boring under any feebleness of mind from disease, or approaching dissolution. The provisions of her will appear to be reasonable. It is not shown that any imposition was practiced upon her, or that her sons had any agency in the preparation of the will. It was erroneous for the court to tell the jury, as a matter of law, that it being shown that she could not read, it was necessary to prove that the will was read to her. They had the right to infer, from all of the circumstances, that she knew the contents of the will, though, as shown by the authorities above quoted, in determining whether there was fraud or imposition in the execution of the will, the fact that she could not read, and that the will was not read to her, at the time she signed it, were circumstances to be considered by the jury. The judgment must be reversed, and the cause remanded for a new trial. TAYLOR ET AL. vs. MOORE. On a plea of failure of consideration, setting forth that on the sale of the prop erty for which the note in suit was given, the plaintiff had represented it to be sound, etc, and alleging that such representations were false and fraudulent, the main fact in issue is, that the representations were made as alleged, and were false and fraudulent; and if the defendant fail to prove the representations, the court may well exclude all evidence as to the soundness, etc., of the prop. erty, as being irrelevant to the issue. TERM, 1861.] Taylor et al. vs. Moore. Appeal from Prairie Circuit Court. Hon. JOHN J. CLENDENIN, Circuit Judge. GATEWOOD and MARTIN, for the appellant. GARLAND & RANDOLPH, and WILLIAMS, for appellee. Mr. Justice FAIRCHILD delivered the opinion of the court. Charles D. Taylor and John A. Frith, as C. D. Taylor & Co., made their note to J. Watson, or bearer, which was assigned to Moore, who sued upon it in the Prairie Circuit Court. The defendants pleaded a failure of consideration, the plea stating that the note was given to Watson in part consideration of a wharf boat, bought of him by the defendants, upon Watson's representations that the boat was good and sound, and adapted to the use for which the defendants wished to use it, Watson knowing what that use was to be; that such representations were false and fraudulent; that the boat was in a leaky and sinking condition when bought, and sank shortly after being brought to Des Arc, and was worthless to defendants. Taking it for granted that an issue was made upon the plea, which the record does not show, and that the plea is good, which we doubt, it was entirely unsupported by any evidence that Watson made any false representations about the boat, or that he is any way liable to the charge of crafty or fraudulent dealing, charged upon him in the plea. All the evidence introduced by the defendants to prove the leaky and sinking condition of the boat while at Des Arc, that it did fill with water, despite the attempts made to keep it afloat, and was lost to the defendants; and that the boat leaked while at Helena, where it was when Watson owned it, was irrelevant to the main fact of the plea, which was, that these facts were contrary to representations made by Watson, and that they were falsely and fraudulently made. It must have been upon this ground that the Circuit Court excluded all the evidence of the defendant, and we cannot say that in doing so it erred. The right of the court to pass upon the competency of testimony is equal to that of the jury to determine its weight when submitted to them. The defendants had the privilege of introducing the testimony, subject to the condition of connecting it with proof of such representations by Watson, as the plea charged him to have made, as they might prove the several parts of their plea in the order that suited them. But when their testimony was closed, and no proof was given that Watson had made any representations of the goodness and soundness of the boat, of his knowledge of the use to which the defend ants wished to put it, and of its adaptation to that use, the testimony was liable to be stricken out, as not supporting the plea of failure of consideration, and as being irrelevant to any issue formed in the case. If it did not establish the plea of failure of consideration, it was not, of course, admissible under the general issue, for the consideration of the note sued on, could only be impeached upon plea supported by affidavit. We do not pretend to say, that there was, or was not, a plea of the general issue in the case, the transcript leaving it in doubt. Perceiving no error in the judgment of the Circuit Court, which was for the plaintiff upon the note according to its face, and from which the defendants appealed, it is affirmed. TERM, 1861.1 Berry vs. Barnes et al. BERRY VS. BARNES ET AL. Although in an action for goods sold and delivered to a third person for the defendant, the evidence may be taken as tending to establish an agency in the third person to buy the goods for the defendant, so as properly to have submitted the matter to the jury, an instruction which assumes, in the absence of all proof of the fact, that there was evidence whence the jury might infer that the agent could buy the goods on credit, is erroneous. A mere agency to buy goods does not imply such an agency as authorizes a purchase on credit; and where a special agent is employed in a single transaction, those dealing with him must look to his authority, or abide the consequences. Appeal from Drew Circuit Court. Hon. JOHN C. MURRAY, Circuit Judge. HUTCHINSON, for the appellant. HARRISON, for the appellee. Mr. Justice FAIRCHILD delivered the opinion of the Court. The appellant and Allen M. Scott executed the following writing: 66 "These articles of agreement, made this 11th day of Sep"tember, A. D., 1857, between James D. Berry, of the county of Drew, in the State of Arkansas, of the one part, "and Allen M. Scott, of the county and State aforesaid, of the "other part, witnesses: that whereas, the said party of the first 'part is anxious and willing to set up and establish himself in "the business and trade of book merchant, in the town of "Monticello, and agrees to furnish all the capital, and become responsible for all the legitimate liabilities of the concern 23 411 74 561 "when established; and whereas, the said second party, in "consideration of the advantage and convenience such an "establishment in said town will afford him as principal of the "male and female schools established at that place, is willing "and consents that said business shall be carried on and con"ducted under his name, the said first party being responsible "to him for any and all liabilities that may accrue on account "thereof; and it is expressly agreed and understood between "said parties, that nothing connected with said concern shall "in any wise be or become liable for any indebtedness of the "either party, and that said second party shall have no interest "in the profits which may accrue from the concern. In testimony whereof, the said parties have hereunto put their names "and seals. "J. D. BERRY, (SEAL.) "Attest: "J. S. WINTER." This agreement, with statements of Berry, that he was going into the business of selling books in Monticello, and that Scott had gone to New York, and would buy the books, make up the evidence on which the appellees wish to hold Berry liable for a bill of books that Scott bought, and for which he gave a note signed A. M. Scott & Co., representing that the company consisted of himself and of Berry. The appellees sued Berry in an action of assumpsit, with one count upon the note, and another for goods sold and delivered, in which a verdict was given for the defendant upon the first count, and for the plaintiffs upon the second count. Judg ment was rendered on this verdict against Berry, and he has appealed therefrom, and contends that the judgment is erroneous, because the Circuit Court did not exclude certain testimony to which he objected, because the verdict is against law and evidence, and because the court gave illegal instructions for the plaintiffs, and refused legal instructions which he asked to be given. These objections were made the grounds |