
    Whitwell S. Randolph vs. Mary P. Govan.
    The ease of Perry v. Randolph, 6 S. & M. 335, cited and confirmed.
    In an action brought by G. against R., the deposition of D., who had been proved to have been the partner of R. in relation to the subject-matter of the suit, and had himself made the contract as such partner, on which the suit was founded, was held not to be a competent witness for R. to disprove' the partnership.
    While it is irregular for the judge in the court below, after the jury have retired, to instruct them upon any point involved in the ease, yet if the instruction be in conformity with the law and pertinent to the facts, the irregularity will not be sufficient to reverse the judgment below, though excepted to at the time by the party objecting to it.
    In an action of assumpsit, brought by G. against R., after the evidence had been closed and the jury had retired, the court, at their instance, notwithstanding the objections of R., instructed the jury that a contract in evidence before them “constituted one D. and R., the defendant, partners, and either of them had the right by contract to bind the firm: ” held, that this instruction, though given at an improper time, was not a “ summing up of or comment on the evidence.”
    In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.
    The facts of this case will be sufficiently apparent, from the opinion in this case and the report of the case of Perry v. Randolph, 6 S. & M. 335.
    
      W. H. Walter, for plaintiff in error.
    
      Watson and Clapp, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The construction of the articles of partnership between the plaintiff in error, and Kenneth Dye, was settled by this court, in the case of Perry v. Randolph, 6 S. & M. 335.

The relation of William Gift to the parties in controversy, is precisely the same in this and the case above referred to. In that case, his evidence, for sufficient reasons, was held to be incompetent. His deposition therefore on the trial of this case below, was properly ruled out.

The deposition of Kenneth Dye was offered, and ruled out. Dye was the former partner of Randolph, and had sold out to Gift. It was upon the contract of Dye, acting as a partner of Randolph, that this suit was brought. Dye was directly interested in preventing a recovery. Upon a plain principle, his evidence was properly excluded.

The jury having retired to consider of their verdict, and not agreeing upon the construction of the articles of partnership, returned into the court-room for instructions from the judge, who gave them the following, to wit: The court charges the jury that the articles of agreement in proof, constituted Dye & Randolph partners in the race-course, and each partner had a right to bind the firm by any contract made in relation to the racecourse. This charge was given against the consent of the defendant’s counsel.

This charge is made the foundation of two exceptions 1. That it was given at an improper time; and 2. That it was given in violation of the statute (Hutch. Code, p. 888, Art. 9, sect. 14,) which directs that “For the better preservation of the sanctity of the trial by jury, no judge or justice, before whom any issue, or issues of fact may hereafter be tried by a jury, shall sum up or comment on the evidence.”

The last exception is not well taken. There was no comment upon the evidence. The charge was simply explanatory of the legal effect of the articles of partnership, which had been offered in evidence, or, in other words, the charge contained a construction of them. The articles had been received as evidence, and it was, certainly, the province of the court to give them their legal construction.

It was, to say the least of it, an irregularity on the part of the court, to charge the jury, under the circumstances detailed. But as no objection is made to the correctness of the instruction, we do not deem it a sufficient ground for reversing the judgment.

Let the judgment be affirmed.  