
    John W. Fuqua et al. vs. John L. Tindall, Jr.
    While it is the settled rule, that the material allegations of a bill of discovery in aid of a suit at law, which axe neither admitted nor denied by the answer, are to be taken on the trial as true, yet it must affirmatively appear in the record that the defendants to the bill appeared, or were served with subpoena, and that the bill was taken for confessed against them; otherwise it will not be competent testimony for the plaintiff therein.
    Nor where there are two plaintiffs in a suit at law, who are suing as partners, and the defendant files a bill of discovery against them, and the process is only served on one of them, who answers, will the service on the one, even if the partnership were still in existence, be evidence of notice to the other partner.
    And where one partner has answered a bill of discovery against the firm, and the other neglects to answer, it may well be questioned whether his answer is not evidence at least for him when the bill of discovery is read by the plaintiff therein.
    A bill of discovery, and the answer thereto, filed in a suit at law, under the statute of this state are merely testimony, and therefore not parts of the record, unless made so by bill of exceptions ; which is the only medium by which matters of evidence can be transmitted from the circuit court to the high court of errors and appeals.
    In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. [Judge Rogers being interested as counsel for defendant, John A. Wilcox, Esq., by consent, presided at the trial.]
    On the 13th of October, 1845, John W. Fuqua and Benjamin 0. Adams, late partners under the firm of Fuqua & Adams, sued John L. Tindall, Jr., upon a note for $138-75. The defendant plead non-assumpsit, and payment, in short, by consent. "On the 28th of April, 1846,” the record states immediately after the plea, “ the defendant filed the following bill of discovery,” which follows in the record, and which alleges payment by the sale of defendant’s medical library by the plaintiffs; after the bill, the record states, “ And afterwards, to wit, on the 8,th .day of September, 1846, the said defendants filed the following answer, to wit,” &c. Then followed Fuqua’s answer, which admitted that he had. received certain books of Tindall, and stated that they had sold for $36, with which he was willing to credit the note. The record then contains the verdict of the jury for the defendant, after which appears the bill of exceptions ; which states, that after the defendant read his note, the defendant read his bill of discovery, to which the plaintiffs excepted. The plaintiffs then offered the answer of Fuqua in reply, which was excludéd, and exceptions taken. The court instructed the jury they must take the bill of discovery to be true; the jury found for the defendant; the plaintiffs moved for a new trial for reasons assigned, and excepted to its refusal.
    The plaintiffs sued out this writ of error.
    
      Lindsay and Copp, for plaintiffs in error.
    1. In Robinson v. Francis's Adm'r., 7 How. 458, the court say, , that a party filing a bill of discovery, necessarily admits that the facts stated in the bill cannot be proved by any other testimony, than to be derived from the answer of his adversary, and that answer is therefore conclusive upon him, and he will, not be permitted to disprove it.
    2. The record shows that the bill of discovery was not taken pro confesso for want of answer, and as the answer of Fuqua, one of the partners, lyas in answering, as his answer shows, fully upon his own knowledge, all the facts charged in the bill of discovery, it is sufficient, when no steps are taken to procure the answer of the other partner. Freelands v. Royall, 2 Hen. & Munf. 575.
    3. If there had been any notice to the party that the answer would be ruled out, or attempted to be ruled out, it might be different, but when the answer is on file, no rule of law or practice can sanction the course taken in this case. How. & Hutch. 607, says, that on the return of a subpoena, duly served, <fcc. The court took the fact that Fuqua answered as evidence of service of subpoena. This is not authorized by the statute.
    
      Coopwood and Dowd, for defendant in error.
    1. We hold, that the facts stated in the bill must be taken’ as trüe, and, until answered and denied fully by plaintiffs in error, are conclusive against them, so far as the allegations in the bill correspond with the issue joined between the parties. Taylor v. Matchell, 1 How. R. 596; Sprigg v. Jarrett, 1 A. K. Marsh. 335.
    
      2. The answer of Fuqua was not sufficient. It was not the answer of the firm of Fuqua & Adams, against whom the bill was filed; the firm of Fuqua &. Adams was dissolved before the commencement of the suit. Fuqua, in his answer, could not bind the firm for payment of any debt, or .for the performance of any legal duty, by any acknowledgment, or by the execution of a promissory note in the name of the firm after dissolution. Bristow v. Boyd, 4 Paige, 17; Combs v. Boswell, l Dana, 475 ; H. & H. Dig. 607.
    3. The statute, H. & H. 607, provides, that unless the facts charged in the bill of discovery are answered, the same shall be taken as confessed, and go to. the jury, as if the same had been admitted. The authorities already cited, are conclusive on this point.
    4. An appearance waives the necessity of proving notice. The record says, that the defendants to the bill of discovery appeared on the 8th of September, 1846, and filed the following answer, &c. Then follows the answer of John W. Fuqua.
    We further insist upon the rule of law, that, in the absence of proof to the contrary, the court below will be presumed to have acted correctly.
   Mr. Justice Thacher

delivered the opinion,of the court.

This is an action of assumpsit, instituted by Fuqua and Adams, formerly eo-partners, against Tindall, upon his promissory note. There was a trial, and a verdict and judgment for the defendant. A bill of exceptions, filed upon the overruling of a motion for a new trial, exhibits, that the defendant below, who relied upon a plea of payment for his defence, filed a bill of discovery against his plaintiffs, which was permitted to be read in evidence, and that the answer of Fuqua, one of the plaintiffs, was excluded from the jury. The reading of both of these documents was objected to by the different parties. The court then charged the jury in effect, that the allegations contained in the bill of discovery were to be taken as evidence in the cause. These, together with the note sued upon, embrace the evidence adduced upon the trial.

Nothing can be better settled than that the material allegations in a bill of discovery, which are neither admitted nor denied by the answer, are to be taken as true. But as the mode of enforcing testimony by the bill of discovery, is a deviation frófii the mode prescribed at common law in procuring evidence, the requirements regulating it must be substantially pursued in order to authorize it.

In the case before us, the bill of exceptions does not show that the persons from 'whom discovery was sought, were in attendance upon the court, nor that subpronas were duly served upon them. In a different part of the record, it is true, that the bill of discovery is set out, and’ the record proceeds to narrate that the “defendants” filed the following answer, &c. But no such statement appears in the bill of exceptions, which is the only place to which this court can properly look for the proof of matters of evidence introduced upon the trial. A bill of exceptions is the proper vehicle of communication between the circuit court and this court in matters appertaining to the evidence of the cause.

It nowhere appears, likewise, that, by order of court, the bill of discovery was directed to be taken, as confessed, as to Adams, before it was permitted to go to the jury. The evidence of service of notice of the bill of discovey upon Fuqua, was not evidence of notice to Adams; it would not have been sufficient had their co-partnership still continued. The requisites of which we have spoken, should have appeared before the bill of discovery was allowed to go to the jury. They are essential preliminaries in procuring evidence from a party to the suit. It may also be well questioned whether the answer of Fuqua was not evidence at least for him.

The judgment must be reversed, and a new trial granted.  