
    Walker and Bragg vs. John Parkham.
    "ÍVhere an action was brought by two partners, A and B, on a book account and the entries were made by A, — B can not be admitted to prove the entries made by A, unless it be clearly proved that A is out of the State.
    This was a summary process to recover a medical account. The services had been rendered, and the entries made, by Dr. Walker, who resided out of the state, but who was within the state during the sitting of the court. Dr.'Bragg was offered as a witness to prove the entries, they having been made by his copartner, and his evidence was rejected as incompetent. The plaintiff’s counsel then called on defendant to swear if the account was not correct. He deposed that he had never employed Dr. Walker to perform the services charged.
    A nonsuit was ordered.
    The plaintiff moved to set aside the nonsuit, because Dr. Bragg’s evidence was rejected.
   Nott, J.

There can be no doubt but that the evidence offered in this case was properly rejected. In the case of Thomas and Seth Foster vs. Sinkler, (1 Bay 40,) one plaintiff was permitted to prove the hand writing of. the other, being his copartner, who was out of the state. But, that is as far as the decisions of our courts have gone, and father than I should consent to go, if I did not feel bound by that decision and the practice under it ever since. In this case the judge reports that the co-partner was in the state at thé time of the trial. The counsel seem to think that the testimony did not to go so far. They understood the testimony to be that he had been in the state a short time before the court, but that the witness did not know where he was at that time. But, admitting that to be a correct statement of the facts, it would not change my opinion. 1 would hold the party to strict prpof that he was.out of the state, before the secondafy'wvidencp, hhould be admitted.

The motion is therefore refused.  