
    Columbia, November Term, 1812.
    William Sims vs. William Tyre.
    It appeared that the son of the defendant, as the agent of his father, had aided in removing a major Ming from Virginia, on a consideration that he was to be loaded back to Virginia with cotton. On his arrival here, he received a load of cotton of the plaintiff, weighing about 1814 pounds, and gave the following receipt: — “ Received of James Ming and William Sims, eighteen hundred and fourteen pounds of cotton, to be delivered, according to directions from James Ming, in writing, to Samuel Shelton and others. — Dec. 22nd, 1808.
    (Signed,) Wm. Tyre.
    The instructions were as follows : Mr. William Tyre will please to deliver to his father, at home, two hundred weight of cotton, also lodge at Num-no one hundred weight, for Capt. Woodson, and twenty-five for Mr. Dabney, and carry the balance to Samuel Shelton, in Warren.
    (Signed,) James Ming.
    The defendant was to have ten shillings a day, Virginia currency, and the days drive computed at twenty miles; and to be found all necessary provisions ; and he was to be paid in cotton, at what it would sell for in the neighbourhood in which he Jived in Virginia. He received twenty dollars in part of the freight hack to Virginia. When the cotton was carried to Shelton, defendant demanded payment for the debt, which Ming owed him, but which Shelton refused to pay; he then retained four hundred and seven pound of the cotton, and delivered the rest to Shelton. The smaller parcels were delivered agreeably to the instructions. It was proved on the part of the defendant, that Sims had said he let Ming have the cotton. The Judge charged the jury to find for the plaintiff, and they found for him one hundred dollars. The defendant moves for a new trial, on the following grounds: 1st, That the receipt given by Wm. Tyre Jun. for cotton, and the instructions given form a new contract, differing from that entered into between defendant and Ming in Virginia : 2d, That should the defendant be liable, the action should have been brought in the joint name of Ming and Sims. The receipt being given to them jointly.
   Colcock, J.

As to 'the first ground, I do not think the defendant can maintain it, for the son was unquestionably his agent, to perform the contract originally entered into between the father and Ming. The waggon and team were proved to have belonged to the father, and the defendant is therefore liable, if there be any cause of action.

On the second ground, I am of opinion, that the plaintiff’s suit should have been brought on. the written contract, in the joint names of Ming and Sims, and that no action can be supported by Sims alone, for the subject of that receipt. The verdict in this case would be no bar to an action brought by -Ming, or by Ming and Sims. ' Thus the defendant might be subjected to three suits for the delivery of the cotton. The receipt was joint, and therefore the property must be considered as belonging to them both ; and if so, was liable for the carriage to Virginia. I am, therefore, of opinion, the motion should be granted.

Nott, Grimke, and Brevard, concurred.  