J;l$Id thatitJvAi not shown that the foreigQ, corporation sued ip 9hiohadexercised franchises in that state, or placed itselfor its busiJVithin that state sO,as1o be found there. I am of opinion that the tp, set aside thesl;1e;riff's return' mut't be granted.
(ctrcttf,t OO'Urt of AppeaZ" Eighth O£rcuit.
May 9, 1899.)
PUT.NII'BSRIP--U/lB ,OJ' NAMB-NOTICH-AGENTS.
In !IJlILlltion,against two defendants as partners, trading as "R. & Co., Wit apdefendant R. allowed the useClf l:).is name because the other defendant was:una\:lle to obtain a license to carryon business, that R. had no interest whatever in tl,J.ll bnsiness, and druJ;Ilmer, when he sold the goods whose price was sued for. was informed of,'this 1$"t. The note sued on, signed "R. & Co. "by the other defendant; was given to another agent of plaintiffs. Held, that it ,was ,proper to d.irect a verdict for for notice to the drummer that be was not in fact a partner was notice to ptatntmll.
WILLlS V. 'ltECTOR.
told Smith that he was not a partner of Ryan, and had no interest in his business; he (Smith) gave Rector a hat to persuade C. T. Ryan to order the merchandise, which witness did do. At the close of the defendants' testimony the plaintiffs called the defendant Ryan as a witness, who testified that he was unable to procure license and do business in his own name in the year 1884, and that J. H. Rector, the defendant, authorized witness to run the business in his name, which he did do; that J. H. Rector was a partner in name only, and had no actual or real interest in the business; that witness bought goods of plaintiffs, Willis & Bro., and executed the note sued on to Willis, in name of Rector & Co.; that when the goods were purchased through Mr. Smith, as drummer of plaintiffs, Smith was told and fully advised that J. H. Rector, the defendant, had no interest in the business; that after this time witness, C. T. Ryan, on, to wit, July 22, 1884, executed and delivered to another and different agent of plaintiffs the note sued on. This being testimony in the case, the court directed the jury to return a verdi.ct, for the defendant Rector, and this direction oithe court is assigned for error. There was no conflict in the testimony. 'The defendant Rector, who testified in his own behalf, and the defendant Ryan, who was called as a witness by the plaintiffs, agree perfectly in their testimony and testify to the same state of facts. Upon this uncontradicted evidence the court rightly instructed the jury to find a verdict for the defendant Rector. Notice given to an agent while acting in the agency is notice to the prindpa!. The plaintiffs' agent, Smith, who sold the merchandise for which the note sued on was give,n, was told before and at the time he sold the goods to Ryan that Rector was not a partner of Ryan, and had no interest in the business, but that the name of Rector & Co. had been assumed by the defendant Ryan because he could not procure a license to conduct the business in his own name. One who holds himself out to the world. as a partner is liable as such, although he in fact does not participate in the profits and losses; but where there 'is a stipulation between two or more persons who hold out to the world as partners that one of them shall not have any share in the profits nor pay any portion of the losses, he is not liable to the creditor of the firm who before giving credit knew of this stipulation, because such creditor has no right to fix upon him a responsibility against his bargain and intention, when such bargain and intention were known to the creditor belore he extended the credit. Pars. Cont. 193, and note g; Alderson v. POJies, 1 Camp. 404, note. See Thompson v. Bank, 111 U. S. 529, 4 Sup. Ct. Rep. 689. Judgment .affirmed.
'h'(otreuU Own o/:'&PP6az,! Eighth Circuit. Hay 10. I . )
JVherethecharge to the jury contains a series of proposition.,. single exeeptloll thereto,til gross cannot be sustained If any proposition is sound, and the appellate will not;. on such an. exception, tilquue whether any part of the charge .. erroneous. ",An,.aB81gnment of error in 'giving instJ'U(ltionl will not be ooD8idered where it. fail,.Wcomply with Cir.Ct. App. Rule 24, 47 Fed. Rep. xi., prescribing that, "when ,t,he e)'l'Ql' i. to the' oharge of the court, tbe specification sballset out the part,referred w tnCotidem llerbtl, whether it be tilinstructionl given or in instruotione refulled. " ' Wbere one of a series of prepositions preferred as one request to charge ts un, .oun4,ao; exception to a refusal to oharge the whole series Qallnot be sustained. a thtrdperson title to chattels seized under exeout!!lu, a bill of sale exeduted by defendant to a 8trangerafter tbe alleged sale to the'Cll&imanUI admla.. ible as bearing on the bona fides 01 the sjUe to tbe claimant.
J'qR NEW TRIAL.
... ll::UOl]'l.\I0:li,.-CL.\Il\lS BY THIRD
G. ,ApPBAY-"SSIGNMENT 01!'
Blbce a motion for a neW trial is, under the federal practice, addressed to the di.. of the trial court, and no error "an. be. assigned to the ruling thereon, such motion wiU not be considered in aid ot an insuftlcient assignment of errors.
8. CIR'CUI'l' 'COURT 01' ApPB.u.s.:-:FoLLOWING STATB PRACTICB.
Though thepraetice acto' Arkansas, regulating the practice of state oourts of original jurisdictioll,la obligatory on tlle federal courts beld III that state alld in . the Indian Territory, the rules ofrractice of the supreme court of that; state are .; not piq.optedoy the circuit oourt 0 appeals bl oases oomingfrom e!t;her the state 01' the.
In Error to the United States Court in the IlldianTerritory. This was an issue as t6,the right to property levied on by Henry C. Pyeatt JUld James C. Kirby ullder an execution against William P. MOo Clellan, and claimed by Oharles M. McClellan. The issue was found for plaintifis, and judgment rimdflred against Charles McClellan and D. W. Lipe,. the surety on bis bond, and they bring error. Affirmed. ]'or decision on motion to dismiss the writ of error and vacate the aupt:r8edeas,see 49 Fed. GeCirge E. NeJ,8dn and Wm. M. OraveTl8, for plaintiffs in error. i·John H. Roger8, for deftlndants inarror. ,Before CALDWELL and SANBORN, Circuit Judges, and SumAS, District . CALDWELL, Circuit The, defendants in error on the 3d day of October, 1889, recovered a judgment in the United States court for the Indian Territory against William P. McClellan for the 'sum' of $7,598.07. upon which execution was issued on the next day, and was levied by the marshal on the 5th day of October on certain cattle and horses, as the property of the defendant in the execution. The property so levied upon was claimed by Charles M. McClellan, who executed a bond conditioned as required by section 3042, Mansf. Dig. Ark.;with the defendant Lipe as his surety. Thereupon the plaintiff gave notice, as provided by section 3045 of the same digest, and the trial of the right to