RAINES' TAVERN, October 27th, 1840. Messrs. Wadsworth & Williams, Richmond. Gentlemen, Please to deliver to Mr. Daniel Totty, or to his order, merchandise to an amount not exceeding in value, in the whole, five hundred dollars; and on your so doing, we hereby hold ourselves accountable to you for the payment of the same, in case Mr. Daniel Totty should not be able so to do, or should make default of which default you are required to give us reasonable and proper notice. Your obd't serv'ts, Charles B. Allen, On the trial of the cause, after the above paper had been read,and the handwriting of the defendants proved, the plaintiffs offered to read the deposition of William B. Isaacs, which had been taken by consent, to be read as evidence on the trial, subject to any legal objections to which the testimony would be subject if given in court. Whereupon the defendants moved the court to strike out the following passages, viz: "That the said John E. Wadsworth and Orren Williams had, previous to the year 1840, transacted business as merchants and partners under the name of Wadsworth & Williams; which firm was dissolved in the year 1836, and succeeded by the said Wadsworth, Williams and D. B. Turner, under the name of Wadsworth, Williams & Co.; and in 1839 they were succeeded by the same parties and George S. Palmer, the name of the firm continuing as last mentioned. The plaintiffs frequently addressed and spoken of as Wadsworth & Williams, but that was not the style of the firm in 1840, nor has it been since 1836; but the successors were in the habit of recognizing letters and orders ad were 1851. October Term. Wads worth & als. V. Allen, &c. 1851. October Term. Wadsworth & als. V. Allen, &c. dressed to Wadsworth & Williams as intended for themselves, and of acting under them. That the said Wadsworth & Williams were not, either jointly or separately, engaged in the sale of merchandise on their individual account, or in any other connexion, after the year 1836, except as members of the firm of Wadsworth, Williams & Co." The court sustained the motion, and excluded the evidence; and the plaintiffs excepted. The plaintiffs then proved, that in the year 1840, Orren Williams then being alive, Daniel Totty, of the county of Cumberland, exhibited to the concern of Wadsworth, Williams & Co. the letter of credit above given. That on the faith of that letter they sold and delivered to Totty goods to the value of 395 dollars 47 cents, for which they took his bond dated the 30th of October, payable in six months. That on the 30th of April 1841 they wrote to Messrs. Allen and Phaup, referring to the letter of credit, stating the amount of Totty's purchases upon the faith of that letter, and that the money was due that day and had not been paid: But there was no proof that the letters had been received. They proved further, that on the 31st of May 1841 their agent called on Phaup, at his house, and informed him that the money had not been paid by Totty, and asked for payment of it by Phaup. That on the same day the agent went to the house of Allen, to see him on the same subject; but he was not at home. That the agent saw Allen at the March term of the court for 1842, when he attended as a witness in the case, when Allen told him that Totty had placed claims in Allen's hands to pay the said debt. That he saw Allen again in 1842, when Allen told him that he did not then have the money to pay the debt, but that he would pay it in a short time if the agent would have the suit dismissed. And it was also proved by the plaintiffs' counsel, that either at the June or July term of the County court of Cumberland in 1841, he met with the defendant Allen, and exhibited to him the letter of credit and bond of Totty, and informed him that he held them for collection. 1851. October Term. Wadsworth & als. V. After the plaintiff's had introduced their evidence the Allen, &c. defendants moved the court to exclude from the jury the letter of credit herein before mentioned, as incompetent to charge the defendants in this cause; which motion the court sustained, and excluded the letter; and the plaintiff's again excepted. There was a verdict and judgment for the defendants; whereupon the plaintiff's applied to this court for a supersedeas, which was allowed. Lyons, for the appellants. ALLEN, J. delivered the opinion of the court. It seems to the court here, that although the guaranty offered in evidence by the plaintiffs in error was addressed to Wadsworth & Williams, and not to the plaintiffs in error, Wadsworth, Williams & Co., yet it was competent for the plaintiffs in error to prove that at the time the same was so addressed to Wadsworth & Williams they were partners in the firm of Wadsworth, Williams & Co., and were not engaged in the mercantile business on their own account, or in connection with any other mercantile firm in the city of Richmond; and that said letter of guaranty being presented to the plaintiffs in error, the same was accepted by them, and the goods furnished for the price of which this suit was brought. The court is therefore of opinion, that as the evidence set forth in the first bill of exceptions taken by the plaintiffs in error on the trial of the issue tended to prove the facts aforesaid, the Circuit court erred in excluding the same from the jury. VOL. VIII.-12 1851. October Term. Wadsworth & als. V. Allen, &c. And it further seems to the court that said Circuit court erred in excluding from the jury as evidence the said letter of credit, in the second bill of exceptions mentioned, as incompetent to charge the defendants in error. By the terms of the letter of credit the defendants in error waived all right to notice of the acceptance of the guaranty, if they would otherwise have been entitled to require it; a question upon which the court expresses no opinion. By their engagement the defendants in error agreed to hold themselves accountable for the payment of the price of the goods, to an amount not exceeding the sum therein mentioned, in case the purchaser should not be able to pay for the same or make default; of which default they required reasonable and proper notice to be given them. It was competent for the defendants in error to specify the conditions upon which their accountability should depend; and having done so, if those conditions have been complied with, they cannot object the failure of the plaintiffs in error to comply with other terms which the law might have imposed, but a compliance with which the defendants in error have waived. Whether there was reasonable and proper notice of the default, was a question for the jury upon the testimony, upon proper instructions from the court. Nor did the fact that the purchaser gave his bond for the price of the goods discharge the defendants in error from liability on their guaranty; the question between them and the plaintiff's in error being, not what evidence of the debt the latter may have taken from the purchaser, but whether the price of the goods has been paid at the time stipulated in the contract of sale. It is therefore considered that said judgment is erroneous, and that it be reversed, with costs to the plaintiffs in error, and that the verdict be set aside, and the cause remanded for a new trial of the issues joined; 1851. October Term. Wads worth & als. on which trial the part of the deposition of William B. Isaacs, as set forth in the first bill of exceptions, and the letter of guaranty referred to and set forth in the second bill of exceptions, if again offered in evidence, and not objected to for any other cause than is disclosed Allen, &c. by said bills of exceptions, are to be permitted to go in evidence to the jury. V. 1. A forthcoming bond forfeited has the force of a judgment, so 3. A judgment confessed in court in a pending suit, and the oath 4. Though a forthcoming bond is forfeited, and not quashed, yet in equity the lien of the original judgment still exists; and if the obligors in the bond prove insolvent, so that the debt is not paid, a court of law will quash the bond so as |