Imágenes de páginas
PDF
EPUB

articles of partnership, bind the firm, even for money which is applied in
liquidation of the debts of the firm, yet the principle would not apply to the
case of the signature of the firm, hy one of the partners to a note to a credi-

tor of the firm, not on a new liability, but for a pre-existing debt. Ib.
4. On the trial of a suit against a member of a firm, the name of which had been

subscribed as sureties to a note, and who had plead non est factum, the court
below at the instance of the plaintiff, instructed the jury, that “ to discharge
members of a partnership not executing the note from the liability of a sure-
tyship contracted in the firm name, it must appear to have been without the
scope of the partnership: " Held, that as far as it extended, it was a correct

exposition of the law. 16.
5. The indorsement by a member of a firm of a note payable to the firm, though

made without the knowledge of his copartner, to a third party in the payment
of a debt of the firin, will pass the legal title to such indorsee.

Commercial Bank of Manchester v. Lewis, 226.
6. Where certain notes were held by, and payable to, a copartnership consisting

of two members, who agreed with a former copartner to apply these notes so
held by them to the payment of the debts of the former partnership, consist-
ing of all three of them, such agreement would give the former partner
nothing but an equity against the other two, to have this agreement per-
formed; and that agreement could only be enforced against those having

notice of it. Ib.
7. If, therefore, the two partners, holders of the notes, pass them off to a third

party, with instructions to apply their proceeds to their debts alone, and this
is done without any notice to such third person of this agreement between
these two and their former partner, the latter will have no claim against

such third person for the proceeds of such notes. Ib.
8. It is a well established rule of practice, that parties litigant are not restricted as

to the order in which they may choose to present their evidence ; in an action,
therefore, against a person alleged to be a partner of the maker, and as such
the joint maker of the note sued on, but whose name does not appear on the
face of the note, and who has denied, under oath, the execution of the note,
it is not necessary for the plaintiff to precede the introduction of the note by
proof of the existence of a partnership, or that the note was made by the
ostensible partner on account of the firm, or for its benefit. He may intro-
duce the note at first, and if, upon the trial, the plaintiff fail to show these
facts by competent proof, the evidence would be irrelevant, and would be

excluded on the application of the defendant. Lea v. Guice, 656.
9. In an action against one sought to be charged as a secret partner, while the

admissions of the ostensible partner will not be competent to establish the
partnership, yet that being shown by other proof, they will be competent to
show, that the transaction in relation to which the suit was brought, was a

partnership one. 16.
10. In an action against an alleged secret partner, on a note made by the ostensible

partner, it was shown, that the articles of partnership between the two part-
ners, recited, that they owned respectively certain lands and slaves and other
property, which should be cultivated and employed for their mutual benefit,
sharing equally the necessary losses and the profits : Held, that these articles
gave the partner charged with the conduct and management of the business,
a discretion as to the method in which the partnership property should be
managed, and authorized him to conduct the firm business according to the
necessities, usages, and customs of persons engaged in the occupation of
planting generally; it was, therefore, competent for the plaintiff, in view of
the partnership being secret, to prove what were the usages and customs of
planters generally, in order to show that the contract upon which the secret
partner was sought to be charged, was sanctioned by those usages and cus
toms; and in the like view, it was right to reject testimony as to the customs

of planting partnerships in that part of the country. Ib.
11. A dormant partner will be liable for the whole amount of the debts due during

his partnership, whether his connection with the firm be or be not known to

the creditor at the time of the contract. Ib.
12. The liability of the dormant and secret partner, is created by operation of law

independent of his intention, from the mere participation in the profits of the
business, as the credit in such cases is manifestly given only to the ostensible
partner ; but even in that case, the credit is deemed in law not to have been
given exclusively to the ostensible partner, and is binding on all for whom he

acts, if done in their business, and for their benefit. 16.
13. In fact, a dormant or secret partner is held responsible for the engagements of

the firm of which he is a member, on a principle of justice to the community,
for by his receipt and enjoyment of the profits, he takes from the creditors a
part of that fund, which is the proper security for the payment of their

debts. 16.
14. When a secret partnership is proved, and that the transaction in question was

on account of the partnership, the secret partner is bound by it, and it is imma-
terial by what name the contract is signed on the part of the frm; where,
therefore, in a suit against James K. Lea and Calvin Lea, on a note, on its
face made by Calvin Lea alone, the declaration charging the note to have
been made by the defendants by the name of “Calvin Lea,” it was held only
necessary for the plaintiff to prove the partnership, and that the note was
given on account of the partnership, to make the secret partner liable ; it was
not necessary to prove, that the partnership had a firm name, or that “ Calvin

Lea" was that name. Ib.
15. Notes given by the ostensible partner in his own name, though for partnership

business, are obligatory upon the dormant partner, even though the credit was

given exclusively to the ostensible, and not to the secret, partner. 16.
16. In an action against an alleged secret partner, to make him liable for the

contracts of the ostensible partner, it must be affirmatively shown that the
partnership existed, and that the contract in question was on account of the

firm; and when these facts have been so found by the jury, under proper
charges from the court, their verdict will not be disturbed, even though the
preponderance of proof appear to have been against it, and the court would
have been better satisfied with the verdict, had it been the other way. Ib.

PATENT.
See Land Laws.

PERSONAL PROPERTY.
1. Where, after a public sale under a deed of trust of personal property, the

property sold is left in the possession of the grantor in the deed of trust,
no presumption of fraud will arise therefrom ; and if the sale be otherwise
free from fraud, a purchaser under a judgment against the grantor in the
deed of trust, in whose possession the property is left, junior to the sale
under the deed of trust, will acquire no title to the property.

Ewing v. Cargill, 79.
2. Where, in the trial of the right of property, the claimant claims by purchase

under a deed of trust, executed by the defendant in execution of date older
than the judgment, and the jury find for him, such verdict will relieve him

from the imputation of fraud in fact in the purchase. lb.
3. The conveyance of property by deed of trust, which consumable in the use,

is not in itself fraudulent, unless it be stipulated in the deed that the grantor
may use it; and whatever may have been the intention of the parties, if it be
not so expressly stipulated in the deed, a bona fide purchaser of property at a
sale under the deed of trust, for valuable consideration without notice, will be

protected in his purchase. 16.
4. A purchaser of land and slaves, under a deed of trust, allowed the grantor

in the deed of trust, out of kindness, to remain upon the property, and exer-
cise a sort of agency over it for the purchaser, the latter employing an over-
seer, and his right as well as the nature of the possession of the grantor in
the deed of trust, under which the purchaser bought, being notorious: Held,
that three years of such possession did not render the property subject to the
debts of the grantor in the deed of trust; it was in fact the possession of the
purchaser, the grantor having no loan of the property or other interest or use

in it. Ib.
5. A bonâ fide purchaser for valuable consideration, without notice, under a deed

of trust, not void upon its face, cannot be affected by any intended fraud of the

grantor in the deed of trust. Ib.
6. A contract for sale and purchase, is an agreement for the conveyance of pro-

perty from one to another, in consideration of a payment made or intended
to be made; where such a contract for a specific commodity in esse, and sus-
ceptible of an immediate delivery is made, the property is immediately

changed, though no delivery has taken place. Ingersoll v. Kendall, 611.
7. It is not the delivery or tender of the property, nor payment or tender of pay-
ment of the purchase-money, which constitutes the sale; that is complete so
soon as the parties have agreed on the terms; that is, so soon as the vendee
says, “ I will give the price demanded," and the vendor says, “I will take it,”

the rights of both parties are instantly fixed. Ib.
8. Where the purchaser of three jennets executed his note for the purchase-money,

but left the animals in the possession of the vendor until after the dishonor
of the note, the latter had the right to hold on to them until the payment of
the note; nor was he bound to deliver or offer to deliver them to the vendee

before he could enforce payment by suit of the note. Ib.
9. The 17th sect. ch. 3, 29 Charles 2, which makes the delivery of personal

property essential to complete the contract for its sale, has never been en-
acted in this state, and is therefore not in force here; the rule of the common
law which completed the sale as soon as the terms were agreed on, without

respect to the delivery, prevails here. Ib.
10. See Deed and Execution, as to release of trust or mortgage as to personal

property.

PLEADING.
1. A mere equitable right cannot be recovered under the common counts; the
plaintiff, as in other actions at law, must have a legal right.

Dowell v. Brown, 43.
2. To an action on a bill of exchange, the defendant plead that he had been sued

by the plaintiff in the circuit court of the United States on the same cause
of action, and obtained a judgment in his favor, by which he was discharged
from all liability on the demand sued on: Held, on dem urrer to the plea, that

it was a good bar to the action. Shields v. Taylor, 127.
3. Lang v. Fatheree, 7 S. & M. 404, explained ; the proper judgment when a

demurrer is overruled is final, unless the demurrant crave leave to reply, in

which case leave should be given. Ib.
4. The case of Proskey v. West, 8 S. & M. 711, so far as it decides that the

submission of a case to a jury upon issue joined on some of the pleas, and
a verdict and judgment thereon, without disposing of a demurrer to others,
is not error to the prejudice of the party whose plea is demurred to, cited

and overruled. Vance v. Isbel, 371.
5. It is error to submit a cause to the jury, upon issue joined, without disposing

of a demurrer to one of the pleas, for which a verdict and judgment on the

issue will be set aside, and the cause remanded. Ib.
6. Under the statutes of this state, no objections upon general demurrer to a plea

can be taken merely to the form of the plea; the objection, to be available,
must be such that “ judgment according to law, and the very right of the
cause, could not be given ;” the objection, therefore, of duplicity is not available
on general demurrer to a plea. Mobley v. Keys, 677.

PORT GIBSON.
See Corporation.

POSSESSION.
See Personal Property.

PRACTICE.
1. It is error to exclude competent testimony from the jury, for which the party

may except, even though the evidence excluded would not be sufficient of

itself to entitle him to a verdict. Phillips v. Burrus, 31.
2. If a judgment, under which the plaintiff in the court below claims title, is read

without objection there, ihe high court of errors and appeals will not en.
tertain the objection to it, that the record does not show it was founded on ·

due notice to the parties. House v. Fultz, 39.
3. It is erroneous for the court to give instructions in the same case directly

opposed to each other. 1b.
4. Judgments on demurrers are under the statute, (How & Hutch. Dig. 619,

$ 9,) not final until the end of the term, until which time they may, on pro-

1

per showing, be set aside. Shields v. Taylor, 127.
5. Lang v. Fatheree, 7 S. & M. 404, explained ; the proper judgment when a

demurrer is overruled is final, unless the demurrant crave leave to reply, in

which case leave should be given. Ib.
6. It seems that, when proof is admitted, without objection, to the jury, it is too

late to remedy the omission to make the objection by asking of the court

instructions for the jury to disregard it. Edge v. Keith, 295.
7. The case of Proskey v. West, 8 S. & M. 711, so far as it decides, that the

submission of a case to a jury upon issue joined on some of the pleas, and a
verdict and judgment thereon, without disposing of a demurrer to others, is
not error to the prejudice of the party whose plea is demurred to, cited and

overruled. Vance v. Isbel, 371.
8. It is error to submit a cause to the jury, upon issue joined, without disposing

of a demurrer to one of the pleas, for which a verdict and judgment on the

issue will be set aside, and the cause remanded. Ib.
9. In a suit brought in the superior court of chancery against the state, for the

value of work and labor done, and materials furnished in the erection of the
state-house, the chancellor ordered an issue to the circuit court of Hinds
county, to ascertain the amount due; the jury found a verdict in favor of
complainant, to which no exception was taken in the circuit court by either
side, though the state moved unsuccessfully there for a new trial; the chan-
cellor, however, set the verdict aside on its return to his court, and ordered a
new trial at his bar, from which order the complainant prayed, but did not
prosecute, an appeal ; the second issue was tried at the bar of the chancery
court, and resulted in a second verdict for complainant, which the chancellor
also set aside, and directed a new trial; to this the complainant excepted, and
embodied the evidence in a bill of exceptions, and prayed, but the chancellor
refused, an appeal : leld, first, that the appeal being from the refusal to

« AnteriorContinuar »