Hopkins v. Kent

Bajrtol, I., delivered the opinion of this court: The cause of action in this case is a promissory note, drawn by E. C. Leitch & Co., in favor of Sewell, Januey & Owens, and endorsed to the plaintiffs. The suit was instituted, against, Leonard C. Leitch and Daniel Kent, the former of whom was returned “non estP The defendant, Kent, pleaded in abatement the non-joinder of a certain Richard G. Mackall, wlio, it is alleged, was one of the partners of the firm of L. C. Leitch & Co. At the trial, evidence was produced tending to prove that Leitch and the defendant were partners, constituting the firm, and also some evidence lending to prove that Richard G. Mackall was also a partner of the firm. Upon this evidence the court, at the instance of the defendant, instructed the jury “that if, from the evidence, they believed that Richard G. Mackall was a member of the firm of Leonard C. Leitch ¿L Co., at the time of the execution of the note in this suit, then the jury should find for the defendant under the issue.” ⁷⁴ (Decided March 26th, 1861.) And the plaintiffs asked the following instruction: “That unless the jury shall find, from the evidence, that Richard G. ■Mackall was an actual partner of the firm of L. O. Leitch &• Go., at the time the note sued upon was executed, the plaintiffs are entitled to recover upon the present issue. [That evidence that the said Mackall was a