Shropshire v. Shepperd , 3 Ala. 733 ( 1842 )

COLLIER, C. J.

We infer that the bill of exceptions recites all the evidence, which tended to establish a partnership between the witness and the plaintiff below. Without undertaking to consider, whether the facts are such as to show a partnership, so far as third persons are concerned, we are satisfied they do not warrant the conclusion, that the witness was an ostensible partner; and it maybe conceded that he was a dormant partner, without affecting in any manner, the propriety of the refusal of the Judge of the Circuit Court to charge the jury as prayed. It has been repeatedly held, that it is not necessary that a dormant partner should join with an ostensible partner in an action against a person who dealt only with the latter. Collyer on Part. 393; Lord v. Baldwin, 6 Pick. Rep. 548. In the present case, there is no evidence in the record, that the defendant purchased goods of the witness as a tradesman, carrying on a business in which he was interested; and in the absence of proof to this point, we can make no such intendment.

No objection was made in the Circuit Court to the compe-, tency of the witness, but his testimony was permitted to be given without objection, and the Court was then asked to charge, that if true, he was a partner of the plaintiff, he should have been joined in the action. This charge, we have seen, was rightfully refused; and the consequence is, the judgment is affirmed.