Harris and Pease, for the appellant.

Munger, for the appellee.

By Court, WHEELER, J. The affidavit of the appellant is regarded as having sufficiently accounted for the delay in filing the record; and it was so considered and determined by the court at the last term. It therefore only remains to determine whether the appeal ought to be dismissed for the want of a sufficient appeal bond. It is believed to be the settled practice, to hold it within the discretion of the court, to refuse to dismiss an appeal on account of the mere informality or insufficiency of the appeal bond, where the appellant will immediately give a good and sufficient bond. And it was so held by the supreme court of the republic, in the case of Crosby v. Huston, 1 Tex. 203. We see no objection to the exercise of this discretion. The constitution guarantees the right of appeal. The laws, regulating the exercise of the right, are intended to afford the party every possible facility in its furtherance, consistent with a due regard to the rights of the opposite party; and they should be so construed, as most certainly and effectually to attain this object. It is difficult to conceive of any just cause, which the appellant can have, to complain, when he has already been secured by a sufficient bond. His security, in this respect, would seem to be his only proper concern. To dismiss the appeal for the want of a sufficient bond, when one amply sufficient has been given, would be to drive a party to his writ of error, and thus to increase the delay and expense of litigation, without securing any ultimate advantage to the party.

The objection to the bond, for the want of the signature of the appellant, can not be maintained. It was not necessary that the principal should have signed; the execution of the bond by the sureties was sufficient; the principal being as effectually bound by the judgment, without signing the bond, as he could have been by it. This has been repeatedly decided: Anonymous, Hard. 149; Harrison v. Bank of Kentucky, 3 J. J. Marsh. 376; Thom v. Savage, 1 Blackf. 51.

We are of opinion that the motion to dismiss be overruled. Ordered accordingly.

SIGNATURE OF OBLIGOR IS NOT ESSENTIAL TO VALIDITY OF APPEAL BOND duly sealed by him: Parks v. Haglerigg, 43 Am. Dec. 106. The principal case is cited to the point that an appeal bond need not be signed by the ap pellant, in Lindsay v. Price, 33 Tex. 280.

OBJECTION THAT APPEAL BOND WAS NOT ACKNOWLEDGED before an author. ized officer, being merely technical, the court will retain the appeal and per

mit the bond to be properly acknowledged, upon the usual terms, if a dismissal would sacrifice any substantial right of the appellant; but not where the appeal itself rests upon merely technical grounds: Ridabock v. Levy, 35 Am. Dec. 682. And see Harper v. Archer, 43 Id. 472. The principal case is cited to the point that an appeal will not be dismissed merely for informality or insufficiency in the bond, if the appellant will immediately cure the defect by giving a sufficient bond, in Berry v. Martin, 6 Tex. 264; and to the point that where an appeal bond was for too small an amount, the appellant will be permitted to file a new bond, in Scranton v. Bell, 35 Id. 415; and Hollis v. Border, 10 Id. 279.

CROZIER ET AL. V. KIRKER.

[4 TEXAS, 252.]

STATUTE PROVIDING THAT WHERE PARTY WILL MAKE OATH THAT HE HAS NO OTHER EVIDENCE than his own oath to establish a material fact he may testify himself touching such fact, contemplates that the party proposing to testify in his own case shall, in his preliminary examination touching his right to do so, state the fact or facts to which he proposes to testify.

IN ALL CONTRACTS CONCERNING NEGOTIABLE PAPER, ACT OF ONE PARTNER binds all, even though he sign his individual name, if it appear on the face of the paper to be on partnership account, and to be intended to have a joint operation.

INSTRUCTION IS ERRONEOUS WHICH ASSUMES FACT TO BE PROVEN instead of leaving it to the jury.

PERSON HOLDING HIMSELF OUT AS PARTNER, though in fact no partnership exists, is liable to a creditor who contracts with the firm.

EVERY PARTNER HAS IMPLIED AUTHORITY TO BIND HIS COPARTNER by the making of notes and the drawing and accepting of bills for commercial purposes consistent with the object of the partnership; and to rebut this presumption of authority, there must be proof of fraud, or a knowledge of the want of authority, or notice to the party seeking to charge the firm that the other partners would not be responsible for the acts of their copartners.

ACTION on a promissory note payable to plaintiffs and signed "J. Lombardo & John Kirker." Lombardo admitted the making of the note by him, and that it was made on the partnership account. It was proved that Lombardo & Kirker were partners, at and prior to the time of the making of the note, in the retail of spirituous liquors. About a week after the making of the note, Lombardo went down westward, with an adventure of merchandise, and Kirker told one of the witnesses, at the time, that he and Lombardo were partners in that adventure also. Kirker swore that he did not authorize Lombardo to make the note; that it was given for liquors and goods which Lombardo

had taken down westward; and that he, Kirker, was not in partnership in that adventure. The court refused to give the first and second instructions of plaintiffs, viz.: “1. That the partnership name may consist of the persons composing the firm; and in the absence of proof of a particular name, the names of both, signed by either, would be prima facie binding on both, if a partnership be proved." "2. That if the jury found from the evidence that Lombardo and Kirker were partners, then either could sign the name of both to a promissory note, and it lies upon the one claiming not to be bound to show that the note was not given for partnership purposes, and that the person to whom the note was given knew it, or had cause to suspect it." Judgment for defendant; plaintiffs appealed. The other facts in the case sufficiently appear from the opinion.

O. C. Hartley, for the appellants.

J. B. Jones, for the appellee.

By Court, WHEELER, J. In the decision of this case, it becomes material to consider the rulings of the court: 1. In admitting the defendant Kirker to testify; 2. In the instructions to the jury; and, 3. In refusing a new trial.

1. The first question, here presented, must be determined by a reference to the fifty-seventh section of the act to regulate proceedings in the district court. This section was intended to provide for a class of dealing, so trivial in amount as not to justify, in all cases, the obtaining of formal proofs. It provides, that where the party will make oath that he has no other evidence, than his own oath, to establish a material fact, he may himself testify touching such fact. This innovation upon the common-law rules of evidence, was introduced from the supposed necessity of the case, and is allowed where there is a destitution of other means of proof; but it is not to be extended beyond the express enactment. This evidently contemplates, that the party proposing to testify in his own case, shall in his preliminary examination touching his right to do so, state the fact, or facts, to which he proposes to testify. He is not to be allowed to testify generally, but only as to such facts as he may be unable to prove by other evidence. This is the evident meaning of the statute; and it was not admissible to extend its operation beyond the obvious import of its terms. The court, therefore, erred in not requiring the party to state the facts, touching which he proposed to testify, and in not confining his testimony to those facts. But the party was not only permitted

to testify generally, but when it was objected, that he was speaking as to facts which, it was apparent, he could prove by other evidence, the court still refused to arrest his testimony, and ruled, that "the jury should decide whether he swore to any fact which he could prove by anybody else, and if so, they should reject so much of his testimony." This, it would seem, was to submit to the jury, a difficult inquiry; for it is not easy to perceive, how they could know whether or not the party could prove the same facts by other evidence. It was at least an inquiry which it did not belong to them to determine.

2. As to the rulings of the court respecting instructions to the jury. The first branch of the instruction given, that is, "that in order to bind all the partners, the note given in evidence must be signed with the partnership name and style," is erroneous. On the contrary, in all contracts concerning negotiable paper, the act of one partner binds all, even though he signs his individual name, if it appear on the face of the paper, to be on partnership account, and to be intended to have a joint operation; and the holder may, at his election, enforce payment either jointly, against the firm, or separately, against the party whose signature is attached: Gow on Part. 39; 3 Kent's Com. 41; Doty v. Bates, 11 Johus. 544; Hunt v. Adams, 6 Mass. 519. Here one partner had signed the names of both, and there could be no doubt, from the face of the paper, that it was intended to have a joint operation. The instruction, therefore, was not only erroneous, as a legal principle, but it was so, especially, in its application to the case in evidence.

The remaining branch of the instruction, viz., "that a limited partnership in the bar-room did not authorize either to charge the other for goods not in the nature of the partnership business," is erroneous in two respects: 1. It assumes the fact to have been proved, instead of leaving it to the jury to find the fact from the evidence: Cobb v. Beall, 1 Tex. 342; Lightburn v. Cooper, 1 Dana, 273. 2. It was not proved as assumed, that the partnership was "limited" to the bar-room; but, on the contrary, there was evidence that the defendants were also partners in the "adventure down west," in the furtherance of which, the note in suit, was given.

The first proposition asked by the plaintiffs, as an instruction, was clearly correct, and ought to have been given. It is diffi cult to conceive upon what ground it was refused. It was not only correct in the abstract, but it was a proper instruction to have been given in this case. There had been no proof that this

firm was known by any particular name. They had signed and used the name of "J. Lombardo & Co.," but whether on more than one occasion, does not appear, nor does it appear that that was the name by which they were accustomed to act and contract, or by which they were known.

The second and third propositions, asked as instructions, by the plaintiffs, are correct, with the qualification that it be understood, as it doubtless was supposed to be, that the making of the note referred to, was within the scope of the partnership, or that it was given in a partnership transaction; and this ought, perhaps, to have been expressed.

3. As to the ruling of the court, in refusing a new trial. This was asked on various grounds, but it will only be necessary to consider that which relates to the finding of the jury upon the evidence. It was proved that the note sued on was given in a partnership transaction; the adventure in which the defendant Kirker had admitted that he was a partner. The only evidence relied on to discharge the defendant Kirker from liability upon the note was his own testimony, that he did not authorize Lombardo to make the note, and that he, Kirker, was not a partner in the adventure. It may be true, that Kirker did not expressly authorize Lombardo to make this note; but it is certainly true, that he held himself out to third persons as a partner in the transaction in which it was given. He so stated to the witness. And this was an implied authority to Lombardo, his ostensible partner, to use his name, and as to third persons was binding upon him, whatever may have been the private understanding between the partners. If a person hold himself out as a partner, though in point of fact no partnership exists, he is liable to a creditor who contracts with the firm: Comyns on Con. 481; 3 Kent's Com. 41.

Where (says Starkie) two or more unite in partnership for tarrying on a particular trade, or other purpose, they become, in point of law, so identified with each other that the acts and admissions of any one, with reference to the common object, are the acts and declarations of all, and are binding upon all. The very constitution of this relationship furnishes a presumption that each individual partner is an authorized agent for the rest: 2 Stark. Ev. 582. And the acts and representations of parties may be conclusive evidence of their partnership in favor of strangers who are not cognizant of their private arrangements, but who must be guided by external indications, although as between themselves they are not partners: Id. 583. Hence,