
    Alexander against Coulter and another, administrators of Jones.
    In Error.
    
      JAMES ALEXANDER, the plaintiff, entered into partnership with Levi Jones, deceased, by written agreement, in which Jones undertook to keep fair and regular books respecting the sales of goods made by him. The plaintiff resided in this state, and Jones at Canton in the state of Ohio. After the death of Jones, the defendants, his administrators, took possession of the partnership books, and collected some of the debts at Canton. In this action the plaintiff complained, that Jones broke his agreement by not keeping fair and regular books, and that Jones in his life-time, and the defendants since his decease, had received debts of the partnership, for which they were accountable to the plaintiff. The plaintiff contended on the trial in the Court below, that the defendants, by taking possession of the partnership books and proceeding to collect some of the debts had made themselves liable for all the debts, whether collected or. uncollected, sperate or desperate. But the Court were of a different opinion, and charged the jury, “ that although the surviving “partner had a fight to the partnership books, yet.the admi- “ nistrators were not bound to deliver them till they were de“manded, and if the surviving partner had suffered them to “ remain in the hands of the administrators, and they had ig“norantly sued for and recovered any of the'partnership “ debts, they were liable to refund the amount, but are not, . J , . . • ' . í , r n “in consequence ol having sued for some, answerable for all “the partnership debts.” To this opinion the plaintiff excepted, and the Court sealed a bill of exceptions.
    
      The administrators of a deceased partner do not make themselves liable to the surviving partner for all the partnership debts by ignorantlytaking possession of the partnership books and collecting some of the partnership debts.
    In an action for a breach of the defendants’ agreement to keep fair and regular partnership books, parol evidence cannot be given of the contents of a book, which was not in the possession of the defendant on the trial, and which no notice had been given him before the trial to produce.
    The act of assembly of 27th February, 1798, does not take away the common law principle by which parol evidence is admissible,
    
      On the trial the plaintiff gave in evidence, that in the store kept by Jones at Canton, sundry books were kept consisting of a ledger, a day book, an invoice book, and a book of sales. The defendant, Coulter, produced all the books except the book of sales. His oath was offered, touching the books, and being sworn, he declared, “ that he was not able at that time “to produce any other ho.ok, having no other in his posses- “ sion : that he had never seen the book of sales, but understood, that such a book was at Canton, having been placed “ with his consent, in the hands of a justice of the peace in that “ place: and he also declared, that he would have produced “ that book if possible, had he known that it was wanted.” The plaintiff had given no notice to the defendants previous to the trial to produce these books: but offered parol evidence of the contents of the book of sales kept by Levi Jones. The Court were of opinion, that parol evidence was inadmissible, because notice to'produce the book had not been given, Another bill of exceptions to this opinion was returned.
    Baldwin, for the plaintiff in error.
    Campbell, contra.
   Tilghman C. J.

(After stating the case.) I am at a loss to find any ground on which the first exception can be supported. If the surviving partner knew, that the administrators were collecting the debts and did not forbid them, or demand the possession of the books, they might fairly be considered as his agents: but even if the_ collection were made without his knowledge or implied approbation, the most that he could ask would be, that the defendants should answer for all debts that had been lost in consequence of their interference. The bill of exceptions does not state the particulars of the evidence, but from the charge of the Court it would seem, that the defendants had not acted perversely, but ignorantly, which would preclude, all claim on the part of the plaintiff to vindictive or extraordinary damages. I am, therefore, of opinion, that there is no error in the charge of the Court.

There is on the record, another bill-of exceptions to the Court’s opinion. [Here the Chief Justice stated the facts.] The Court were of opinion, that parol evidence was not admissible, because notice to produce the book had not been given. We have an act of assembly authorising the Court On motion and sufficient cause shewn, to require either party to produce books or papers in his possession, which contain evidence pertinent to the issue; and if the party refusing to comply with the Court’s order, shall be the plaintiff, judgment may be entered for the defendant, as in cases of non-suit: but if defendant, judgment may be entered against him by default, as far as relates to that part of the demand, or defence, to which the books or papers are alleged to apply. This act of assembly does not take away the common law principle by which parol evidence is admitted against the party who refuses to produce books and papers in his possession after reasonable notice. It is convenient, and indeed necessary, that the remedies by this act and by the common law should be considered as concurrent. , This is shewn in the present case : where the common law principle would be efficacious, but the act of assembly would give no adequate relief: because there is no particular sum of money demanded by the plaintiff, to which the book applies, and for which judgment could be entered, in case the Court had made an order with: whiGh:jthe defendants had refused to comply. The common law rule is, that parol evidence shall not be received without reasonable notice to produce the paper. But. the plaintiff contends, that his case forms an exception to the rule, because from the very nature of his action, notice to produce the books may be implied; and for this he relies on the case of The Commonwealth v. Messinger, (1 Binn. 273.) in which it was decided by this Court, that on an indictment for stealing a bill obligatory, parol evidence to prove the contents of the bill is admissible, without notice to produce.it. The most that can be inferred from that case is, that where the writing, to prove the contents of which parol evidence is offered, is itself the immediate subject of the action, (as in trover, replevin, or detinue,) the evidence is admissible. It is not enough, that the paper is referred to in the declaration. If it were, parol evidence might be received, without notice, in the case of a libel proved to have been in the possession of the defendant. But in such case the , , , , r ,1-rule is strictly adhered to. In the case before us, the plaintiff complains, that Jones, (the intestate,) did not keep fair books. It seems he kept several books, and several were produced at the trial. But one was not produced, which the defendant swears he did not know would be wanted. It was easy for the plaintiff to give notice. And as there is a rule on the subject, it will be more conducive to certainty on triáis to adhere to the-rule than to be astute in making distinctions for the purpose of evading it. The burden of proof in this ca$e lay upon the defendants. It was for them to shew, that fair books had been kept by their intestate, They might suppose,, that this could be done without producing all the books : and ft seems they did think so : for they went to trial without the one in question. If they failed in their proof they were liable to damages. I do not think that this is, a case, which, on any principle heretofore established^ forms an exception to the general rule. The parol evidence, therefore, was properly rejected.

My opinion is, that the judgment should be affirmed.

Ye ates J, was sick and absent.

Gibson J. concurred.

Judgment affirmed.  