
    Whitney against E. Ferris, impleaded with others.
    ALBANY,
    Jan. 1813.
    gIinsthA.,a B. and c., as seitwasheidthat thins and acts evidence° show that he considered himself a sewith Blanda mfs^bie* dtrectiy to implicate or charge s, as a partner. In an action
    THIS was an action of assumpsit, for goods sold and delivered, brought by the plaintiff against Elijah Ferris, impleaded w^h Jonathan Ferris and Amos Bostwick. The goods in question were- sold to Bostwick, residing in Swanton, in the state of Vermont, on bis individual credit, and charged to him in the-books of the plaintiff. He became insolvent, and the present suit was brought to charge the other two defendants, J. Ferris, who ° ° s , _ _ resided at &wanton9 and E. Ferris, residing in the city of New-York, as secret partners of Bostwick. E. Ferris only was taken; the other two defendants being returned not found. The cause was, tried at the New-Yor.k sittings, the 30th June, 1812, before the Clnej Justice.
    
    ]a¿-ge maga of evidence was.: given at the trial, and stated in "the case; but, as it regards the opinion of the Court, it.is neces.sary only to mention the following facts:
    The plaintiff offered to give evidence of the declarations and acts of Jonathan Ferris, to show that’ Bostwick was in partnership with Jonathan and Elijah Ferris ; but the defendant’s counsel objected to any evidence of the declarations or acts of J. Ferris, implicating E. Ferris, until the plaintiff had first proved the fact of a partnership between the three persons charged. The Chief Justice overruled the objection, and admitted the evidence.
    The jury found a verdict for the plaintiff, and they assessed bis damages unconditionally, at 3,915 dollars and 32 cents; and if the partnership of .the defendant with the others existed in November, 1809, then they assessed further damages for the plaintiff to 2,438 dollars and 45 cents; but whether such a partnership did exist at that time they were ignorant, and submitted the same to the court on the evidence in the case.
    A motion was made to set aside the verdict, and for a new trial.
    
      Hoffman and Harison, for the defendant.
    
      Griffen and T. A. Emmet, for the plaintiff.
   Per Curiam.

The declarations and acts of Jonathan Ferris are evidence toshow that he considered himself a partiler with Bostn,ick and Elija4 Ferris, but they are not evidence directly to implicate or charge Elijcth with being a partner. They were, therefore, admitted, in this case, in too broad a latitude, and we cannot say what influence they might have had with the jury in charging Elijah directly as a partner. We cannot certainly determine but that if those declarations had been understood and declared to operate only as an admission of Jonathan Ferris against himself, the jury might have formed a different verdict. As, therefore, the jury might have received and acted under an erroneous impression communicated by the judge, it is advisable that the case should be reconsidered.

New trial awarded, with costs to abide the event.  