
    *Barnett & Woolfolk v. Watson & Urquhart.
    October Term, 1794.
    Assumpsit — Sterling Honey — Finding of Jury. — Indeb-itatus Assumpsit for 1711. 5s. 4d. sterling, of the value of 2281. 7s. current money of .'Virginia, for so much advanced by the plaintiffs to 3?. and S. at the request of the defendants, &c. laying the damages in current money, Verdict in current money. The jury were right in finding the value of the sterling money instead of leaving it to the court.
    Same — Against Some Hembers of Firm — Failure of Plea to Declare Other Members of Firm — Effect.— Declaration against Barnett, Woolfolk, & Co. — W. appears and pleads non assumpsit; afterwards B. against whom the suit had been entered abated, entered himself a defendant, and without filing a plea, united in defending the action. Judgment against B. and W. only. The judgment is proper against those two, as they did' not discover by a plea in abatement who were the other partners. B. by Entering himself a defendant, and going to trial, bound himself to abide by the plea of his partner.
    Same — Verdict— Sufficiency of. — Upon non assumpsit pleaded, the jury find that the defendant has not paid the debt, and assess the damages, by occasion of the non-performance of that assumpsit, to a certain sum. The verdict substantially pursues the issue.
    Depositions — Failure to Sign — Effect.—It is no objection to a deposition, that it is not signed by the-witness.
    Witness — Interest.—What degree of interest disqualifies a witness.
    This cause which was argued at the last court, and being continued to be re-argued, came on again, at the present term. It was an action on the case brought by the appellees in the County ■ Court, against Barnett, Woolfolk & Co. The declaration states, “that the defendants were indebted to the plaintiffs in the sum of ^171: 5: 4, sterling money of Great Britain, worth in Virginia currency ,£228; 7, for so much advanced by the plaintiffs to Forest and Stoddart, at the special instance and request of the said Barnett, Woolfolk & Co. and being so indebted they assumed to pay &c. The damages are laid at £500. The writ being served upon Woolfolk, he pleaded separately the general issue; and an abatement of the suit was entered as to Barnett, who was returned “no inhabitant.” An order was made for taking the deposition of Benjamin Stoddart on the part of the appellees, and at a subsequent term, and alter a jury had been sworn upon the above issue, and withdrawn, Barnett, as the record states, “came into court, and entered himself a defendant at the suit of Waison and Urquhart, and the said defendants acknowledged legal notice, as to the taking of the above deposition, and on the motion of the defendants, the suit was continued at their costs.” At another day, (it is stated) “the parties aforesaid came, as also a jury, who say upon their oaths, that the defendants have not paid the debt in the declaration mentioned, as in pleading they have alledged, and assess the plaintiff’s damages, by occasion of the non-performance of that assumption, to £294: 12, current money.” Upon this verdict, judgment was entered for the appellees. Barnett and Woolfolk filed a bill of exceptions to the opinion of the court, which admitted the deposition of Benjamin Stoddart to be read in evidence at the trial; the objection was made upon the score of incompetency. The substance of the deposition (which is spread at large upon the record) is, that Barnett, Woolfolk & Co. shipped to Forest and Stod-dart 16 hogsheads of tobacco, and drew on them for £240 sterling, in favor of the ap-pellees, who remitted the bill, and requested that it might be honoured, though the tobacco should not produce that sum, agreeing to be answerable themselves to the drawees for *the deficiency, if anjr. In consequence of this request, Forest and Stoddart paid the bill, although the tobacco netted only £68: 14: 8 sterling; that Forest and Stoddart have since demanded and received from the plaintiffs the balance due from Barnett, Woolfolk & Co. The deposition was not signed by Stoddart and was excepted to, for this reason also. The magistrates who took the deposition certified, “that in pursuance of a commission, they had examined the said Benjamin Stoddart, a witness, as well on the part of Watson and Urquhart, as on behalf of Joseph Woolfolk, in a suit depending in Orange Court, the witness being first duly sworn.” The defendants Barnett and Woolfolk moved for a new trial, which being refused, they excepted for that reason likewise, stating as the ground of it, that a material witness was absent; that the damages were excessive, being a few pounds more than the debt in the declaration mentioned, and that the court would not permit them to urge any other reasons for a new trial, except the two above stated.
    Upon an appeal to the District Court of Fredericksburg, the judgment of the County Court was affirmed; and a writ of super-sedeas to this latter judgment was awarded by one of the judges of this court.
    Warden for the appellants.
    I rely upon the following errors in the judgment of the County Court. 1st, The plaintiff in his declaration claims a sterling money debt, of the value of so much in current money, whereas the demand should have been made in sterling money only. In support of this objection, the case of Scott’s executors v. Call, (ante 115) is fully in point.
    2d, The declaration states a demand against Barnett, Woolfolk & Co. and the judgment is against Barnett and Woolfolk only, which is a fatal variance. The contract as stated is a joint one, and the judgment should have also been joinl^ that the whole might assist in bearing the burthen.
    
      3d. There is no issue as to Barnett, and yet a verdict and judgment is rendered against him. The plea of Woolfolk is several, that fie did not assume, and Barnett, who was not bound to state his defence upon this issue, might have chosen to put in a special plea : but instead of his having an opportunity to do so, a verdict was rendered upon the plea of Woolfolk alone, against Barnett as well as Woolfolk, tho’ the former was in truth no party to the suit, and probably was not, nay could not, be defended upon any special ground, which he might have chosen, distinct from that taken bjT Woolfolk.
    'x'4th, The deposition of Stoddart docs not go to prove that the appellants assumed, or that the money was paid by Watson and Urquhart, at their request.
    5th, Stoddart appears clearly to have been an interested witness. Barnett and Wool-folk considered their tobacco as having been either disposed of at an under value, or as having been sold at a higher price than that stated by Forest and Stoddart, and they would have been entitled, in case Forest and Stoddart had sued them on their bill, (and which was alone prevented by the officious interference of Watson and Urquhart) to oppose the demand by proofs of improper conduct in the sale of their tobacco. Stoddart therefore was a very improper witness, to prove the price at which the tobacco sold.
    6th, The deposition not being signed by Stoddart, it ought not to have been read, since if perjury had been committed, a prosecution could not have been instituted against the witness in consequence of this omission. 1 Morg. Ess. 124.
    Duval on the same side. For any thing which appears in the record, the bill drawn by Barnett, Woolfolk & Co. may yet be in circulation, and may at some future time rise up against the drawers, for it does not appear, that Watson and Urquhart took it up. Upon the third objection made by Mr. Warden, he cited 3 Morg. Ess. 10.
    Washington for the appellees.
    The first objection is, that the current money value of the sterling debt ought not’to have been stated, in the declaration; and in support of this, the case of Scott’s executors v. Call, is relied upon. That was an action of debt for a specific sum, where the jury failed to ascertain the value of the money, tho’ that subject was rendered by the pleadings an essential part of the matter in issue. This is an action on the case, sounding entirely in damages, and the jury have assessed those damages in current money, leaving nothing for the court to do.
    In answer to the second objection let it be premised, that contracts by partners are joint and several. If the action be no! brought ag-ainst all, those who arc sued may plead in abatement, discovering the names of the other partners, so as to prevent the plaintiff from making more than one mistake. But if they do not plead in abatement, they cannot afterwards object that all are not joined. If there be any thing in the objection now insisted upon, a recovery can never be had upon a partnership contract where some of the firm, are not named, but included under the general stile of the company, if the members *will onljr keep their own secret. For if, as in this case, the suit is brought against Barnett, Woolfolk & Co. it is objected, that a judgment cannot be obtained against Barnett and Woolfolk only ; and it is clear that it cannot be rendered against the whole if the unnamed partners be unknown, since they cannot be made parties to the suit. You cannot sue the known partners only, for then the contract must be stated to be made by them, and if this be done, then it would be variant from the real one, which would be clearly fatal. So that, if the present objection, be a good one, the plaintiff, in a case like this, would be without any remedy at all at law, whereas on the other hand, the defendants may discover who are the concealed partners by a plea in abatement, and ought to do so, if they mean to make it a joint burthen.
    There is more difficulty in the next objection, than in any which has been mentioned. To understand it, we must consider the real nature and end of pleading. A plea consists of two parts; the first is the making of defence, and the other is the extension of that defence, under all the various modifications of which the case admits. Making defence, is the denial of the plaintiff’s demand as he has stated it. 3 Blac. Com. 296. If the defendant mean not to rely upon a bare denial, but would go farther and oppose the plaintiff’s claim by something not necessarily growing out of the defence, but quite collateral thereto, he must state such other ground in the form of a plea. Thus in assumpsit, the defendant by making defence, and consequently denying the plaintiff’s demand set forth in the declaration, substantially says, that he did not assume; because the affirmation being that he did assume, the negation must he that he did not assume, which forms a compleat issue: but if the defendant would go farther, and say, for instance, that he did not assume within five years, he must plead that special matter, (because this is not necessarily implied by a mere negation,) so as to give the plaintiff notice of the real ground of defence, which is the primary and only end of pleading. In this case then, Barnett, by entering himself a defendant which is tantamount to defending the force and injury, denies the as-sumpsit charged, as much, as if he had said so, in a more regular plea. But what puts this question beyond doubt is, that his co-defendant had regularly pleaded non-assump-sit, to a joint demand, and therefore Barnett, by entering himself defendant, going to trial on the plea, and actually defending, the suit in all its si ages, as the record shews he did, made Woolfolk’s plea his own, and after a verdict against him, ought not to be permitted to set it aside, because he had neglected to put in a formal plea. The *want of a similter appears from the case of Cooper v. Spencer. 1 Str. 641 cited in 3 Morg. essays, p. 10, to have been considered as fatal, and not aided by the statute of Jeo-fails, yet after defence made, the objection is removed. 21 Vin. p. 480.
    4th, This objection, as well as that made by Mr. Duval, may be answered together, by observing that the whole evidence is not stated. This is not a demurrer to evidence, where all the testimony is spread upon the record, but it is merely an exception to the admissibility of a particular deposition. So that this court cannot say that evidence was not produced of the assumpsit, or of the request, or that thé bill was taken up by Watson and Urquhart. Besides, as to the first, the law creates the assumpsit, and as to the latter, the bill not having been protested never can charge the appellants. i
    
    Sth, Stoddart can neither gain, nor lose by the event of this cause, and this is the touchstone by which to try the interest of a witness. The claim of Rorest and Stod-dart, against Watson and Urquhart, was independent of Barnett, Woolfolk & Co.. It arose from their special undertaking, they did that without suit, which they might have been compelled to do. They could not defend themselves, by alledging an injury done by Rorest and Stoddart, to Barnett, Woolfolk & Co. nor are -they precluded by this judgment, nor by the payment made by the appellees from contesting that point with Rorest and Stoddart, who could not in such a suit avail themselves of any benefit from the evidence given in this cause. If Rorest and Stoddart has injured the appellants, it is nothing to the appellees, who only claim the money advanced for them, and to prove the amount of that advance, the receiver is a proper and often the only witness.
    6th, This objection is supported neither by authorities, nor by principle. 2 Str. 920, which is referred to, does not warrant the doctrine contended for, and the reason assigned for it, is totally unfounded. The signing of the deposition cannot be necessary, even for the purpose of furnishing evidence of the oath, since upon a prosecution for perjury, it would be requisite to prove, that the evidence stated in the deposition and signed by the witness was sworn to by him. The certificate of the magistrate would not be sufficient. The signature, if proved, (for this too must be done,) might be evidence of his having deposed what is there written; but, that he deposed it upon oath, would still remain tobe proved. So that after all, other evidence must be resorted to, in order to sustain the prosecution. If the false oath were not committed *to writing, yet upon proving it, the witness might suffer for perjury, and surely it is not less perjury if it be committed to writing, because it is not signed.
    Campbell in reply.
    The objections upon which I rely, are 1st, That no plea is put in by Barnett, and yet judgment is entered against him. But it is contended that there is a plea. I ask what is it? Is it payment? Non assumpsit? The act of limitations, or what? Ror if there be a plea, it may be all or either of those which I have mentioned. The oath administered to the jurors is, that they shall well and truly trj' the issue joined. But if there be no plea, there can be no issue, and consequently the jury cannot answer to their charge. It is essential that the pleadings should be so far formal at least, as to submit some point or other to the consideration of the jury, for otherwise, the court cannot even presume, that the matters in difference between the parties have been settled by the verdict. We know, that wherever an immaterial point is put in issue, a repleader will be awarded, and for the very reason which I have mentioned, namely, that the rights of the parties were not involved in the issue, and therefore could not have been decided by the jury. There is certainly a great distinction between making defence, and pleading. The former is no more than an introduction to the latter, and although it imports a general denial of the plaintiff’s right to recover, it does not disclose the ground upon which that right is opposed, so as that it may appear whether the question decided by the jury, was upon a point material to the merits of the cause or not. Co. Tit. 127, b. The truth is, that no defence in this case, according to the technical meaning of the word, was made, the appellant Barnett having done no more than enter his appearance to the suit, so as to dispense with the nec-essit3r of process being served upon him. But if any particular plea can be presumed to have been intended by Barnett, the probable one would be the general issue; and if so, it may properly be objected 2dly, that the verdict is totally immaterial, since it is neither for nor against the appellants. The jury have found “that the defendants have not paid the debt in the declaration mentioned;” now they may not have paid the debt claimed, and yet they may never have assumed to pay it. The former may be the consequence of the latter, and the jury have not found that he did assume. So that the very gist of the issue (if there be any) is still left undetermined. 3 Salk. 374.
    3d, Stoddart was certainly an interested witness. If the tobacco sold for a price equal to the sum drawn for by the appellants, *then Forest and Stoddart had no right to demand any thing from either the drawers, or endorsers of the bill, and an action, for money had and received, might have been maintained against them by the appellees, in case they had failed in this suit, upon the ground of the tobacco having sold for a greater -price than that credited by Forest and Stoddart. The success of the appellees, was consequently interesting to Stoddart.
    
      Washington in reply.
    The case from Salk. 374, was decided when the courts were much more rigid, than they now are, respecting the doctrine of verdicts. The rule now is, that after a fair trial, the court will not set aside a verdict, merely because it may be informal, but will mould it into form. And if this be the rule in England, it should be very liberally adopted in this country, when it is recollected, that in the County Courts, a short minute only is made of the proceedings by the clerk, during the sitting of the court; the verdict is usually drawn by the jury in general terms, and the extension of it so as to make it responsive to the issue, is always left to the clerk, who does it after the term is ended, when he makes out a complete record. So that errors of this sort are the mere misprisions of the clerk. But in this case, the verdict stated in the record substantially corresponds with the issue; for the damages assessed, are from the plaintiif’s non-performance of his assumption: which is clearly finding an assumpsit and a non-performance of it.
    
      
      Tlie principal case is cited in Moss v. Moss, 4 Hen. & M. 301, 302 ; Williams v. Ewart, 39 W. Va. 670, 2 S. E. Rep. 887. See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
   The PRESIDENT.

The first objection stated to the judgment of the County Court is, that the demand is for sterling money of the value of so much in Virginia currency ; in support of which, the case of Scott’s executors v. Call is relied upon. The principle of that case is a strong one in support of this judgment. The error in that was, that the jury left the value of the sterling money to be ascertained by the court, instead’ of settling it themselves; the very reverse of which has been done in the present case.

The next objection is, that the declaration is against Barnett, Woolfolk & Co. and the judgment is against Barnett & Woolfolk only. The answer to this is obvious. Barnett & Woolfolk are sued as the ostensible partners of the company, and have it completely in their power to make it a joint charge upon the whole company, by disclosing the names of the unknown partners by a plea in abatement. But instead of pleading this matter, they take the whole defence upon themselves, and it is certainly too late after verdict, to complain that the judgment is not against all the members of the company.

*But it is objected, that no plea was put in by Barnett, and consequently, that a verdict against him was improper. The declaration is against both; Woolfolk alone, pleaded, and an issue was made tip. Barnett voluntarily appeared and desired to be made a defendant with Woolfolk. It is true, that he might have pleaded separately if he had been inclined to do so: but not desiring it, his being made a defendant with the other, who was a1 issue, implies a consent to be united with him in his plea. This consent is sufficiently established by his subsequent conduct. He acknowledged notice of the taking of Stod-darts deposition; proceeded to the trial and defended the suit. I

The 4th objection is, that no assumpsit was proven. To this there are two answers. —1st, That the deposition does not appear to have been the only evidence given at the trial. 2dly, The plaintiff having proved a debt to be due, the law implies an assump-sit to pay it.

The Sth objection is, to Stoddart’s deposition on the score of interest. The only evidence as to this point is the deposition itself. Erom that it appears, that Forest and Stoddart paid the excess of the bill beyond the proceeds of the tobacco, at the request of Watson and Urquhart, and upon their special promise to be answerable for such payment. When that was ascertained, they applied to Watson and Urquhart, who performed their promise, without any agreement to refund, or to connect it in any manner with the fate of the present dispute. So that Stod-dart could be in no wise interested in the event of this cause. But it has been contended that the sales of the tobacco were fraudulent, and that there was a combination between Forest and Stoddart, and Watson andUrquhart, to shift the demand for the balance into the hands of the latter, to deprive Barnett, Woolfolk & Co. of their defence on the ground of the fraudulent sales. Of this combination there is no proof. On the contrary, there is the strongest ground to presume otherwise. Watson and Urquhart appear to have been the friends of Barnett, Woolfolk & Co. and, as such, they endorsed their bill and gave it credit. They went further, arid requested honor to the bill, tho’ the funds upon which it was drawn should prove deficient: by which friendly interference they preserved the credit of the drawers, and saved them from the payment of damages which would have been the consequence of the bill’s being protested. This conduct does not warrant a suspicion of combination to the prejudice of Barnett, Woolfolk & Co. But it was said that Watson and Urquhart ought not to have paid '*the money without the consent of Barnett, Woolfolk & Co. If they had been litigious, or inclined to evade a performance of their promise, they might have delayed payment under a pretext of this sort. But knowing that they had induced Forest and Stoddart to advance the money, they very properly and without delay repaid it with interest, having nothing to do with any dispute between them and the appellants; but leaving it to be litigated between them, when and how they pleased. This may still be done if the appellants are inclined, and nothing sworn by Stoddart in this suit, can avail him in that.

Another objection to this deposition is, that the witness has not subscribed it. Whether Stoddart could be prosecuted for perjury (in case he has taken a false oath,) in consequence of this omission, is a question which we leave to he determined by those before whom the prosecution shall be instituted. The deposition is certified, by two magistrates, to have been taken before them upon oath, which gives it sufficient authenticity.

The objection to the verdict applies merely to the form of it. The damages assessed by the jury are for the non-performance of the assumption, in the declaration mentioned, and the irregularity, in the extension of the verdict, is apparently a clerical misprision and therefore amendable.

Judgment of the District Court affirmed.  