Corps v. Robinson , 2 Wash. C. C. 388 ( 1809 )

PETERS, District Judge,

considered the witness as incompetent, upon the ground of interest; because, although, as it was said’ by the plaintiff’s counsel, if the plaintiff recover against the defendants, tbe defendants will become creditors of Barker & Annesley, instead of the plaintiff, still, they will not be creditors for so large an amount; and, consequently, will not diminish the fund out of which the witness can expect to be paid, as much as if the plaintiff should recover. For the plaintiff, if he should be obliged to seek payment from the estate of Barker & Annesley, would receive his dividend on his entire claim, whereas, should the recovery be had of the defendants, on the ground of a partnership, the defendants could only receive a dividend on one-half, they being, as partners, bound to pay the residue themselves.

WASHINGTON, Circuit Justice,

was of the same opinion, as to the incompetency of the .witness, and concurred in the reason assigned by Judge Peters. He stated another reason, which was, that it did not, and could not now appear, that the defendants would, in case of a recovery against them, be entitled to diminish the fund, out of which the witness expected to be paid, a single dollar; because the defendants could not come in, as a creditor, upon the separate estate of Barker & Annesley, except for any balance, which, upon a settlement of accounts, might be due to them; as to which, the court cannot now say that any such balance would be due. So far as the evidence has gone, it appears that Barker & Annesley paid two of the notes given for this tobacco, and as to this transaction, the defendants, if partners, would be debtors to Barker & Annesley. The plaintiff called upon the head clerk of the defendants to communicate what he knew of the partnership, which was objected to by the defendants’ counsel, on the ground, that he, no more than an attorney, ought to be compelled to disclose the secrets of his principal.

BY

THE COURT.

It is certainly a very unpleasant thing, to compel a person, standing in the situation of this witness, to betray the confidence of his principal. But it has never been considered as an objection which the witness can make, and were .it to be laid down as a general rule, that a person, standing in such a situation, coiild excuse himself from giving evidence, it is impossible to foresee the extent of the mischief which might arise from it The objection cannot prevail.

The counsel for the plaintiff waived the examination of the witness. The plaintiff gave notice to the defendants to produce the accounts rendered to them by Barker & Annesley, in certain years, in relation to their joint purchases in tobacco. The accounts were now produced, but the defendants objected to their being read, upon the ground that they could not be evidence against them, to prove a partnership between Barker & Annesley, the point in issue between the parties.

BY THE COURT. These accounts having been rendered by Barker & Annesley to the defendants, and retained by them without objection, that appears, are proper to be offered in evidence; as much, and rather more so, than if Barker & Annesley had, in the presence of the defendants, declared the partnership.

The plaintiff then offered to give evidence of the acknowledgment of Annesley, that a partnership did exist between Barker & An-nesley and the defendants, in the purchase of this tobacco.

BY THE COURT. The acknowledgment of a debt by one partner, will bind the other, because each is bound for the whole. But where the question is, whether a partnership exists or not, the acknowledgment of one of the defendants, or of a third person, is no evidence against the other. Overruled.

PETERS, District Judge, charged the jury; and after summing up the evidence, left to them the question, whether the partnership in this purchase was proved.

Verdict for the defendants.