by the jury was to corroborate the testimony of this witness upon a material and disputed question in the case the plaintiff having testified that she was dragged to the justice's office, while several witnesses on the part of the defense testified that she resisted the of ficer and that she was carried to the justice's office in as careful a manner as possible. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99.

general rule that where a person procures the
issuance of a warrant, fair on its face, from
a judicial officer having jurisdiction to is-
sue it, such person procuring it is not liable
in an action for false imprisonment, even
though the issuance of such warrant was er-
roneous because of facts not disclosed; nor
would the party procuring it be liable in an
action of false imprisonment, even though the
warrant was procured maliciously, and with
out probable cause, although he might be
liable in an action for malicious prosecution.
7 Am. & Eng. Encyclop. Law, 680, 681; 1
Waterman, Trespass, § 293, 294, 306, 307.
Neither is a person making the complaint
liable in an action for false imprisonment if
he states the facts to the magistrate, even if
such facts do not authorize the issuance of the
warrant. If the magistrate puts a wrong
construction on such facts, mistaking the
law, no one is liable, unless the officer ex-
ceeds his authority and acts oppressively in
the execution of the process. Wheaton v.
Whittemore, 49 Mich. 348; Fenelon v. Butts,
49 Wis. 342; Von Latham v. Libby, 38 Barb.
339; Newman v. Davis, 58 Iowa, 447; Mur-tect them.
phy v. Walters, 34 Mich. 180; Cassier v. Fales,
139 Mass. 461; 7 Am. & Eng. Encyclop. Law,
681; Marks v. Townsend, 97 N. Y. 590; 1
Waterman, Trespass, $§ 293-307.

The case was submitted to the jury upon the theory that the writ of restitution was void, and that the justice and constable knew, or were bound to know, that it was void; that the procurement of the warrant of arrest and the service of it, though valid on its face, would not protect either Sullivan or Dana, under the circumstances of the case. This charge was misleading. The effect of the charge was to instruct the jury that, because the writ of restitution was invalid, the officer would not be justified in issuing and serving a valid warrant; that, as the first writ would not protect the officers, the warrant of arrest, though valid, would not pro

The

This action was brought to recover damages for an alleged unlawful arrest and assault and battery. No unlawful combination or conspiracy on the part of the defendOn the cross-examination of defendant ants is alleged or relied upon. It was not Sullivan, he was asked by plaintiff's counsel an action for malicious prosecution. if he did not have information by telegraph assault and battery charged grew out of the from Mrs. Marks' attorney, in the case of service of the warrant alone, and had no conTompkins v. Marks, to hold the writ of res- nection with the writ of restitution. The titution until he should receive a letter which principal question before the court was as to was on the road from the United States com- the validity of the warrant of arrest, and missioner who issued the writ, which ques- whether or not the defendants exceeded their tion was answered in the affirmative, under authority and committed an assault and batobjection and exception by defendant's at-tery in its execution. The warrant of arrest torney. I think this was error. Communications between the attorney for Mrs. Marks and the officer who held the writ against her in that case upon the subject named was foreign to the issue involved in the case on trial, where the officer was charged with assaulting Mrs. Marks by means of the service of a warrant upon her in another case, and must have had a tendency to prejudice the jury as against the other defendants, who knew nothing of that matter.

having been issued by the justice upon testimony that was satisfactory to him at the time, and in a matter over which he had jurisdiction, and being regular and valid on its face, was a sufficient protection to the officer, if he did not exceed his authority in its service. The question as to whether or not the testimony upon which the warrant was issued was true or false, or whether it was sufficiently strong upon which a conviction could be had, was not important. The Anna Marks, the plaintiff, was called by testimony satisfied the justice that an offense the plaintiffs, and gave testimony concerning had been committed, and that there was probthe arrest. Among other matters, she testi-able cause to believe that the defendant comfied under objection that, while being taken to the justice's office by the defendant, "an Irishman who was present said there were enough men to carry the poor woman. This ruling was excepted to. This statement as to what a bystander said is hearsay, and should not have been admitted. The effect of allowing this statement of a bystanderwho is not sworn as witness-to be considered 20 L. R. A.

mitted it.

The judgment of the court below is reversed and a new trial ordered.

Zane, Ch. J., and Bartch, J., concur in the conclusion reached in the opinion. Rehearing denied.

CALIFORNIA SUPREME COURT (In Banc).

William DE WITT, Impleaded, etc., Appt. ship of which defendant William was a mem

APPEAL by defendant, William De Witt, Encyclop. Law, 342; 1 Parsons, Notes & Bills,

|

his co-partner, it must be shown that the credit | ally; and a holding out to the world is not sufwas given in faith of the partnership. ficient. It must be to the plaintiffs.

Messrs. John K. Alexander and Dorn & Parker, for respondent:

Civ. Code, § 2431; Denithorne v. Hook, 112 2 Lawson, Rights, Rem. & Pr. § 642; Bowie Pa. 240, Brown v. Rains, 53 Iowa, 81; Thomp- | v. Maddox, 20 Ga. 285, 74 Am. Dec. 61; Prinson v. First Nat. Bank of Toledo, 111 U. S. 529, gle v. Leverich and Carter v. Whalley, supra; 28 L. ed. 507; 1 Collyer, Partn. 19; Dickinson Lindley, Partn. 2d Am. ed. § 43. v. Valp, 10 Barn. & C. 140; Wood v. Pennell, 51 Me. 52; Vice v. Anson, 7 Barn. & C. 409; Wright v. Powell, 8 Ala. 560; Pringle v. Leverich, 16 Jones & S. 90; Carter v. Whalley, 1 Barn. & Ad. 11; Vinson v. Beveridge, 3 McArth. 597, 36 Am. Rep. 113; Lanier v. Mc Cabe, 2 Fla. 32, 48 Am. Dec. 173.

There was no holding out by defendant William De Witt, and before he could be held liable to plaintiffs upon the note in question, there must be proof of such holding out by William De Witt that he was a partner, or proof that he was so held out with his knowledge, and that plaintiffs, at the time they sold the goods, knew of such holding out, and relied upon the same, and gave the credit upon the faith of such holding out to them, person

purchased on partnership account but for sheep that B. owned individually. Atwood v. Brooks (Tex. App.) April 23, 1890.

The acknowledgment of a debt by one partner will bind the other, but where the question is whether the partnership exists or not, the acknowledgment of one of the defendants is not evidence against the other. Corps v. Robinson, 2 Wash. C. C. 388.

In an action of assumpsit against two as partners they cannot show or prove by their declarations or the declarations of a third party that he was a partner. Such third party not being a party to the suit should have been produced as a witness, or the articles of partnership might have been produced. Sweeting v. Turner, 10 Johns. 216.

The declarations of one party that another is his partner, are incompetent evidence to establish the partnership, whether claimed to have been made while it was supposed to exist, or after dissolution. Flanagin v. Champion, 2 N. J. Eq. 51.

A person not in fact a partner cannot be made liable to third persons on the ground of having been held out as a partner, except on the principle of equitable estoppel, that he authorized himself to be so held out, and that credit was extended on faith of such partnership. Thompson v. First Nat. Bank of Toledo, 111 U. S. 529, 28 L. ed. 507.

William De Witt was not only a partner in fact, but was with his consent held out as a partner and is therefore liable as a partner.

Parsons, Partn. 2d ed. 63, 140; Osborne v. Brennan, 2 Nott & McC. L. 427, 10 Am. Dec. 614; Lindley, Partn. 42, 43.

As the goods purchased were applied to the use of the partnership, the firm is liable. Parsons, Partn. 2d ed. 144.

The signature of the firm name by the partner binds the firm, if the proceeds thereof are received and held by the firm.

1 Parsons, Notes & Bills, 124; Richardson v. French, 4 Met. 577, and cases cited.

As in this case George De Witt was to man

by their declarations that he was not a partner, as the same kind of evidence may be given for plaintiff as for the defendant. Nelson v. Lloyd, 9 Watts, 22.

The admissions of one party that others are his partners were received in evidence where four were sued, and no appearance was entered by P. or M. but T. and F. appeared and they alone pleaded. P. testified as to the partnership, and the court permitted evidence of declarations made by F. showing that the other three were his partners to be received. Taylor v. Henderson, 17 Serg. & R. 453.

Where a writteu partnership was formed under the name of Stewart & Co. and Stewart opened an account with plaintiff making statements to them that the goods were for J. Stewart & Co. of which firm he said the defendants were members, they were all liable even if some of the goods were for the private use of S. Hudson's Bay Co. v. Stewart, 6 Manitoba L. Rep. 8.

It is error to instruct a jury that if they find from all the evidence that the person denying the partnership is a partner, then the declarations of either partner will bind the firm. The jury should have been informed that it must be proved that S. was a partner by evidence independent of G's statements, and if so proved, then the declarations Where the partners notified their bankers of dis- of either partner in reference to the partnership solution, the fact that the continuing partner re-business would be binding on the firm. Bishop v. tained the firm name is not such a holding out of the retired partner as will make him liable for a debt contracted after dissolution with a person who had not dealt with the old firm, and had no knowledge of the dissolution, although he claimed that the firm bankers had said the retired member was in the firm. Re Fraser [1892] 2 Q. B. Div. 633.

The existence of a partnership may be proved by the separate admissions, acts, declarations, or conduct of all the members, but the declarations of one do not establish the partnership. Converse v. Shambaugh, 4 Neb. 376.

The declarations of a party to a suit that others are his partners are not competent to prove that fact, but are evidence to prove that he is a member. The objection that the declarations of the others should first be proved to charge them is not tenable as such objection would equally apply to such evidence. Edwards v. Tracy, 62 Pa. 374.

The declarations of two that another party is a partner are incompetent evidence against him, where all are sued and he puts the partnership in issue, but are competent, where he seeks to prove

Georgeson, 60 111. 484.

Where the existence of a partnership is the very issue which the jury are to try, and where the statements of one party that another is his partner are offered merely to prove such issue, it is improper to say that the court may decide the partnership has already been proved by other evidence, and then decide such statements are admissible to prove a partnership existed. If it existed the firm would be liable and the declarations would be irrelevant, if it did not exist the evidence would be incompetent. Gardner v. Northwestern Mfg. Co. 52 Ill. 367.

Declarations of one alleged partner are not evidence against the others as to the existence of the partnership. And if the existence of the partnership be the authority for its introduction, the fact must first be proved by independent evidence. If it be not so proved it stands as if no evidence were given of it, and if the fact be already established, it needs no corroboration. Wolle v. Brown, 4 Whart. 365.

The acts and declarations of a party in posses

age the business, and the expenses were to be to and used by him in carrying on a certain paid by him out of the proceeds of the busi-farming and threshing business, in which ness, and the net profits to be equally divided, business the respondents claim that the aphe was a partner of William De Witt, and, as pellant and the said George W. De Witt were such, the agent of the firm. in fact partners. The evidence further shows Quinn v. Quinn, 81 Cal. 14. that at the time the goods and merchandise were sold they were charged personally to George W. De Witt, and appellant was not at the time held out to respondents as a partner in the business referred to, nor did they know of the existence of the partnership now alleged.

DeHaven, J., delivered the opinion of

the court:

Action upon a promissory note. The trial was by a jury, and resulted in a verdict and judgment in favor of plaintiffs, and the defendaut William DeWitt appeals.

The note sued upon is signed, "Geo. & Wm. DeWitt," and was in fact so signed and delivered to plaintiffs by the defendant George W. De Witt. The appellant alleges in his answer that the note was executed without his knowledge and authority. The evidence upon the trial tended to show that the note was made by George W. De Witt in settlement of an account which the plaintiffs had against him for merchandise furnished

sion are admissible as explanatory of his possession but not to prove a partnership with a third party having no knowledge of such declarations. But they may be received to corroborate other evidence tending to prove a partnership. Central R. & Bkg. Co. v. Smith, 76 Ala. 572, 52 Am. Rep. 353. The declarations of one party that another is a partner are not competent to prove such partnership. They are relevant to corroborate or rebut other evidence tending to prove the existence or nonexistence of such a relationship. Humes v. O'Bryan, 74 Ala. 64.

Declarations of the existence of a partnership, made by one are evidence of the fact that he was a partner, and may be admitted in connection with declarations of the other defendant to the effect that he was a partner. Johnston v. Warden, 3 Watts, 101.

It will be seen from the foregoing statement that the right of the respondents to maintain this action against the appellant really turns upon the question whether he was in fact a partner of the defendant George W. De Witt in the business referred to, and upon this point the court instructed the jury, in substance, that, in order to constitute such partnership, there must have been an agreement between the appellant and hisco-defendant to carry on the business together, and to

If the partnership is duly proved the admissions and declarations of either partner would bind the firm, but such admissions are not sufficient to prove the existence of the firm as against the other party. Evans v. Corriell, 1 G. Greene, 25.

After prima facie evidence of a partnership had been given, the declarations of one to establish the fact that a partnership existed are incompetent evidence. Robbins v. Willard, 6 Pick. 464.

Declarations of one party are evidence against another alleged partner, where prima facie evidence of the partnership is first given. Allen v. Owens, 2 Speers, L. 170; Nicholls v. Dowding, 1 Stark. 81.

The admissions of one party are not evidence to establish the existence of the partnership: but after its existence has been otherwise proved, the declaration will bind all the parties. Hutchins v. To render competent declarations of one party Childress, 4 Stew. & P. (Ala.) 43; Cross v. Langley, against bis alleged partner, it is incumbent on the 50 Ala. 8; Rhodes v. Lowry, 54 Ala. 4; Clark v. Taycourt to determine whether there is prima facie | lor, 68 Ala. 453; Thornton v. Kerr, 6 Ala. 823; Faulkevidence of copartnership, and from his determi- ner v. Whitaker, 15 N. J. L. 438; McFayden v. Harnation on this preliminary question there is no ap-rington, 67 N. C. 29; Henry v. Willard, 73 N. C. 35: peal. Hilton v. McDowell, 87 N. C. 364.

It is only after the partnership is shown to exist by proof satisfactory to the judge, that the declarations of one of the parties is to be received in order to affect the others. McCutchin v. Bankston, 2 Kelly (Ga.) 244.

When a partnership is denied, the relation must be established by other evidence, than a note executed by another than the one attempted to be held. The admission of one cannot bind another, until it is shown that he has a right to thus speak. Byington v. Woody ard, 9 Iowa, 360.

In cases of partnership, the confession of one partner in relation to a partnership concern is ir general admissible in an action against the other. It is not evidence to prove the partnership, but that being proved, the confession is competent. Van Reimsdyk v. Kane, 1 Gall. 635.

Until the alleged partner is shown to be connected with the firm, any declarations made by the other members that he is a partner are incompetent evidence to prove the fact of partnership. Dutton v. Woodman, 9 Cush. 255, 57 Am. Dec. 46. Admissions of one person that another is his partner are not competent to prove a partnership, but where the existence of the partnership is distinctly proved by other evidence, such admissions are competent to show that the note sued on was given for the use of the firm. Lea v. Guice, 13 Smedes & M. 656.

Phillips v. Purington, 15 Me. 425.

The declarations of one party will not bind another party as partner unless a partnership is established by other evidence, or unless made with the knowledge of such party attempted to be held. Sankey v. Columbus Iron Works, 44 Ga. 228.

The statement of a party claiming to be a partner binds no one but himself, where the partnership is denied. But this rule has no application where there is testimony establishing the existence of the partnership. McCann v. McDonald, 7 Neb. 305.

A declaration made by one during an existing partnership as to matters transacted prior to the partnership is not evidence to bind the others. Catt v. Howard, 3 Stark. 3; 2 Starkie, Ev. 450.

Parties sued as partners cannot be permitted to prove the acts and declarations made by either party to disprove that they are partners. Clark v. Huffaker, 26 Mo. 264.

Dormant partners.

Where a party was a dormant partner but had quit the firm and no public notice was given, it was allowed to be proved that the other member had said he was a partner so as to charge him, although these declarations were made after the dormant partner had claimed to have left the firm. The defense then showed that the plaintiff knew at a certain date that the dormant partner had left, and as to accounts made prior that he had

divide the profits between them, and that the ing business would not make him a partner fact that appellant was to receive one half therein if the understanding and agreement of the net profits of the farming and thresh-between the parties was that he was to re

taken the sole bill of the other partner. This was held to be a discharge of the dormant partner. Evans v. Drummond, 4 Esp. 89.

missions of all, by the acts, declarations,and conduct of the parties, or by the act of one, the declaration of another, and the acknowledgment or consent of Declarations of third persons made to plaintiff a third. Barcroft v. Haworth, 29 Iowa, 462. in the absence of defendants are not evidence that The declarations of one that another is his partdefendants and such third parties are partners, but ner are not evidence of such partnership, although where evidence of the existence of the partnership such party may often have been in the shop, aphad been first given, then these declarations be-parently overseeing the work, advising and directcame relevant to prove that plaintiff had knowl-ing the workmen, where it is not shown that he edge that they were members of the firm. But in had knowledge of such declarations. Lincoln v. this case the exclusion was not error as the plaintiffs Craig, 16 R. I. 564. had information from the commercial agency before the debt was created that defendants had withdawn from the firm. Boyd v. Ricketts, 60 Miss. 62. A party cannot claim he was a dormant partner and therefore not liable, where his partner gave to the contracting party information of such partnership which was acted upon. Milmo Nat. Bank V. Carter (Tex. Civ. App.) Oct. 19, 1892.

After the defendants had proved that one N. was a dormant co-partner with the plaintiff in the work out of which the cause of action arose, it was then competent to give his admissions in relation to the partnership business in evidence against his copartners. Kaskaskia Bridge v. Shannon, 6 Ill. 15.

Estoppel.

A person who has allowed himself to be held out as a partner will be liable to another party on the declarations of one that the mine was being worked by a person of substance whose name he was not authorized to give. Naming was not necessary where he was described so clearly as to indicate who he was. Martyn v. Gray, 14 C. B. N. S. 824.

Knowledge or notice of a party being held out as a member of a firm must be brought home to him, of there must be such circumstances proved as will authorize the court to presume notice before he can be charged. Re Jewett, 15 Nat. Bankr. Reg.

126.

A statement made by a member of a firm to a traveling salesman that his father, who was present and within hearing, was also a partner, is suffigjent to support a judgment making the father lable as a member of the firm, although he testifed that he was not a member and had not heard such statements alleged to have been made in his presence. Davenport Woolen Mills Co. v. Neinstedt, 81 Iowa, 226.

Although declarations of one are incompetent to prove another is his partner, yet if made in the presence of such other as giving a receipt in the name of both for a partnership transaction where such other party was present, although he could not read or write, and it was claimed that prior thereto the partnership had been dissolved, such declarations are competent. Johnson v. Gallivan, 52 N. H. 143.

A declaration made by one 'in the presence of another, to the effect that such person is a partner of the former, which statement is not denied, is competent evidence to show that a partnership existed, although a third party contracting with the first party had no knowledge of any such statement. Giles v. Vandiver, 91 Ga.-.

In a suit against four alleged partners where three of them defaulted and the fourth denied that the partnership existed, the plaintiff was allowed to prove that a witness had communicated the alleged partnership agreement to said fourth party and at that time he had not denied it, and witness claimed it had been signed by all the defendants. A notice was given the defendants to produce the agreement, but it was not forthcoming. Thomas v. Harding, 8 Me. 417.

The declaration of one that others were his partners may be admitted in the line of estoppel to prove partnership, but unless supplemented by proof that such persons acquiesced in such declaration, a recovery on that ground could not be maintained. If such proof was not given the estoppel would not be proved, but while the evidence would be incomplete it would not be illegal. Rogers v. Murray, 110 N. Y. 658.

In order to create a liability by holding out a person as a partner who is not such, it must appear that he had knowledge or consented, and that the party crediting relied on his being a member of the firm. Seabury v. Bolles, 11 L. R. A. 136, 51 N. J. L. 103, 52 N. J. L. 413.

A party attempting to hold another liable as a member of a firm, on account of his having permitted another to make such declarations, when in fact no such partnership existed, must show that in his dealings he relied upon the existence of such partnership. Brown v. Grant, 39 Minn. 404.

A statement made by one party to the plaintiff that such party is partner with a third party, is competent evidence in an action against the first and third parties for goods sold where such third party does not deny receiving the goods, and similar statements made when plaintiff is not present are also competent as being admissions. Fleming v. Stearns, 79 Iowa, 256.

A statement by one that another is his partner is not binding on the latter where he has no knowledge of such statement being made. And a letter shown the contracting party written by the alleged partner, stating, "I have concluded to go on with the business," but referring to a supply contract, is not an estoppel, especially where the plaintiff applies to the mercantile agencies and finds nothing to show any alleged partnership, but that the defendant is conducting business in his own name. Morgan v. Farrel, 58 Conn. 413.

The defendant is not estopped from denying a partnership if the plaintiff has not been prejudiced by supposing that he was, by some act of the defendant or his failure to deny. Marble v. Lypes, 82 Ala. 322.

A partnership liability cannot be fastened on the defendant even if he was held out to the public or to plaintiff as a partner, unless it was done with his knowledge and consent. And no liability attaches if credit was not extended upon the faith that he was a partner, unless he was in fact. Levy v. Alexander (Ala.) Dec. 18, 1891.

Letters, circulars, and entries.

A copy of list of subscribers to a distillery company, when an application for a share had been made, and first deposit paid, but forfeiture had been made by the directors for not paying the second installment, is no evidence of partnership against such a subscriber where he had not taken any part. Fox v. Clifton, 6 Bing. 776.

The entry in the cash book of the partnership, whether made by one of the partners or by a clerk, is not competent evidence to prove that a partner

A partnership may be shown by the separate ad- ship existed. Robins v. Warde, 111 Mass. 244.