
    William Lake, et al. vs. W. W. Munford.
    In a suit against some of the members of an unincorporated company, which had been engaged in banking, one of the members of that company, who had been so from the commencement, is a competent witness for the plaintiff in the suit.
    In an action against an unincorporated banking association, a certificate of the agent of the association, that “ M. had deposited with him four hundred and thirty dollars, in tickets, on deposite, subject to him only, on the return of the certificate,” imports on its face, no liability against the company.
    It is not necessary that evidence offered to the jury must appear at the time it is offered, to be relevant; it is sufficient if its relevancy appear at any time before the case is closed.
    An unincorporated association, to transact banking, was formed in 1838, and issued a large amount of tickets ; under a privilege contained in the articles of association for the admission of new members, L. and M-, in 1839, became members of the association ; field, that they .were not liable for the tickets issued in the previous year.
    Where an unincorporated association for banking has dissolved its connection, and commissioners are appointed to wind it up, neither they nor their agents, have any authority to bind the members of the association by any new undertaking.
    In error from the Yalobusha circuit court.
    William W. Munford, suing for the use of John Fountain, brought an action of assumpsit, in the circuit court, against Nathan Howard, Ralph Coffman, William Royall, Roland T. Bryarly, Levin Lake, Thomas Flack, Albert G. Anderson, Robert M. Spicer, Merrick Bacon, David M. Beck, James M. Howard, Howell N. Edmunds, David E. Cuyler, William Lake, George K. Morton, John C. Abbott, Benjamin D. Smith, John Gibbs, James Y. Blocker, Jeremiah T. Talbot, Richard Hodges, and William H. Crenshaw. The first count in the declaration exhibited the cause of ■ action, and was in these words: “For that whereas the said defendants heretofore, to wit, in the county of Yalobusha aforesaid, being members of a certain banking establishment, called the Grenada Savings Institution, on the 3d day of May, in the year of our Lord 1839, at Grenada Savings Institution, to wit, in the county aforesaid, made their certain instrument of writing, and thereby then and there certified that the said plaintiff, by the name of W. W. Munford, had that day deposited in this office, meaning the institution aforesaid, at the date aforesaid, the sum of four hundred and thirty dollars, in tickets, upon deposite, subject to him only, and the return of this certificate, signed N. Howard, John S. Browning, William H. Crenshaw, commissioners, per D. E. Cuyler, and then and there delivered the instrument of writing aforesaid to the said plaintiff, by means whereof the said defendants became liable to and promised to pay said plaintiff the said sum of money aforesaid. And the said plaintiff avers, that the said commissioners aforesaid were duly appointed and elected by the members of the said institution, to act in all matters pertaining to said institution in as full and ample a manner as if all the merribers thereof were present and acting in concert, and that the said commissioners aforesaid were fully authorized to sign said instrument of writing, either in person or by their agent, and the said David E. Cuyler, by the ,name of D. E. Cuyler, was duly appointed and empowered the agent of said commissioners, to sign their names to the said instrument of writing aforesaid ; and by the power vested by the said commissioners aforesaid, the said David E. Cuyler, by the name of D. E. Cuyler, drew up the said instrument of writing aforesaid, and signed the names of the commissioners aforesaid, by their special request, and they, the said commissioners, recognized the said act for themselves and for the said Grenada Savings Institution; and the said plaintiff avers that the said tickets deposited, for which said instrument of writing aforesaid was given, in manner aforesaid, were ifi fact the issues of the Grenada Savings Institution aforesaid; that they were each and all of them signed N. Howard, president, and R. Coffman, cashier, and that all the defendants aforesaid recognized the issues thereof, and made themselves liable, individually and collectively, jointly and severally, to redeem the said tickets aforesaid. And the plaintiff further avers, that at the time the said David E. Cuyler, by the name of D. E. Cuyler. signed the names of the said commissioners aforesaid, he was the actual agent of said commissioners, and fully empowered so to do, and that the said commissioners aforesaid were, at the same time aforesaid, the actual commissioners of said institution aforesaid, fully empowered to appoint agents to sign their names, and to sign them themselves, for the institution, appointed so to do by the said defendants.”
    To this action of assumpsit most of the defendants appeared, and plead non assumpsit; but the defendants, George K. Morton and William Lake, plead non assumpsit, accompanied with an affidavit that the plea was true in fact, and that they were not members of the Grenada Savings Institution at the time the tickets named in the certificate were issued.
    A jury was empaneled upon this plea, and brought in a verdict for the plaintiff. During the trial, the plaintiff produced David E. Cuyler, as a witness; he was sworn upon his voir dire, and stated that he was a member and partner in the Grenada Savings Institution, from its commencement to its dissolution ; that he was in no wise interested in the event of the suit; that his name appeared upon the record as a party defendant, but the suit had been dismissed as to him. The defendants then objected to his giving testimony, but the objection was overruled, and exceptions taken. Upon being sworn in chief he stated, that when the Grenada Savings Institution was on the point of dissolution, the members had a meeting, and appointed three commissioners, namely, N. Howard, William. H. Crenshaw, and John S. Browning, to settle and wind up the affairs of the institution: that he acted as the agent of the commissioners, in issuing the instrument or certificate sued on ; that the members of the firm generally knew that he acted as such agent, but did not know that Morton or Lake knew it. The plaintiff then produced the book containing the constitution and by-laws of the company, and proved the signature of all the defendants to it. He then read from the book the following entry: “ At a meeting held in the town of Grenada, on Saturday, the 6th day of January, 1838; for -the purpose of taking into consideration the propriety of establishing an institution for the purpose of issuing change tickets, Nathan Howard was called to the chair, and Benjamin D. Smith appointed secretary. The object of the meeting being explained from the chair, upon motion it was resolved, that in order to establish a circulating medium of change tickets, upon a surer foundation than that of individual tickets, it is expedient to form an association for that purpose, to be called the Grenada Savings Institution. A constitution and by-laws were adopted, for the government of the same, and Nathan Howard was elected president ; B. D. Smith, vice-president; R. Coffman, cashier; and R. T. Bryarly, secretary of the institution. The meeting then adjourned till seven o’clock, P. M. of the same day.”
    On the same day, the association met, and resolved that the president and cashier of the institution proceed, as soon as convenient, to sign ten thousand dollars of the tickets of the institution, and that the cashier be authorized to issue them, on receiving current bank notes in exchange.
    The constitution and by-laws were then signed, and are set out in the record. It is not deemed requisite to notice them further, except to state, by a provision in the constitution, new members were elected by ballot; that on the 31st of May, 1838, D. E. Cuyler and George K. Mo.rton, were duly elected members; and on the 18th of June, 1838, Mr. William Lake was duly elected a member.
    On the 7th of March, 1839, the association had a meeting, at which both Lake and Thornton were present, when three commissioners were appointed, to take charge of the assets of the institution, and settle up its affairs; and John S. Browning, William H. Crenshaw, and N. Howard, were elected.
    The certificate sued on was in these words :
    
      Grenada Savings Institute, May 3, 1839.
    W. W. Munford has this day deposited in this office, four hundred and thirty dollars, in tickets, upon deposit, subject to him only, and the return of this certificate.
    N. Howard, )
    John S. Browning, > Commissioners.
    
    William H. Crenshaw, )
    Per D. E. Cuyler.
    
      The plaintiff further proved, by Cuyler, that the tickets for which the certificate sued on was given, were the tickets issued by the company under the resolution passed on the 6th of January, 1838.
    This was all the evidence; whereupon the defendant asked the court to instruct the jury : ,
    1. That signing the constitution, and being present at the meetings of the institution, even if the person so present were a partner, do not of themselves make him a partner ; that there must be an actual right to participate in the profits of the partnership to constitute one a partner.
    2. That the jury must believe, from the evidence, that these defendants were actual partners, or held themselves out to the world as such, before they can be made liable in this suit.
    The court gave the last, but refused the first instruction, to which exception was taken, and a writ of error prosecuted.
    
      A. C. Baine, for plaintiffs in error.
    1. A fatal error was committed by the court in the very commencement of this cause, for which the judgment must be reversed. It is laid down in 1 How. R. 26, that a partner in a firm can never be so divested of his interest therein, as to be ■a witness in relation to the firm.
    2. A second fatal error was the permitting the instrument sued on to be read to the jury at all, without proof of the authority of Cuyler, the agent of the commissioners, Howard, Crenshaw and Browning, to make it. The authority of said commissioners to Cuyler to make it was void, even if expressly given, unless the defendants in some way authorized it in the beginning, or confirmed and sanctioned it afterwards. An agent cannot make an agent. See Story on Agency, p. 14, § 13, and the two following sections, and the numerous authorities therein referred to. On this point of agency the court is referred particularly to the opinion of the court in Fox v. Fisk, 6 How. R. 345, where the law is laid down fully and expressly, as we contend for. Another error was the ruling out, or refusing to give the instructions asked for by the defendants, that is, the first instruction. On this point see Dickinson v. Vapley, 21 Com. Law R.; 14 lb. 63; 17 lb. 460; 19 lb. 233 ; 21 lb. 273.
    Fisher, for defendant in error.
    Cuyler’s evidence was properly admitted. He had acted as agent for the defendants below. The agent is always competent to prove his agency. The rule in Howard does not apply to this case. The witness, if interested at all, was interested against the plaintiff below. It is admitted that a partner cannot be introduced by his copartner, as a witness. But here he is against the copartners. He is introduced by a party suing the other copartners. There is therefore no analogy between the case in Howard, and the one under consideration. In that case the partner was introduced by the copartner. Here he is introduced on the other side. There is nothing in the other objections.
    
      W. Yerger, on the same side.
    In this case it is assigned for error, that Cuyler, a partner, was offered as a witness in favor of the plaintiff. He was clearly competent. He had no interest in the suit, except adverse to the party calling him, and was therefore competent. The defendants could not have used him as a witness, as this court decided in 1 Howard, 26. See 1 Phillips on Ev. 60. Cuyler would haye been competent, though a party to the record, unless he objected himself. 1 Phillips on Ev. 72.
    A partner is a good witness against his copartner, to prove the partnership. 5 Barn. & Cresw. 385 ; 4 Maulé & Sel. 476 ; 1 Phillips on Ev. 60.
    The objection to the introduction of the instrument sued on as evidence is futile; that the plaintiff had a right to read without any evidence of its execution. Whether Cuyler’s testimony did or did not show his power to sign in behalf of the defendants, was a question for the jury, who decided that he had the power; and no motion for a new trial was made in the court below, and of course the verdict must stand, even if the court should think it was clearly without evidence, though I think the evidence sustained the verdict.
    
      The instructions of the court were evidently right, as well as the refusal to give the first asked for by defendants. The evidence clearly showed that the defendants were partners, and the charge was therefore irrelevant. But even if not irrelevant it is not the law, where the interest of third persons is concerned. A man, as far as third persons are concerned, is held and treated as a partner, where he holds himself out as such, though he does not participate one dime in the profits of the concern. Story on Part. 96, 97.
    Upon the whole, as no motion for a new trial was made, this court must let the judgment stand, although there was not evidence to sustain the verdict.
   Mr. Justice Clayton

delivered the opinion of the'court.

This was an action of assumpsit brought against the plaintiffs in error as members of the Grenada Savings Institution, which was an unincorporated association for banking purposes. The plaintiff, in order to prove the liability of the defendants, who had put in the plea of non assumpsit under oath, introduced one D. E. Cuyler as a witness. The defendants required him to be sworn on his voir dire, and in reply to an interrogatory he stated, that he had been a partner in the institution from the commencement till its dissolution. He was then objected to, but the court overruled the objection and permitted him to be sworn. The correctness of this, is the first question made in the argument. The witness was no party to the suit. This case is different from the two cases heretofore decided by this court, in relation to the admissibility of partners as witnesses, in this, that here the partner is called by the plaintiff to testify against his copartners; in those he was called by the copartners to testify in their behalf. Collins v. Flowers, 1 How. 27. Scott v. Watkins, 2 S. & M. 255. Though the language in the former case is very broad, it must be taken with reference to the facts of the case before the court. We think that in a case like the present, a partner is competent. In reference to a joint debtor, the rule laid down in 2 Phil. Ev. 81, and 3 Phil. 1520, “ that such debtor when called by the plaintiff is competent, unless called to prove a joint liability, because his interest is adverse to the plaintiff,” was adopted by us in the case of the Com. & R. R. Bank of Vicksburg v. Lum, 7 How. 419. As all debts are with us joint and several, there is perhaps no reason for the restriction upon .the,rule stated by Phillips, or rather by his annotators. Upon principle, the same rule would seem to be applicable to partners, and it has been so expressly decided. Blackett v. Weir, 5 Barn. & Cresw. 385. 1 Phil. 60. We think therefore that the witness was competent.

, The next objection arose to the admission of a certificate of deposit, purporting to have been executed on the part of the institution, in favor of Munford. The association was formed 6th January, 1838, and one of its articles provided for the reception óf new members. It was resolved at that time, that they should proceed immediately to issue notes. Morton became a member on the 31st of May, 1838, and Lake on the 18th of June. Ón the 7th of ikarch, 1839, the association appears to have been dissolved, and commissioners were appointed to wind up its concerns. The certificate read in evidence against the objection of the defendants, bore date 3d May, 1839, some time after the dissolution. It is in these words, “ W. W. Munford has this day deposited in this office four hundred and thirty dollars in tickets upon deposit, subject to him only and the return of this certificate.” This certificate clearly does not show any liability of the defendants, because it does not state, whether the tickets deposited • were those of the institution. To supply this defect, the plaintiff asked the witness, if he had given it for and on behalf of the commissioners, and if the consideration was the tickets or issues of the Grenada Savings Institution, to which he replied in the affirmative. The point then arises, whether after this explanatory evidence, the certificate was admissible. The true rule in regard to the introduction of testimony, except perhaps in the trial of ejectments, is that the evidence should appear to be relevant at the time it is offered. A more liberal practice, however, has prevailed, which we are not disposed to disturb, that if the evidence be shown to be relevant at any time during the trial, it is sufficient. At the time 'the certificate was offered and objected to, it did not appear to have any relation to the liability of the defendants. The subsequent testimony was intended to give it that effect. If it did so, it was properly admitted, if not, it should have been excluded, when the plaintiff closed his testimony. A few considerations will determine this point. , The institution was organized early in January, 1838, and one of the first resolutions then adopted, was that “ ten thousand dollars in tickets should be issued as soon as convenient,” and this is the only resolution of the board which was given in evidence, that gave authority for any issuance of its paper. The defendants Morton and Lake did not become members of the association, until some months afterwards, and they did not thereby become liable for its previous debts, without some special undertaking; which is not shown. 3 Kent, 35. This is the point which they distinctly present in their plea, as appears by the affidavit. After the dissolution neither the commissioners nor their agent had any authority to bind the members of the association by any new undertaking. The certificate was therefore no evidence against them, unless given for'"tickets for which they were liable. The bill of exceptions sets out all the testimony, and there is no proof to show that it was given for tickets or notes of that character. To hold them bound for such as were issued before they became members, is not warranted by any just principle of law.

We think, therefore, in relation to the defendants Lake and Morton, that the court erred in permitting the certificate to be read to the jury, without evidence that it was given for notes or tickets or other liability of the association incurred after they became members. As to the defendants who put in no plea under oath, there is no error, but the judgment must be reversed as to the parties who prosecute the writ of error.

Judgment reversed and cause remanded for new trial.  