Opinion.

ter to whose requisitions they were delivered, payment was refused."

The appellee, McWilliams, concedes, in his deposition, that bricks were sold by Peters & Reed to the Confederate government, and never paid for.

We do not deem it necessary to determine whether Peters & Reed were acting, in the delivery of these bricks, as factors for their firm of "The Cedar Grove Brick Manufacturing Company," or as partners having the common property in custody (which last is to be inferred from the fact that they charged and were to receive no compensation for handling them); because it is not shown in this record that the failure to collect payment for the bricks taken by the Confederate government was attributable to their negligence. And upon this point we do not see why McWilliams, Hobday and Wilson had not the same right and obligation to collect this payment from the government as Peters & Reed had.

We think, therefore, that the commissioner was right in not holding Peters & Reed liable to account for this sum of $1,647.85; and that the hustings court erred in overruling the said report in this particular. The next error assigned is the ruling of the court below sustaining the second exception of the plaintiff, the said McWilliams, to the report of the said commissioner-viz: "For that the said commissioner allowed the item of the note of $316.73, in Account C, whereas the commissioner should not have allowed it." This note was given, originally, for indebtedness due by the partnership of Peters, Reed & Wilson, before Hobday and McWilliams were admitted as partners. The contention before the commissioner was, that as Hobday and McWilliams assumed one-fourth of the liabilities and profits when they were admitted as partners, they owed and were chargeable with one-fourth of the said note

Opinion.

for $316.73, which was paid off by Peters, Reed & Wilson. The commissioner did allow this item against the said Hobday and McWilliams; but the court sustained the exception of the plaintiffs, and overruled the commissioner. In this, we think, the court did not err. This claim rests. solely on the testimony of Holt Wilson. He says it was connected with the brickyard affairs before Hobday and McWilliams became interested as partners, and that they agreed to assume their share of the then debts. This is positively denied by McWilliams, who says that they took their interests free from the pre-existing debts; that he never heard of this debt until it was mentioned in Wilson's deposition; that he did not assume any liability or debt contracted before he became a partner with Peters, Reed & Wilson; that he "understood the concern was clear of debt when they entered into it." The matter is affirmed by one witness (Holt Wilson), and is positively denied by another (McWilliams). The denial is equal to the affirmation, and the onus probandi being upon the party asserting the claim, it must, in the absence of evidence in the record, be taken as not proved. There is no trace of this note in any of the accounts kept by Holt & Wilson; none of the books and accounts show any connection between the old and the new concern.

The introduction of the new partners, McWilliams and Hobday, on the 1st January, 1860, ipso facto, dissolved the pre-existing firm of Peters, Reed & Wilson, to which they acceded. See Collyer on Partnerships, p. 151, note; 34th Missouri Reports, Mudd et als. v. Bost et als., p. 465.

"A person who is admitted as a partner into an existing firm, does not thereby become liable to the creditors of the firm for anything done before he became a partner." Pollock's Digest of the Law of Partnership, page 27, Article 16 We are of opinion that the hustings court did not err in

Opinion-Decree.

sustaining the plaintiffs' second exception to the commissioner's report, as to which the decree complained of must be affirmed. But the said court did err in sustaining the plaintiffs' first exception to the commissioner's report as aforesaid, and in holding William H. Peters and Washington Reed liable to the plaintiffs for the aggregate sum of $1,647.85, for the bricks sold or delivered to the Confederate authorities; and for this error the decree of February 14th, 1881, and April 26th, 1881, appealed from, must be reversed and annulled.

Upon the question of jurisdiction, presented in the argument, and submitted in the last two lines of the printed brief of counsel for the appellees, it is sufficient to say, that the amount in controversy being over $500.00, this court has jurisdiction of this cause.

LACY and RICHARDSON, J's, were of opinion that the decree should be reversed in toto.

The decree was as follows:

This day came again the parties, by their counsel, and the court, having maturely considered the transcript of the record of the decrees aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said hustings court did not err in sustaining the plaintiffs' second exception to Commissioner Edwards' report, and holding that the appellee, John E. McWilliams, was not liable for any portion of the note of $316.73, but that said court erred in sustaining the exception of the plaintiffs to Commissioner Edwards' report, and in holding the appellants liable to the plaintiffs for the aggregate sum of sixteen hundred and forty-seven dollars and eighty-five cents, for the bricks sold and delivered to Con

Decree.

federate authorities. It is, therefore, decreed and ordered, that so much of said decrees as is hereby declared erroneous be reversed and annulled, and the remainder thereof affirmed; and that the appellees, John E. McWilliams, out of his own estate, and Albert Hobday, administrator of John Hobday, dec'd, out of the estate of his intestate, pay to the appellants their costs by them expended in the prosecution of their said appeal and supersedeas here; which is ordered to be certified to the said hustings court of the city of Portsmouth.

DECREE REVERSED IN PART AND AFFIRMED IN PART.

Syllabus.

Richmond.

BURWELL AND ALS. V. BURWELL'S GUARDIAN, &C.

January 31, 1884.

Absent, Lewis, P., and Richardson, J.

I. GUARDIANS-Conversion of assets-Reacquisition.—Where guardian appropriates his ward's assets to his own private purposes, it is a breach of trust for which he is liable; which liability is not removed by his subsequent reacquisition of those assets.

2. NON-RESIDENTS-Publication-Appearance-Notice.—Under Code 1873, chapter 166, section 15, where order of publication has been duly executed against non-resident, or unknown defendants, no other notice is required to be given them in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specially ordered by the court, if those defendants shall not appear within one month after completion of the publication. But if they so appear, then they are entitled to notice in all the subsequent proceedings in the suit.

3. IDEM-Idem—Case at bar.—In 1873, G qualified as guardian of T and four other infants. In September, 1875, G filed his bill for a settlement of his accounts against his wards, all of whom were non-residents, and an order of publication was duly executed, and they duly appeared by guardian ad litem. Account showed in guardian's hands, in money, $8,261.16, received February 1, 1874, and also one bond for $1,000 G loaned J, February 4, 1874, on trust deed. In May, 1876, court confirmed report, and ordered G to pay T, who had obtained his majority, one-fifth of the money—i. e., $1,632.23—and to collect the bond. Four days after decree, G assigned this bond to T, in part settlement and exchange for the $1,632.23 he had been ordered to pay T. The bond was worthless, the security being worthless when G loaned J the money. In September, 1877, G took back the bond from T and claimed it to be part of his ward's assets. Before lending the $1,000, G employed attorneys of good standing to investigate the security, and they reported it good and free from encumbrances; for which service they were paid $100, deducted from the $8,261.16. But encumbrances existed and