickham, for the plaintiff in error.
    I understand it settled, that the acknowledgment of a person, formerly a partner with another, will not bind that other person, being no longer a partner; if it relate to the existence of the debt. The case of Whitcomb v. Whiting,  which is the leading authority on this subject, goes only to prove, that where a debt is first established by other testimony, such acknowledgment will prevent the operation of the Act of limitations. And a similar point is decided in Jackson v. Fairbank.  But in Abel and another v. Sutton,  it was ruled by Eord Kenyon that, after the dissolution of the partnership, one of the persons who composed the firm cannot put the partnership name on any negotiable security; even though such existed prior to the dissolution, or was for the purpose of liquidating the partnership debts; and notwithstanding such partner may have had an authority given him to settle the partnership affairs. The case of Bland v. Hasselrig is, also, in opposition to that of Whitcomb v. Whiting.
    In Evans v. Beattie,  it was ruled by Bord Éllenborough, that, on a guarantee to pay for goods sold and delivered to a third person, vrhat such third person has said, ^respecting the goods sold to him, is not evidence to charge the person giving the guarantee; but the delivery of them must be proved; because “there might be collusion between such third person and the plaintiffs.” The same reason strongly applies in this case. So, in Helyear v. Hawke, where a principal emplos'ed an agent, or servant, to sell for him, what such agent said as a warranty or representation, at the time of the sale, respecting the thing sold, was determined to be evidence against the principal; but not what he had said at another time; and Peto v. Hague is to the same effect. In Gray v. Palmer & Hodgson,  the admission of one of the defendants, that he signed a note, (though such admission was made by his plea,) was held not to bind the co-defendants. A confession of judgment by one would not bind the others. A for-tiori, then, a confession in pays will not. If one partner cannot, after the dissolution of the partnership, bind the others by his act, he cannot bind him by his evidence, so as to establish the existence of a debt, which is denied.
    Wirt, contra.
    The acknowledgment of a partner, after dissolution of the partnership, that a debt was contracted by the firm prior to its dissolution, will bind the other partners; because his acknowledgment binds himself at the same time; and therefore his own interest would prevent his making such an acknowledgment if it were not true. The cases cited by Mr. Wickham do not apply. Copper, the acknowledging person in S Esp. 26, had no joint interest with the rest, and did not bind his own interest. The same observation applies to Helyear v. Hawke, ibid. 72, and Peto v. Hague, ibid. 134. The case in 1 Esp. Cases, 135, is not a case of partnership, but of a sham plea by a co-defendant, by which plea the others were not bound, as they had pleaded severally. Abel and another v. Sutton, 3 Esp. 108, contains a principle which we cheerfully admit; but it is the case of the creation of a new debt by the partner, not of the acknowledgment of '*a pre-existing debt. I grant, that after dissolution, none of the partners can create a new debt against the firm. If they could it would abrogate the dissolution. Bland v. Haselrig has, unquestionably been overruled by Whitcomb v. Whiting, and subsequent authorities.
    Notwithstanding the dissolution of a partnership, there remains a privity among the partners as to certain purposes. It is not total, retrospectively, as well as prospectively. They are still existing partners as to past transactions, to recover and pay existing debts, &c. ; though not to create new ones. In Whitcomb v. Whiting, the acknowledgment of the partner as effectually bound the partnership by reviving a debt, which by the act of limitations was defunct, as it could have been done by proving the existence of the debt in the first instance. In Jackson v. Eairbank, 2 H. Bl. 340, the partnership had been dissolved by an act of bankruptcy of one of the partners ; yet an admission by the assignees of the bankrupt was received as sufficient evidence to bind the other partner, by taking the case out of the act of limitations. In Grant v. Jackson,  the acknowledgment of a partner, made after he had become a bankrupt, (of course, after the partnership had been dissolved,) but before he had obtained his certificate, was received as evidence against the other partners, in consideration of the interest remaining in him, small as it was. It follows then, a fortiori, that, where all are able to pay, one who binds himself at the same time, may bind the rest.  Brockenbrough v. Hackley, in this Court is also a strong case. It is true, that there the only plea was the act of limitations; but that makes no difference; because the only evidence was the written acknowledgment, at the foot of the account, by one of the partners, long after the dissolution of the partnership.
    Wickham, in reply.
    The position, that participation of interest is sufficient to enable one to bind himself and others, goes too far: it would prove that a man might, *in all cases, bind other persons, by confessing a judgment against himself and them; or that he could bind them by his note or bond, without their signatures. What cannot be done, directly, by giving a note or bond, or bond, or confessing a judgment, cannot be done, indirectly, by acknowledging the existence of a debt. Suppose the debt was due from himself in his individual capacity, would he not be interested to fix it on the partnership instead of himself alone? The argument that his acknowledgment is only evidence of a pre-existing debt, begs the question; for the question is, whether the debt existed or not? It does not follow, because such an acknowledgment is sufficient to take a case out of the act of limitations, that it ought to be sufficient to prove the existence of the debt in the absence of other, testimony. The power to create a /debt is very different from that of reviving a debt; for the act of limitations is governed by an equity; and after legal proof that the debt originally existed, any acknowledgment, however slight, is sufficient to prevent its recovery from being barred by the act.  The case of Jackson v. Fairbank, H. Bl. 340, is clearly in my favour. It proves that Mr. Wirt’s rule is not the true one. There is no privity between the assignees of a bankrupt, and the persons who were his partners in trade before his act of bankruptcy. They had no interest in the action against those partners, and might have been sworn as witnesses. They could not, by their acknowledgment, create a debt, even against the bankrupt himself; much less against his partners. It follows, then, that their acknowledgment was admitted only to revive a debt barred by the act of limitations. The case, therefore, plainly shows the distinction between such recognition of a preexisting debt as will establish it without other proof, and such as will be sufficient to take it out of the act.
    Tex Mercatoria Americana is a book of no authority in this Court. The case of Grant v. Jackson,  is very vaguely reported ; for it does not appear to what point *the evidence was introduced; and the authority of Tord Kenyon in that case is opposed to his own authority in Abel v. Sutton, 3 Esp. Cas. 108. In Thwaites v. Richardson,  his lordship even doubted whether the admission of an existing partner could bind the other.
    
    The principle decided in Brockenbrough v. Hackley, as reported in Mr. Call’s MS. is very different from what might be inferred from the record. Judge Byons, in delivering the opinion of the Court, said, “the evidence of a declaration made by the partner, was admissible to take the case out of the act of limitations, because the plea had admitted the original existence of the debt.” The conclusion drawn by Mr. Call is, that “the plea of the act of limitations is an admission, that a proper as-sumpsit was once made.” That case, therefore, so far as it is an authority, is directly in my favour. And so is the case of Hackley, survivor, &c. v. Patrick and Hastie, 3 Johnson’s Hew York Reports, p. 536.
    
      
      For sequel of principal case, see Shelton v. Cocke, 6 Munf. 580.
    
    
      
      §Instructions—When Not Abstract.—An instruction is not considered as abstract where the pleadings show that it might apply to the case. Johnston v. Moorman, 80 Va. 143, citing the principal case as. authority. See further, monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
      Same—Presumption in Appellate Court.—It must be-presumed that the court below acted correctly in refusing instructions to the jury uni ess it appear by facts or testimony incorporated in the bill of exceptions that the instructions were relevent or irrelevant to the cause. Shepherd v. McQuilkln, 2 W. Va. 100, citing the principal case, and Eitzhugh v. Fitz-hugh, 11 Gratt. 308.
      See further, foot-note to Eitzhugh v. Eitzhugh, 11 Gratt. 300; monographic note on "Bills of Exception’" appended to Stoneman v. Com., 25 Gratt. 887; mono-graphic note on "Instructions” appended to Womack, v. Circle, 29 Gratt. 192.
    
    
      
       Partnership—Admissions of Partner of the Dissolution—Effect.—The admissions of one partner after dissolution of the partnership, are no evidence-against the other partners whether the partners be defendants or plaintiffs. Munford v. Overseers of Poor, 2 Rand. 319, citing principal case, and Rootes v. wellford. 4 Munf. 215. To the same point the principal caséis cited in Dade v. Madison, 5 Leigh 405; Henrico Justices v. Turner, G Leigh 127; Bispham v. Patterson, 3 Fed. Cas. 456. See further, mono-graphic note on "Partnership” appended to Scott v. Trent, 1 Wash. 77.
    
    
      
       2 Dong-las, 651.
    
    
      
       2H. HI. 840.
    
    
      
       3 lisp. Cases, 108.
    
    
      
       2 Vent. 151.
    
    
      
       5 f-tsp. Cases. 26.
    
    
      
       Esp. Ca. 72.
    
    
      
       Tbld. 184.
    
    
      
       1 Esp. Cases, 135.
    
    
      
      Watson’s Law of Partnership, 282-3.
    
    
      
       Peake’s Oases, N. P. 203.
    
    
      
       Lex Mercatoria Americana, p. 650.
    
    
      
       September Term, 1806 Order Book, No. 5, p. 273.
    
    
      
       4 Bac. 483; 2 T. R. 762, Loyd v. Maund.
    
    
      
       Peake’s Cases, 203.
    
    
      
       Peake’s Cases, 16.
    
    
      
      Note. In that case, Lord Kenyon said he thought, that though in cases where an action is brought against several partners, the admission of any one might he given in evidence to prove all liable; yet, when one only was sued, the admission of the other could not he given in evidence to charge him.—Note in Original Edition.
    
   Saturday, March 28th,

JUDGE ROANE

pronounced the following opinion of this Court.

“It appearing that the question propounded to the Court below, for its opinion and instruction, was a mere abstract question, on which the said Court was not bound to give an opinion; and it not appearing that the instruction actually given by the said Court produced, or could have produced, any injury to the appellant; this Court, without, considering the rectitude of that instruction, (for the reason aforesaid,) affirms the judgment of the Superior Court.

*Wednesday, April 8th, for reasons appearing to the Court, it was ordered that the judgment entered in this cause on the 28th day of March last, be set aside.

Tuesday, February 16th, 1813, JUDGE ROANE delivered the following opinion of the Court.

“The Court is of opinion that, although the acknowledgment of a debt by one or more of the partners of a mercantile firm, after the dissolution thereof, is competent to do away the bar of the act of limitations, in an action brought against the firm; the existence of the debt being first proved by other testimony, or admitted by the pleadings; yet that such acknowledgment is not proper evidence of the existence of the debt, so as to charge the other partners; and that the said judgment is erroneous. It is therefore reversed with costs: and it is ordered that the jury’s verdict be set aside, and the cause remanded to the Superior Court for a new trial to be had therein; on which trial, if requested, an instruction shall be given conforming to the principle above declared.” 
      
      Nole. See Buster’s Executor v. Wallace, 1H. & M. 82, pi. 1. But the instruction requested in this case, did not appear to have been npon a mere abstract question; for the Court below refuses to give the instruction, not on the ground that the question propounded .was merely abstract, or did not apply to the case, but "because that Court was of opinion, that such acknowledgment was evidence in such action.’’—Note in Original Edition.
     