Walker v. Marshall. heirs at law of Garnett Neely, deceased, and a Sheriff's sale and deed to him as the purchaser. The defendant contended, that there was no proper and legal execution, under which the Sheriff could have sold the land; and of this opinion was the Court, and judgment was rendered for the defendant, wherefrom the plaintiff appealed. Garnett Neely had entered into a bond, in a penalty of $2,000, to perform certain covenants mentioned in the condition of the same. P. M. McMany, administrator of William Stewart deceased, brought suit on the bond, against the administrators of G. Neely, in Caswell County Court, and at October Sessions, 1841, obtained judgment for the penalty ($2,000.) The sum of $395 44 was assessed as damages by the jury for a breach of the conditions of the bond, with interest from the 1st day of July, 1841, until paid; and there was judgment accordingly, and also for his costs, to be taxed by the Clerk. The plea of "fully administered,” had been found by the jury in favor of the defendants. A scire facias was then issued, at the instance of the plaintiff, against the heirsat law of G. Neely to show cause, why McMany, administrator, &c., should not have judgment and execution against them as heirs at law of G. Neely, deceased, for the aforesaid debt and costs. The judgment, as above stated, was recited in the scire facias. At April Sessions, 1842, there was judgment for the plaintiff according to sci. fa. whereupon a fi. fa. issued to the Sheriff of Person, against "the goods and chattels, lands and tenements of Calvin Neely and John Marshall and his wife, and Nicy Neely, heirs at law of G. Neely deceased," to satisfy the sum of $395 44, with interest from April Court, 1842, until paid, and for the costs. The Sheriff, returned on this execution a levy on the premises in dispute in this action, as belonging to the heirs of Garnett Neely, deceased. Whereupon a venditioni exponas issued, and, at a sale under it, the lessor of the plaintiff became the Walker v. Marshall. purchaser of the land now in controversy, and the Sheriff executed to him a deed. Kerr, for the plaintiff. Norwood, for the defendant. DANIEL, J. The defendant insist that there never was any such judgment as that recited in the fi. fa. and venditioni, and that therefore, the said executions were void in law. The judgment on the sci. fa. against the heirs by default, at April term, 1842, was, that the lands descended from their ancestor to them are condemned to the satisfaction of the judgment recited in the sci. fa. which was for $2,000, to be discharged by force of the statute by the payment of the damages assessed by the jury for the breach of the conditions of the bond. Revised Statutes, Ch. 31, Sec. 63. There never was a judgment against the heirs of G. Neely, for the sums mentioned in the fi. fa. and venditioni, under which the land was levied on and sold to the lessor of the plaintiff; the judgment having been for $2,000, and the executions being for $395 44, the damages assessed for the breach. Besides, the judgment was against the lands descended, and the executions were against the goods and chattels, lands and tenements of the heirs themselves. The judgment was, thus, against the assets of the ancestor in the hands of the heirs, while the execution was de bonis propriis of the heirs. Those variances between the judgment and executions are fatal to the plaintiff's title; and the judgment must be affirmed. PER CURIAM. Judgment affirmed. DICKSON AND MABRY vs. THOMAS H. ALEXANDER & AL. If one partner purchase goods, ostensibly for the firm, but in truth for himself, the firm is bound in the same manner as it would be, if the partner had borrowed money for the firm and misapplied it. The case of Wharton v. Woodburn, 4 Dev. and Bat. 507, cited and approved. Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term, 1846, his Honor Judge PEARSON presiding. The action is assumpsit for goods sold and delivered, and was tried on the general issue. The facts were, that the defendants, Thomas H. Alexander, Joseph Alexander, and Abner Alexander, entered into partnership in a fishery in Tyrrell County; and, by the agreement, each of them was to furnish certain things, needful to the prosecution of the business, as parts of his stock therein. The plaintiffs were merchants in Virginia, with whom the defen dants had not before dealt, and who had no knowledge of the particular stipulation between the defendants just mentioned. In order to procure some of the articles, which Thomas H. Alexander was to supply, he ordered them from the plaintiffs in the name of the firm, and the plaintiffs filled the order to the value of $274 65; and they charged the goods to the firm, and forwarded them, and they came to the use of the firm. The question upon the trial was, whether the defendants, Joseph and Abner, were liable to the plaintiffs. The Court held that they were; and from a judgment against them, they appealed. A. Moore, for the plaintiffs. RUFFIN, C. J. The opinion of his Honor is sustained by the direct authority of Wharton v. Woodburn, 4 Dev. and Bat. 507. It is there laid down, in conformity with settled principles, that if one of the partners purchase goods ostensibly for the firm, but in truth for himself, the Meredith v. Andres. firm is bound in the same manner as it would be, if the partner had borrowed money for the firm, and misapplied it. If it were not so, there would be no security in dealing with partnerships. How could these plaintiffs know, that Thomas H. Alexander, was breaking his contract with the other parties, and was not buying for the firm, when he said that he was, and purchased in their name? It is a question of loss, between innocent persons; and it is plain, which of them should bear it. His co-partners trusted Thomas H. Alexander; but the plaintiffs did not. They trusted the firm, upon an application in the name of the firm; and they have a right to look to every member of it for their debt. PER CURIAM, Judgment affirmed. DEN ON DEMISE OF JAMES MEREDITH vs. TIMOTHY ANDRES.. When one of two tenants in common of a tract of land is in possession of the tract, and his co-tenant makes a demand of the whole tract, his refusal to comply with that demand is not to be considered as evidence of an ouster of his co-tenant. More especially is this the case when the demand is made by one professing to claim under the co-tenant, but of whose title the tenant in possession knows nothing. Nor, when the person so claiming enters into possession and is turned out by a writ of forcible entry and detainer, can this be considered an ouster of the co-tenant. Appeal from the Superior Court of Law of Bladen County, at the Fall Term, 1846, his Honor Judge SETTLE, presiding. Upon the trial of this ejectment, a title was established in the lessor of the plaintiff to an undivided moiety of the premises as a tenant in common with the defendant. Meredith v. Andres. It was thus derived: John Andres died seised in fee, and from him the land descended equally to the present defendant, and one Elizabeth Locke; and the latter devised her share to the plaintiff's lessor. The defendant was in possession of the premises; and the plaintiff alleged, that he had actually ousted Meredith before this action was brought. In order to estab lish such an ouster, the plaintiff gave in evidence, that a person, who claimed to be a tenant under the lessor of the plaintiff, took possession of the tract of land, and the defendant proceeded against that person under the Statute, as for a forcible entry and detainer, and he was turned out and the defendant restored to the possession. The plaintiff further gave in evidence, that his lessor demanded the possession of the premises from the defendant, and that the defendant refused to admit him; and the witnesses stated that the demand was an unqualified demand of the possession, the lessor of the plaintiff not claiming a share of the premises, nor alleging that he wished to be admitted into the possession with the defendant, as a tenant in common. The counsel for the defendant insisted, that there was not evidence upon which the jury could find an ouster, and moved the Court so to instruct them. But his Honor refused the motion, and held that the jury might infer the ousters from the evidence; and after a verdict and judgment for the plaintiff, the defendant appealed. Reid, for the plaintiff. RUFFIN, C. J. The Court cannot concur in the opinion of his Honor. It will be perceived, that there are no dates set forth in the case, nor any great length of possession by the defendant, nor any knowledge by him of the title of the lessor of the plaintiff, as derived from the defendant's original co-tenant, nor any knowl |