Tomlinson

Murray, C. J., concurred.

It appears from the record in this cause, that C. II. Stanton, claiming to be a secret copartner of Spencer, the appellant, in the transaction of business at Union—the business being conducted in the name of Spencer,—negotiated a promissory note for $500, drawn by him as Spencer’s authorized agent, in the name of Spencer ás maker, payable to himself, and endorsed to respondent, Tomlinson. The Court below finds that Stanton was a secret partner of Spencer in the mercantile business. That Spencer attended to the sales at Union, and that Stanton remained at San Francisco for the purpose of purchasing goods, with which to supply the trade at Union; and that the note in question was given for money borrowed of plaintiff, and that a large share of the money so borrowed, was actually paid out by said Stanton for merchandise, which was forwarded by him to Spencer, at Union, and was there sold for the benefit of said parties.

It is objected, that Stanton, who was introduced as a witness, after being released upon his endorsement by the plaintiff below, was incompetent to testify as to his copartnership with Spencer; and incompetent, for the purpose of…