#### JAMES WILLIAMSON & CO. vs. WYATT CANADAY.

Where it appeared that A. B. and C. entered into a co-partnership in the name of A. & Co. for the purchase and sale of negroes, and it was afterwards agreed between them that A. and B. .should alone be interested in the negroes purchased with cash, but all three should be equally interested in the negroes purchased on a credit, it was held, that though C. might be held responsible on all contracts by third persons dealing with the firm of A: & Co., yet that he would be competent as a witness to testify for the firm in an action on the warranty of soundness contained in a bill of sale for a negro purchased in the name of the firm for cash.

This was an action of assumpsit, brought on a warranty of the soundness of a negro slave named Ephraim, contained in a bill of sale purporting lo have been executed by the defendant to James Williamson & Co.

Upon the trial, at Granville, on the last circuit, before his honor Judge Dick, the plaintiffs, for the purpose of proving the handwriting of the subscribing witness, who lived out of the State, called as a witness one Edmund Towns, who was examined as to his interest in this suit; whereupon he stated, that some short time previous to the execution of the bill of sale in question, James Williamson, William Towns and witness entered into a co-partnership, under the name of James Williamson & Co., for the purpose of buying and selling negroes; that it was agreed that each member of the firm should advance the sum of five thousand dollars by a certain time; that witness failed to advance his part of the capital by the time agreed on; whereupon it was agreed by Williamson and William Towns, and assented to by witness, that all the negroes purchased with cash, should belong exclusively to Williamson and William Towns, and that witness should have no interest in the negroes so purchased; but that in all the negroes purchased on credit, witness was to have an equal interest with Williamson and William Towns; that the boy Ephraim was purchased from the defendant with cash, and the witness had no interest in him; but that negroes were purchased on credit both before and afterwards, in which he did have an interest. Upon this statement, the defendant’s counsel insisted that the witness was a member of *114^ firm °f James Williamson & Co. at the time when the aforesaid bill of sale was executed, and was therefore incomPetent t0 prove its execution; of which opinion was his Hon-, or; and the plaintiffs thereupon submitted to a judgment of nonsuit and appealed.

W. A. Graham for the plaintiffs.

Badger for the defendant.

Ruffin, Chief Justice.

The reason why the witness might be regarded as a member of the firm, is, that it might be deceptive on persons dealing with it, if he were not so to be treated. Here are two firms of the same name; the one consisting of two persons; and the other of those same two and a third; and both doing business, it may be said, at the same place. In a case in which the question involved the interest of third persons, and was, whether this witness was chargeable to third persons on all the contracts made in the name of such a firm, the reason just mentioned would seem to be decisive for holding him liable; and that, whether he had in fact an interest in the subject of the particular contract or not, since he professed to have such interest, and induced others to think he had. But, in the case before us, the question is different. A creditoi- is not seeking to charge this person with a debt, or any liability on behalf of the partnership. The negro the defendant sold was paid for; and this is a suit against the vendor by the partnership; and the question is merely as to the competency of the witness. That depends, not upon the principle that a creditor of the firm might treat him as one liable for the debt — for that might be done, though this man had no interest; but it depends on the enquiry, whether in fact and law the witness has an interest in the subject of this suit, and can be affected by the verdict and judgment. Now, upon that point, and in this stage of the case, the statement of the witness must be received by the court as true; and that statement is, that, as between the parties themselves, this witness whs not a partner in this purchase, and has no interest in the matter. Consequently, it seems clear that he is a competent witness; and his evidence *115must be left to the jury, who will judge of his credibility upon this point, as upon every other.

Judgment reversed and venire de novo.

Per Curiam. Juigment reversed.