#### MILLER, RIPLEY & Co. vs. BENJAMIN RICHARDSON AND A. A. McDOWELL’S EX’ORS.

It is fraudulent to receive from one partner, for his own separate debt, the security of the firm, unless he has authority from the other partners to that effect, or unless the creditor has reasonable and probable canse, from the conduct of the firm, to believe that such authority has been given.

Where a jury are left in a reasonable and real doubt as to the credibility of a witness, they should disregard his testimony, and give such a verdict as they would have done, if he had not been a witness.

The case of *Colton*v *Evans,*I Dev. & Bat. Eq. 284-, cited and approved.

Appeal from the Superior Court- of Law of Rutherford county, at Fall Term, 1841, his Honor Judge Manly presiding.

This was an action of assumpsit. The facts of the case were, that on the 20th of March, 1832, A. A. McDowell, the testator of two of the defendants, became a partner with the defendants Richardson and others in a store in the county of Buncombe, which was under the general management of Richardson, and the firm was known as the firm of B. Richardson & Co. Before the 20th of March, 1832, *251Richardson had been engaged in merchandize, either by himself or in company with one Gray, and had contracted debts to a large amount in Charleston, South Carolina, in his own name and in the name of Richardson and Gray, and among others was indebted to the plaintiffs in the sum of six thousand dollars, or thereabouts. In the month of June, 1832, Richardson went to Charleston, leaving McDowell in Burke, and on the 19th of the month executed to the plaintiffs, for his own debt and the debt of Richardson and Gray, two promissory notes, the one for f>3,040 80 cts., payable one day alter date, and the other for g3,14T> 20 cts., payable six months after date, signed B. Richardson & Co. McDowell having died, the plaintiffs instituted this action against his executors and Richardson. There was no evidence of any assent on the part of McDowell or the other partners, to the transaction between the plaintiffs and Richardson in relation to his giving the notes in question, except the deposition of one William Spann, who deposed that he heard McDowell say on one occasion, when speaking of the partnership affairs, that himself and the other partners had authorized Richardson to take up debts of his (Richardson’s) in Charleston for the amount he and the other parties owed Richardson, being about $4,300. The character of the witness Spann was attacked by McDowell’s Executors, and several witnesses testified as to his general bad character. On the part of the plaintiffs several witnesses testified to his good character, and the defendants relied, and by their counsel commented, on various facts and circumstances growing out of the trial, to show that the witness had not deposed truly. The court charged the jury, that if the notes sued on were given for a pre-existent debt or debts of one of the partners, as to the others it was a fraud in law; but that this legal fraud might be rebutted, either by proof that Richardson was authorized, or that the plaintiffs had reason to think so. The court also charged that, if the witness Spann was believed, the plaintiffs were entitled to recover; but .that his credit was ' a matter for the sole consideration of the jury, that they were to weigh the testimony, and if their minds were left in a state of equilibrium, so that they could not tell how the *252matter then they ought to find for the defendants, Mc-®owe^’s Executors, so far as Spann’s testimony was concerned, for the plaintiffs ought to make out their case. The jury returned their verdict in favor of McDowell’s Executors and against Richardson. A new tried having been moved for and refused, and judgment being rendered pursuant to the verdict, the plaintiffs appealed.

*Badger*and *Bynum*for plaintiffs.

*Caldwell*for McDowell’s Executors,

Ruffin, C. J.

The Judgment in this case, must, we think, be affirmed. It is too late to question the general proposition first stated by his Honor, that it is fraudulent to take from one partner, for the separate debt of that partner, a security of the firm, unless there be evidence of an author* ity from the other partners to give the security, or that the creditor had reasonable and probable cause, from the course of dealing of the parties or the like, to believe that such authority had been given. To that extent the majority of the court thought themselves bound to go in *Cotton v Evans,*1 *Dev. &*Bat. Eq. 284; and, even in that, one of the court thought we were going too far, and that, however honest the intention of the creditor might be, he could not enforce the security of the firm, without establishing a previous express authority, or a subsequent assent of the other partners. A broader doctrine, then, than was held in *Cotton*v *Evans*in favor of. the creditor cannot be admitted; and, without doing so, the judgment in favor of the defendants cannot be disturbed; for the case states there was *no*evidence of an assent by McDowell, but the testimony of the witness Spann and the jury were told, if they believed him, to find for the plaintiff.

, Whether this last position as to the effect of, Spann’s testimony be correct or not, we do not stop to consider, inasmuch as it was in favor of the plaintiff, who is the appellant, and, therefore, is not open to re-examination. As the jury did not believe the witness, the plaintiff’s case was without evidence, and the verdict was properly rendered; unless the *253judge erred in his subseqitent observations to the jury upon the effect they should give to the evidence offered, and the1 circumstances relied on, for the purpose of discrediting the witness. We are not, sure that we entirely apprehend the meaning of his Honor, as the statement in the record is not expressed with his usual perspicuity. But as understood by us, we agree to the directions. It is to be recollected, that it is before stated, that there was no evidence to charge McDowell but that of Spann; and that many witnesses had been called to impeach and sustain his credibility, and various other circumstances, arising out of the trial, were also relied on by counsel in the argument, and that all these things were left to the jury to be weighed by them, as their exclusive province. Thereupon the judge told them that if they believed Spann, they should find for the plaintiff; but, if they disbelieved him, then, of course, they should find for McDowell. There was, however, a third case, which might happen, namely, that after weighing the evidence for and against Spann’s credit, the jury might not be able to determine, in their own minds, which preponderated, or to say whether or not he was entitled to credit; and, in that event, the judge delivered his opinion to the jury, that, so far as concerned Spann’s testimony, they should find for the defendant, if their minds were in a state of equilibrium, so that they could not tell how the matter was, that is to say, whether that witness was to be believed or not. We imagine that the case supposed will seldom occur, and that juries are not often so absolutely undetermined upon the credibility of a witness, as not to be able to say one way or the other. But if such occurrence should happen, we are not prepared to say that the rule laid down by his Honor is wrong, but we rather concur in it. For if' the point, to which a witness is called, be essential to the party, it behooves him to establish it by a witness whom the jury do believe; otherwise he does not establish it at all. Consequently, if the jury be left in a state of reasonable and real doubt and uncertainty as to the credibility of the witness, they cannot, with safety, found a verdict on his testimony, but must give the verdict they would, if his testimony was struck out.

Per Curiam, • Judgment affirmed.