— Stephens J.
By the Court.
delivering the opinion.
[1.] We think the Court erred in admitting®the testimony that Dr. Maddox manifested surprise on being informed, that in Charleston he was regarded as a member of this [287]*287firm. This was used as evidence that he was not a member. What more verity is there in a gesture or.exclamation . of surprise, than in plain words expressing the same emotion? Yet, his words to that effect would be confessedly inadmissible. To admit either the one or the other, would -open a wide door for the introduction of manufactured evidence. There are a great many cases where the conduct of a person may be introduced as evidence for himself, but it is sufficient to remark that they are not cases, as in this instance, where gestures or exclamations, or even an “eloquent silence,” are used as voluntary vehicles of thought. It would be exceedingly difficult to distinguish this from the case pf spoken language, it is acted language — the one being quite as voluntary as the other.
[2.] We. think the Court erred also, in charging the jury that circumstances could not outweigh direct testimony. Direct or positive testimony might come from a very unrer liable person, or coming from a source of great respectability might yet break down under the weight of its own absurdity. It is impossible, therefore, to fix any uniform value upon direct or positive testimony as such. It is equally impossible to fix a uniform value upon circumstantial evidence as such. In many cases the one justly outweighs the other, while iis many others the preponderance is precisely reversed. But strictly speaking, the evidence on both sides of this case was only circumstantial. The testimony that Dr. Maddox sold out, for instance, is only a circumstance raising an improbability that he was again immediately connected with the firm. No witness could know that he was not a member of the firm, except the members of the firm themselves. All other people are necessarily left only to infer it, if they get to that conclusion at all.
[3.] We think the Court was right in holding, that persons who are mere apparent partners as distinguished from actual partners, are responsible as such, only to those who have acted on the faith that the appearance was according [288]*288to the reality. The whole foundation of holding such persons liable, is good faith. There can be no breach of faith where no faith has’.been refused.
Ju dgmen t reversed'.
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