Dickson v. Collins, Brother & Co. , 17 Ala. 635 ( 1850 )

CHILTON, J.

The Circuit Court committed an error in admitting the testimony of D. Dickson, the object of which was to fix a joint liability for a demand, which the witness was confessedly bound to pay. The declaration charges the witness’ liability; he admits it., and the plaintiff below now offers him to prove that Josiah Dickson is jointly liable with himself, blithe is met with the objection that the evidence is improper, unless a partnership is provad aliunde. This the plaintiff failed to do, nor did he even propose to connect such proof with proof of a partnership thereafter to be adduced. The case of Aston v. Jemison, at the last term of this court, and the authorities cited in that opinion, are conclusive to show that this proof should have been rejected: The only difference in the two cases, is, that in that case the witness was bound by note — here, by account for goods sold. In neither case should he be allowed to make another share with him the burthen by his own testimony. The partnership being once established, the proof would be legitimate to show a sale and delivery of the goods to ike firm.; till then, or unless the proof had been proposed in connection with a proposition to make such proof, which would render it legitimate, it was improper. The proof offered, indirectly at least, established the existence-of the firm or partnership, as there could have been no sale and delivery to the partnership, if no such firm existed. — See Marquand v. Webb, 16 Johns. R. 89; Purce v. Kerney, 5 Hill (N. Y.) R. 82; Taylor v. Henderson, 17 Serg. & Rawle, 453; Norman v. Norman, 2 Yates R. 154; Bell v. Porter, 9 Conn. R. 23; Post & Main v. Lewis, 1 Ala. R. 65, as to the competency of David D-ixon to establish a joint liability.

Let the judgment be reversed and the cause remanded.