McCutchin vs. Bankston.

the firm and for its use, by the admissions of one its members. The Court below laid down the proposition that the admissions of one of the firm could not be given in evidence to charge another, until the partnership was first established, and that whether the partnership was established or not, was a question for the Court to determine. In this case the Court believed that it was not so

proven as to let in the admissions of Thomson. The note, argued the Court, bears date 12th May, 1837, and the testimony was, that in 1836 or 1837, the partnership was formed; there was therefore no evidence upon which to rely, that on the 12th of May, 1837, the partnership was formed, and that the idea that the partnership was in existence on 12th May, 1837, the date of the note, is rebutted by the fact that the defendant had signed the note individually. We think the Court administered the law correctly. Where it is sought to charge several as partners, an admission of the fact of partnership by one, is not receivable in evidence against any of the others, to prove the partnership; the partnership must first be shown to exist, then the admissions of one are receivable to charge the others. And it is likewise true, that in order to the reception of the admissions of one of the partners, the Court is to determine whether or not the partnership has been established. The reasons for both branches of this rule are very satisfactory and embraced in a nut shell. If there be a partnership, then there is a joint interest, and the admission of one of two or more jointly interested in the same subject matter, is the admission of all. And if there be a partnership, one of the firm, even although, as in this case, not a party to the suit, cannot be sworn because he, in the event of a recovery against the defendant, will be liable to contribution. But if there be no partnership, then the alleged member is himself a competent witness, and of course, in that event, his admissions are not competent testimony.

Before the partnership is established, the objection to the admissions of a member of the firm is to their competency, and before they are received the Court must know whether they are competent or not; for incompetent or illegal testimony ought in no instance to be sent to the jury. Hence the Court must judge whether there be any evidence, and if any, of the force and effect of it, going to establish the existence of the partnership. I remark, as matter of precaution, that we are not now determining how far, and in what cases, and under what limitations, the admissions of one partner may bind his co-partners; as in relation to the effect of

McCutchin vs. Bankston.

66

such admissions, in some cases there are nice distinctions in the books; we wish this opinion to apply alone to the facts of this case. Mr. Greenleaf lays down the rule thus: It is only after the partnership is shown to exist, by proof satisfactory to the Judge, that the admission of one of the parties is received in order to affect the others." Greenleaf's Erid. sec. 177. And Starkie announces it thus: "When the fact that several parties are partners has once been established, the act or declaration of one partner, relating to the subject matter of the partnership, is evidence against the rest, although the partner whose acts or declarations so given in evidence be no party to the suit." 2 Starkie on Evidence, 45; Idem, part 4, page 1074. See also, Nicholls vs. Dowding et al. 1 Starkie R. 81; Grant vs. Jackson et al. Peake's Cases, 204; Burges vs. Lane et al. 3 Greenleaf R. 165; Whitney vs. Ferris, 10 Johns. 66; Wood vs. Braddick, 1 Taunt. 104; Sangster vs. Mazarredo et al. 1 Stark. R. 128; Van Reimsdyk vs. Kane, 1 Gall. 635; Harris vs. Wilson, 7 Wend. 57; Whitcomb vs. Whitington, 2 Doug. 652; 2 Bingham, 306; 8 B. & C. 36; 8 Bingh. 309; 1 B & A. 467; 3 Pick. 291; 17 Mass. 222; 2 Pick. 581; 4 Pick. 382; 1 McCord, 541; 4 Conn. 336; 8 Conn. 268, 276, 277; 5 Gill & John. 144; 7 Wend. 441; 2 Hawk. 209.

We do not feel authorized to say that, according to this record, there was sufficient evidence of the existence of the partnership at the time the note was given, to let in the admissions of William Thomson, and cannot disturb, upon the first ground of error, the judgment of the Court.

The Court below did not err in refusing the motion for a [2.] continuance. This cause had been submitted to the jury on the appeal. The ground upon which the plaintiff claimed to withdraw and continue it was surprise, in consequence of the rejection of testimony because of its incompetency. This cannot be a case of surprise. It was a misapprehension of the law of evidence, which parties, through their counsel, are presumed to know, and must know at their peril. Let the judgment of the Court below be affirmed.

McDonald vs. Bradshaw.

No. 34.-CHARLES J. McDONALD, Governor, &c. for the use of AVERA BUCKNER, plaintiff in error v8. ELIJAH BRADSHAW and others, defendants in error.

[1.] Where the old Sheriff fails to deliver to his successor an execution placed in his hands during his term of office, and receives money thereon fourteen days after the appointment and qualification of the new Sheriff, his securities are not liable, in an action on the bond, to account to the defendant for said money, notwithstanding he has been compelled to pay it a second time to the plaintiff.

Covenant upon Sheriff's Bond. From Monroe Superior Court. Tried before Judge FLOYD. September Term, 1846.

For the facts, see the opinion of the Supreme Court.

STARK, KING & GORDON, for plaintiff.

PINCKARD, for defendants.

By the Court-LUMPKIN, J. delivering the opinion.

This was an action of covenant on the official bond of Elijah Bradshaw, the late Sheriff of Monroe County, and his securities. The breach assigned was, that fourteen days after Bradshaw's term of office had expired by the appointment and qualification of his successor, instead of turning over to his said successor, by schedule and indenture, an execution in favour of Jefferson J. Lamar, against Avera Buckner and others, which had been placed in his hands five months previously, but had remained unexecuted, he wrongfully withheld the fi. fa. and received a large part of the money due thereon from the defendant, and failed to account for the same; and that, by reason thereof, Buckner was compelled to pay to the plaintiff the debt a second time. Judge Floyd awarded a non-suit, upon the ground that Buckner, having paid the money voluntarily to Bradshaw when he was out of office, and consequently when he had no right to receive it, that he could not sue the securities on the bond to recover it back. To this judgment the plaintiff below excepted. Was the Court right in awarding a non-suit?

[1] Either Bradshaw, the old Sheriff, had the right to collect the debt, or he had not. If he had the right, the payment to him by Buckner was a discharge of the execution; and notwithstand

McDonald vs. Bradshaw.

ing he may have been compelled to pay it a second time, the order to do so was illegal, and consequently the Sheriff's securities cannot be made to suffer. If, on the other hand, Bradshaw had no right to receive the money, then the payment by Buckner was voluntary, and the securities are exempt. In any view therefore of this case, the point to my mind is a plain one.

By the 48th section of the Judiciary Act of 1799, Prince 217, the old Sheriff is required at the expiration of his office, to turn over to his successor, by indenture and schedule, all writs and processes which shall remain in his hands unexecuted; and should he neglect or refuse to do so, he is liable to make satisfaction in damages to the party aggrieved.

This provision is vitally important to plaintiffs; for, by detaining writs and other process, debtors might escape or remove their property, and the party be left remediless. We do not perceive, however, that defendants could be injured by such default.

It is said in the argument, that but for the bond, Bradshaw could never have obtained the custody of this fieri facias, under color of which he inflicted this wrong. The answer to this is, that the securities undertook for the acts of Bradshaw done as Sheriff, and not for his larcenies, assaults and batteries, and other private misconduct. Suppose he had purloined the paper from his successor's possession, and the defendant had paid it ignorantly, as he is alleged now to have done, would it have been pretended that the securities would be responsible?

In Brewer vs. Knapp, et al. 1 Pick. R. 332, a landlord, by indenture, leased a house for one year to a principal and securities. The principal entered, and continued to occupy after the term had expired; held by the Supreme Court that the securities were not liable for rent accruing after the end of the term. And yet, but for them, the tenant could not have got possession of the premises. They were bound for one year, and they could not be made answerable for the rent of a longer term.

And this constitutes the conclusive defence to the action. The undertaking of securities is one stricti juris, and they cannot be bound beyond the terms of their contract. Walsh vs. Bailie, 10 Johns. 180, et passim. Here the obligation, on the part of the securities, was for the faithful performance of Bradshaw's duty as Sheriff, during his continuance in office. How long was that? until his successor was qualified. The record shows that this payment was made fourteen days thereafter. Whatever may be the Engli

McDonald vs. Bradshaw.

law relative to the power of Sheriffs over unexecuted process in their hands, it is clear, by reference to our statutes, that in this State the functions of the Sheriff terminate with the qualification of his successor. The new Sheriff is empowered and required to sell and carry into effect every levy made by his predecessor, in like manner as the predecessor could have done had he continued in office. And further, it is made his duty to make titles to property sold under execution by the old Sheriff, where no conveyance had been executed. By another act, and it seems to have been deemed necessary to pass a statute for this purpose, Sheriff's are required to perform the duties of their office, during the time intervening between the election and commissioning of their successors. But what is still more conclusive upon this point, it is made penal for the former Sheriff wilfully to detain from his successor any records, papers, documents, books, or other writings appertaining or belonging to the office.

I assume it, then, as incontrovertible, that the lawful custody of this execution ended with the qualification of Bradshaw's successor. And if so, it follows as a legal corollary, that the liability of the securities could not extend to any act done or omitted after that time.

This doctrine was most elaborately discussed by the present Chief Justice of the United States, and the first talent of the Baltimore bar, in the great case of the Union Bank of Maryland vs. Ridgley, 1 Har. & Gill, 432; where an attempt was made to charge the defendant as security to one Higginbotham, the cashier. When the bond was given, the charter was limited in its duration to a certain period, which was subsequently extended by the Legislature, and the question was whether the surety could be made liable for any delinquency which occurred after the 6th of February, 1817, the day fixed at the date of the bond, for the expiration of the corporation. The Court decided, that the security was not responsible for subsequent defalcations, although bound generally for the acts of the cashier. "In construing this bond," says the Court, "we must look to the intention of the parties at the time it was executed; and that must be found in the original act of incorporation; and looking to that act, it would seem to be very clear that no responsibility was contemplated beyond the period of its duration; there was no idea then of carrying it any further; the parties contracted with a view to that duration and their agreement must be expounded accordingly. If the defendant had been asked at the time of executing the bond,