
    
      Reuben Drake vs. Ramey, Rhodes & Co.
    
    To prove, prima facie, the loss of a deed, it is sufficient to shew a search in the place where it was most likely to be found.
    Where a note was left with an attorney for collection, to prove its loss after his death, held that it was sufficient to shew a search in his office among his official papers.
    Action on a single bill alleged to be lost. After the plaintiff had proved his case and the defendant was in his defence, the bill was found by a third person and brought into court. Held that the plaintiff was entitled to recover.
    The statements of a bill in Equity, though evidence against the plaintiff, are very feeble evidence so far as they may be taken as the suggestions of counsel; and, it seems that it makes no difference in this respect, that the plaintiff, for the purpose of using the answer, gave the bill in evidence himself.
    Three persons entered into partnership, and, in their articles, stipulated to pay A. B. a certain share of the profits in satisfaction of a debt due him by one of the partners. A B was no party to the articles. Held, in an action by A B against the firm, that this stipulation did not make him a partner.
    
      Before O’Neall, J. at Edgefield, Fall Term, 1845.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was an action of debt, on a single bill alleged to be lost. The proof was that the late General Wimbish had the bill in his possession- — that he was dead- — that his papers had been examined, and that it could not be found. He had no administrator or executor. The Ordinary had sold his estate as derelict. The execution of the single bill was admitted by the defendants in an answer to a bill in equity, and the copy offered in evidence was also in the same answer admitted to be a true copy. I thought the proof of loss was •prima facie enough, and admitted the copy in evidence.
    The defence was then gone into, and the only thing necessary to be noted is. whether the plaintiff was a member of the firm of Ramey, Rhodes & Co. The bill in equity, filed by General Wimbish, in the name of Reuben Drake, for the collection of this same single bill, stated that he was a partner, and it was urged by the plaintiff’s counsel, that was the mere statement of counsel, and was a mistake in fact, and ought not to prejudice the plaintiff. I so thought. The defendant then gave in evidence the articles of partnership between the three persons composing the firm of Ramey, Rhodes Co. (which is appended to this report and is a part of it) in which there was a stipulation that inasmuch as Drake, the plaintiff, had sold out his interest to Rhodes, in the business, (the Pottery) previously carried on by himself and the other two members of the firm, he was to receive one-half of one-third of the profits until a given time, in part of and on account of the purchase money of his share.
    
      I did not think this stipulation made Drake a partner.
    And the jury foufid for the plaihtiff the balance due on the single bill and interest, after deducting a payment credited on it, and a small discount.”
    The defendants appealed, and now moved for a non-suit, or new trial, on the following grounds.
    1. That the plaintiff did not furnish sufficient evidence of the loss of the original single bill, to admit proof of its contents.
    2. That the proof was full and satisfactory from the admissions in the bill in equity, by plaintiff against the defendants, offered in evidence by the plaintiff, and by the articles of agreement offered by defendants, that the plaintiff was a partner in the firm of Ramey, Rhodes & Co. at the time the single bill was given, and, therefore, that the plaintiff could not maintain his action in the court of law.
    Griffin, for the motion,
    cited 1 Ch. PI. 350; Ch. on Bills, 402; 2 Bail. 428; 6 T. R. 236 ; 1 Stark. Ev. 365, 282 ; 2 N. & McC. 427; 2 McM. 107; Watson on Part. 9, 10.
    
      Wardlaio, contra,
    cited 1 Smith Lead. Cas. 491.
    
      
       The following is a copy of the articles of agreement.
      South Carolina, )
      Edgefield District. )
      
      This agreement witnesseth that Nathaniel Ramey, Collin Rh.odes and R. W. Mathews, have this day connected themselves as co-partners in the stone ware manufacturing business, at Pottersville, under the name of Ramey, Rhodes & Co. We are jointly and equally interested in all the mules, wagons, gear and blacksmith and other tools in our possession, for the use and purpose of making stone ware, bricks, &c.
      It is further understood, inasmuch as R. Drake was drawing one-third of the profits of the present year’s business, and it was agreed by R. W. Mathews and R. Drake, that R. Drake was to draw the one-third of six thousand four hundred and eighty dollars, out of the present year’s business, as soon as the same may be collected in cash — and the said R. W. Mathews is only to draw half of his third for the ensuing year, on account of a bargain between him and R. Drake in the hire of some negroes for the year 1837, to turn ware in the pottery, and R. Drake shall have the privilege of drawing the one-half of the one-third of the profits realized in the business of 1837, in which calculation no loss is to he counted in the decrease of mules — and the amount of money paid out for mules from this date will be counted as cash in hand in the settlement with R. Drake, for the amount he was entitled to draw as above stated. It is also understood, that R. W. Mathews is to pay for the services of W. W. Gibbes for such time that R. Drake was to pay:
    
   Curia, per

O’Neall, J.

In this case the single bill was not the property of Gen. Wimbish; it was in his hands merely as attorney; and when the Ordinary took possession of his estate, as derelict, it did not necessarily follow that it ought to be in his possession. Its place of deposite was his office, among other papers confided to him as attorney; these had been diligently examined by Mr. Wardlaw, as he proved, and it could not be found. The existence and contents of the paper were admitted by the defendants’ own answer; there was, therefore, no motive to withhold the paper. A search, in the place where it was most likely to be found, is all which the law demands ; 1 Greenleaf Ev. §558. In the section to which I have referred, Greenleaf says, after such a search, the plaintiff’s own affidavit of loss is admissible; but that has never been allowed in this State; Davis & Tarlton vs, Benbow, 2 Bail. 428. A search being all the proof of loss which could be made, the secondary evidence was properly admitted. ** *<■ • * *

After the case had been made out, and the defendants were in their defence, Mr. Tomkins, who had bought a bureau belonging to Gen. Wimbish, at the Ordinary’s sale, thinking it was possible the note might be in it, examined, found and brought the bill into court, and delivered it to plaintiff’s attorney. This, it seemed to me, ended all the difficulties of the case. -For there was no longer any possible danger of fraud, or loss to the defendants. But it has been urged here, the plaintiff could not recover, after the bill was produced, inasmuch as he had declared upon it, as lost. This might have been true, if the bill had been, in the first place, produced. But the party had complied with the rule ; had prima facie established the loss — had shewn the existence and contents of the bill; and was entitled to recover against the defendants, before it was produced. Its production, (if it had been given in evidence by either party, which, by-the-by, was not done) would not have destroyed the plaintiff’s right to recover— it would have fortified it. For the technical objection under the excuse for non proferí, could not arise, on the defendants’ proof. After the plaintiff had shewn, in the beginning, a case of loss, and that he had not the deed when he filed his declaration, or when he closed his case to the jury, there was no ground of objection, that his proof did not correspond with his allegation. The only questions which then remained, were upon the merits. The first of these was, is the bill the deed of the defendants ? The production of the original paper could not, and did not, shew that it was not their deed.

As to the second ground, it is neeessary to consider it in two parts.

1st. Was the plaintiff concluded by the statement in the bill in equity, that the plaintiff was a partner of the de-féndants? Greenleaf (vol. 1, §212) states the rule, that a bill in equity is not conclusive against the party complainant ; it “ is evidence,” he says, “ against the plaintiff of the admissions it contains, though very feeble evidence, so far as it may be taken as the suggestions of counsel.” It is plain, on looking into this bill, that the allegation of partnership was the mere conclusion of the counsel (Gen. Wimbish) who drew the bill, from the articles exhibited; and it is equally plain that he was mistaken. But the learned counsel bringing up the case, conceded the general rule, and urged that this was an exception, inasmuch as the plaintiff gave the bill in evidence. That; I do not think7 would alter the case. Still, however, it is enough to say, that the plaintiff really only gave the bill in evidence, as part of the record, to enable him to read the answer. It was the defendants who put their fingers on the allegation in the bill, and claimed the benefit of it.

2d. Is the plaintiff a partner of the defendants, and therefore liable to pay this bill ? It is plain he is not. The note was given for the purchase of property from him. The defendants made the bill, and according to their own articles, (to which the plaintiff was not a party,) constituted the firm of Ramey, Rhodes & Co. The stipulation in it, by which he was to have a certain part of the profits of the business, was to insure the payment to him of the sum which was to be paid to him for his interest in the Pottery which had been purceased by R. Mathews, and for the hire of some slaves to turn ware in the pottery in 1837. This did not make him a partner. He did not participate in profit or loss, as such. He was to receive a part of Mathews’ share of the profits; but not on account of any thing he had to do with the business. It was so much set apart by the co-partners, as a fund out of which Mathews’ debt was to be paid.

The motion for a nonsuit, or new trial, is dismissed.

Richardson, Evans, Wardlaw and Frost, JJ. concurred.  