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Schimmelpennick v. Turner, 6 Peters, 1.
7 Peters, 596..
Sicard's Lessee v. Cecil, 6 Peters, 124.
Davis, 6 Peters, 124.
Thompson (Magniac v.) 7 Peters, 348.
Trout (Holmes v.) 7 Peters, 171
United States v.) 7 Peters, 132...
-442 148 541
1 .427 545
Union Bank of Georgetown v. Magruder, 7 Peters, 287.....
(Barlow v.) 7 Peters, 404.
7 Peters, 1.
v. Wilson, 7 Peters, 150.
Dunn, 6 Peters, 51..
491 315 522 440
83 .602 535 541 · 386
291 .376 · 174
68 .. 393 •375 · 189
143 • 382 .458
12 .427 .435
11 . 104
SUPREME COURT OF THE UNITED STATES.
JANUARY TERM, 1832.
JUDGES DURING THE TIME OF THESE REPORTS.
Hon. JOHN MARSHALL, CHIEF JUSTICE.
GERRET SCHIMMELPENNICK AND ADRIAN TOE LAER, trading under
the firm of R. and J. R. Van Staphorst, v. Josiah AND PHILIP TURNER.
6 P. 1. In a writ of capias, by which an action was commenced, the two defendants were described
as merchants, and surviving partners of a firm; in the first count of the declaration a promise by them, as surviving partners, was alleged; in the second count the promise declared on was by “the said defendants; - Held, that evidence of a promise, made after the death of the deceased partner, was admissible under the second count.
*The case is stated in the opinion of the court; but it [ 2 ] should be added that in the circuit court the plaintiffs, on the 29th of April, 1825, sued out a writ of capias ad respondendum, in an
'Mr. JUSTICE JOHNSON was prevented attending the court during the whole term, by severe and continued indisposition. VOL. X.
Schimmelpennick v. Turner. 6 P. action of assumpsit, against “ Josiah Turner, and Philip Turner, surviving partners of William Turner, citizens of Maryland, merchants."
Stewart, for the plaintiffs.
N. Williams, for the defendants.
[ 5 ] THOMPSON, J., delivered the opinion of the court.
This case comes up from the circuit court for the district of Maryland, upon a division of opinion in that court upon a point stated on the record in the following manner, namely: And thereupon the defendants, to maintain the issue on their part, gave in evidence to the jury, that William Turner, the person mentioned in the declaration in this cause, died on the 6th of January, 1819. That the said William was formerly a partner with the said Josiah and Philip, under the firm of Josiah Turner and Company, but that the said copartnership was dissolved in October, 1817, and that a new copartnership was formed between the said Josiah and Philip in 1820, under the firm of Josiah Turner and Company.
Whereupon, the defendants, by their counsel, prayed the [ *6 ] *opinion of the court, and their direction to the jury, that
the plaintiffs are not entitled to recover, because the defendants are sued as surviving partners of William Turner, whereas the proof is, that William Turner had departed this life some months before the first transaction took place between the plaintiffs and defendants, and, therefore, could not constitute one of the firm of the defendants at any time during the transaction in question, and that, therefore, there is a variance between the contract declared on, and the contract given in evidence. Upon which prayer the opinions of the judges were opposed.
The declaration contains two counts. The first, setting out the cause of action, states as follows: for that whereas the said defendants, merchants and copartners, trading under the firm of Josiah Turner and Company, in the lifetime of said William, on the 1st day of March, in the year 1821, were indebted to the plaintiffs, &c., and being so indebted, the defendants undertook and promised to pay, &c. The second count is upon an insimul computassent, and begins: whereas also the said defendants afterwards, to wit: on the day and year aforesaid, accounted with the said plaintiffs, of and concerning divers other sums of money, due and owing from the said defendants, and then in arrear and unpaid, and being so found in arrear, the defendants promised to pay, &c.
Whatever objection may arise under the first count in the declara