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McLaren vs. Long, adm'rx, &c.

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

The two requests seem to go upon the assumption, that if Long used the negro as his own after his knowledge of the negro's unsoundness; and especially, if he used the negro as his own, after such knowledge and a tender back of the negro, and a refusal by Mr. McLaren to receive the negro, such using of the negro, amounts to an election to consider the negro as sound, and consequently, amounts to a waiver of all right of action in the case.

We do not think, that the law warrants such an assumption. No authority was referred to us in support of the assumption.

There was nothing, then, as we think, in the two grounds consisting of the refusals to charge these two requests.

The Court charged the jury, "that the measure of the damages was the price for which the negro was purchased by the plaintiff, and the interest, provided, the slave was tendered back in a reasonable time after the discovery of the fraud, if any."

This charge would perhaps be right, if Long had elected to rescind the contract and sue for the original purchase money and interest, as in that case, the parties would have been put in statu quo, which would give Long a right to have back his money and the interest on it, and, McLaren, (or Latham,) a right to have back his negro together with the negro's hire. But he did not do this. He sued in deceit-which was really claiming under the contract. The action of deceit, though itself in tort, grows out of contract. It is true, that there was evidence showing that an offer was made to return the slave, but it is also true, that there was evidence showing that this offer was refused, and, that Long after such refusal, used the negro instead of abandoning him, and brought suit, in deceit, instead of, in assumpsit. All of which taken together, shows, that although he offered to return the negro, yet that, when the offer was refused, he elected, not to re

McLaren vs. Long, adm'rx, &c.

scind the contract, but to hold on to it, and rely upon the right to compensation for the deceit.

What then is it, that would have been the measure of this compensation? The purchase money and the interest thereon? Only in case the negro was utterly worthless. In that case, this might, perhaps, have been the measure of the damages, though, it may admit of a question, whether interest, eo nomine, can be given in tort. But, the negro was not utterly worthless. He was able to do "a half hand's work;" he hired for $65, in 1854; when his health was last heard from, it had improved." "I think, however, that his health has improved, some," says, Dr. Walton speaking on the 11th of February, 1854.

[2] We think, then, that the Court ought to have told the jury, that if they found against McLaren, they must allow him in the verdict, the value of the negro, and of his hire. And, therefore, we must grant a new trial.

This makes it unnecessary, to express an opinion on the ground insisting that the verdict was contrary to the evidence; still, as the question is made, we may say that we should find some difficulty in holding that the verdict is not against the weight of the evidence.

The only remaining ground of the motion, is, that the Court admitted to the jury, the bill of sale made by Latham, the suit being against McLaren. But the great question in the case was, whether or not, this bill of sale though signed by Latham, was not really the bill of sale of McLaren. Long insists, that Latham, in the sale of the negro, was merely acting for McLaren. Whether Long was right or not, was a question for the jury, and on that question, the bill of sale was certainly relevant-so, we see nothing wrong in its admission.

New trial ordered on the ground of the charge.

Bower vs. Douglass, adm'r.

ISAAC E. BOWER, plaintiff in error, vs, THOMAS L. DOUGLASS, adm'r., defendant in error.

[1] To sustain a motion to dismiss, made by way of demurrer to the declaration, the motion will not be allowed, unless every material fact on which the motion is founded, is apparent in the declaration.

[2] Evidence ought not to be admitted unless it be applicable to some issue made in the pleadings.

(3.] If a note be given for a balance on an account stated, the account thus settled cannot be pleaded as a set-off. The proper defence is one which makes an issue upon the settlement.

[1] After the dissolution of a partnership, one partner cannot bind another by

a new contract.

Complaint, from Randolph county. Tried before Judge KIDDOO, May Term, 1858.

Kirksey and Bower were partners, and after they had dissolved, Kirksey converted an open account against the firm into a liquidated demand, by signing the name of the firm under scal to a note in favor of Hendrick & Hungerford. This note fell into the possession and control of Hendrick, who sued Kirksey and Bower upon it.

Upon the trial, defendant's counsel moved to dismiss said. cause as to Bower, on the ground that it appeared, from the declaration, that the instrument sued on was under seal, and executed and delivered by only one member, in the name of the firm.

Which motion was overruled, and defendant, Bower, excepted.

Thereupon plaintiff put Kirksey on the stand, who testified that he and Bower had been partners, and that he executed and delivered the instrument sued on at the time it bore date, and that Bower was not present or assenting; that they dissolved partnership in the latter part of 1851. The note sued on bore date April 6th, 1853. That after dissolution with Bower, he went into partnership with Marlin before he made this note, and continued, under the new firm, o trade with Hendrick, and that this note was given in set

Bower vs. Douglass, adm'r.

ement between the old firm of Kirksey & Bower, and of

Hendrick and Hungerford.

Cross examined. He stated that at the time of the making of the note, Kirksey and Bower owed Hendrick & Hungerford nothing; that they owed them-K. and B.-upon a fair settlement, and that the balance was struck in favor of Hendrick and Hungerford by mistake, and said note given. for it.

Plaintiff moved to strike out what Kirksey had said on cross examination, to which defendant objected. The Court sustained the motion, and defendant excepted. Defendant moved the Court to be allowed to amend and plead the amount due to Kirksey & Bower by Hendrick & Hungerford in off-set. Which the Court refused, and defendant excepted.

Defendant introduced Eugenius Douglass, who testified that he, as agent of Hendrick, to whom the assets of Iendrick and Hungerford had been turned over after dissoluticn, took the note which Kirksey made and delivered, and he knew the firm of Kirksey & Bower had been dissolved.

Breagan swore that the old firm of defendants was dissolved in December, 1851, and it was advertised and posted about Cuthbert; and Hendrick lived in and about Cuthbert all that time, and must have known it.

Defendants then requested the Court to charge the jury, in writing:

"That after dissolution, one partner cannot, by his separate acknowledgment, convert an open account into a liquidated demand so as to charge his former partner:

That after dissolution, one partner cannot, by his separate acknowledgment, convert an open account into a liquidated demand, so as to charge his former partner with interest:

That after dissolution, one partner cannot bind his former partner by a new contract, even though it be for an amount due by the partners before dissolution:

That after dissolution, one partner has no authority, from

Bower vs. Douglass, adm'r.

the mere fact that they had been partners, to charge his former partner by executing a sealed instrument în the name of the film; and if so executed by one partner, it does not bind him who did not execute it, unless expressly authorized.

All which charges, as requested, the Court refused to give, but charged the jury, that if they believed the instrument sued on was given on a settlement of accounts between the old firms of Kirksey & Bower and Hendrick & Hungerford, they must find for the plaintiff; and that they had no right to consider any mistake that had been made in the settlement, or any of the evidence ruled out.

To all which refusals to charge, and the charge given, defendant excepted; and on the several exceptions herein contained, assigns error.

I. E. BOWER, for plaintiff in error.

DOUGLASS & DOUGLASS, for defendant in error.

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

[1] The motion to dismiss the case was made before any proofs were submitted to the Court and jury, and was predicated on what appeared in the declaration. The note is a sealed note, and is signed with the firm name, but it does not appear by whom it was signed, whether by Kirksey or Bower; nor does it appear in the declaration that both partners were not present, assenting to it. We are of the opinion of the presiding Judge in the Court below, that the cause ought not to have been dismissed.

[2.] If, when a party to a suit is introduced as a witness on the trial, the party introduced has a right to testify in the cause generally, beyond the point to which he is introduced; or if he cannot testify but in explanation thereof, the pleadings ought to be such as to make the evidence admissible under hem. The defendant no where plead the non-existence

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