
    Garner and Neville, Plaintiffs in Error, v. Joshua Myrick et al., Defendants in Error.
    1. Evidence : oeeers to compromise. — An offer to pay money by way of compromise, and to get rid of an action, is no evidence of a debt, and inadmissible against the party making it: the rale is otherwise, however, as to admissions of particular facts, independent of the offer to pay, though made during the pen-dency of a compromise.
    2. Witness: partner: competency. — One of several persons sued as co-partners, is an incompetent witness, in favor of the plaintiff, to establish the partnership between himself and the others, he being directly interested in the recovery of a judgment against them.
    IN error from the Circuit Court of Chickasaw county. Hon. Locke E. Houston, judge.
    Garner and Neville, sued Joshua Myrick and W. Tompkins, and George Franks, as co-partners, upon a note made in the co-partnership name. Judgment by default was taken as to Myrick, and the suit dismissed as to Tompkins, no service ever having been had on him. Franks denied under oath, that he was a member of the firm at the time the note was made, and the cause'was submitted to a jury.
    On the trial, plaintiffs offered to prove by John Jay, “ that pending a negotiation for a compromise, between plaintiffs and defendants, said Franks admitted, that at the time the note was sued on, he was a member of the firm.” The court, upon objection of defendant, excluded the witness. The plaintiff then introduced the said Joshua Myrick, and offered to prove by him, that at the time of the making of said note, the said Franks was a co-partner with him, Myrick, and Tompkins, in tbe said firm. Tbe defendant objected, and tbe court excluded tbe witness.
    Yérdict and judgment were rendered for Franks, and plaintiffs sued out tbis writ of error.
    
      C. B. Baldwin, for plaintiffs in error.
    It is admitted, that a mere proposition for a compromise is worthless, as evidence of anythingfor any one has a right to buy, or to try to buy bis peace, — be may be willing to pay $100 rather than be sued for‘$1000 ; and tbe mere offer to pay $100 does not amount to an admission of liability to any extent. Tbis is as far as tbe rule can be sustained. It is difficult to see on what principle tbe admission of a distinct fact, opposed to tbe interests of tbe party who makes it, — made, too, to bis adversary, when all of tbe party’s suspicions are aroused, and bis wits are exerted to tbe utmost to show that tbe claim against him is unjust, — should be excluded from tbe jury, even though a compromise had.been spoken of ? Tbis never was law; and many recent American cases favor tbe position, that in all cases, tbe objection to evidence, on tbe ground of compromise pending at tbe time the admission is made, should only go to tbe weight, and not to tbe admissibility of tbe proof. Grubbs v. Nye, 13 S. & M. 444, and tbe authorities there cited. But be tbe rule as it may, tbe exception is clear, and universally admitted,’that tbe admission of a distinct fact, though made whilst a negotiation for. a compromise is pending, is admissible. Marvin v. Richmond, 8 Denio, 58; Marsh v. Gold, ■ 2 Pick. 284; Hartford Bridge Go. v. Granger, 4 Conn. 142; Sanborn v. Neil-son, 4 N. Hamp. 501; • Hamllett v. Hamblett, 6 lb. 833; 4 Pick. 374; and tbe case of Grubbs v. Nye, 13 S. & M. 444, above quoted.
    It is respectfully. submitted, that tbe court below also erred in excluding tbe evidence ■ of J. Myrick. Tbe authority most confidently relied on to sustain tbis position, is ’the case Balee et al. v. Munford, 4 S. & M. 318. Tbe only difference in. tbe facts of tbis case, and the one cited, is, that Culger, tbe partner and witness in that case, was not sued; in tbis, though Myrick, tbe partner and witness, was sued, yet be was not a party to tbe issue tried. Although Myrick might have objected himself to be examined, against his own interest, yet as he di’^. not see fit to do so, the fact of his being a party to the record did not disqualify him- 1 Phil, on Ev. 72.
    
      JPeatherston and Orr, for defendants in error.
    It is assigned for error, that the court below should not have excluded the testimony of Jay, who was introduced to prove the admissions of Franks, at the time the plaintiffs in error and said Franks were attempting to compromise and adjust the claim. This ruling of the court, we think well sustained both by reason and authority. It is admitted by the plaintiff in error, that what was said and done by the defendants in error pending the compromise, was properly excluded from the jury, by the court below. But it is insisted, that the admission of a distinct fact by the defendant was competent. If the rule of law as insisted on by the plaintiffs in error be correct, then it has no application to the facts in this case. The witness Jay, was introduced to prove some supposed admission of the defendant Franks, in regard to his being a member of the firm of J. Myrick & Co., made while the plaintiffs in error and said Franks were attempting to compromise the claim sued on. The admission, therefore, was not of a distinct fact, as alleged by the plaintiffs in error, but it appertained to the very question which they were trying to compromise at the time, viz.: the liability of Franks, as one of the firm of J. Myrick & Co. We understand the rule of law to be well established, that the admission of a fact connected with the merits of the cause, made by the party pending a compromise, is inadmissible; but the admission of a fact indifferent within itself, is admissible when made under the same circumstances. See 1 Phillips on Evidence, 109, seventh American edition. The admission in this case which they proposed to prove by the witness, was not indifferent, but intimately connected with the merits of the cause, and properly rejected by the court.
    The second error assigned, is the exclusion by the court below of the testimony' of Joshua Myrick, a member of the firm of J. Myrick & Co., who was introduced as a witness to prove, that G-eorge Franks, his co-defendant, was a member of the same firm of J. Myrick & Co, We think this testimony was very properly excluded by the court. It is a well established rule of evidence, that a member of a partnership can never be so far divested of his interest in the firm by any act of himself and co-partners, as to-be made a competent witness in a matter relating to the partnership. See Oollins v. Flowers, 1 How. (Miss.) R. 26; Lea v. G-uice, 13 S. &. M. 656.
    The witness Myrick, being himself a member of the firm, and having let judgment by default go against him, was an incompetent witness for the plaintiffs; for being himself liable, he was interested in rendering his co-defendant, Franks, liable to contribution, of which liability the record would be evidence. The record would be evidence for him to prove the joint liability of the defendant. See Starkie on Evidence, 89, fifth American edition.
    The plaintiffs having filed no replication to the plea of the defendant Franks, it is respectfully submitted, that the judgment of the court could not have been otherwise than for the defendant.
   Fishes,, J.,

delivered the opinion of the court.

The defendants below were sued as copartners upon a promissory note, signed in the name of the copartnership; and one of them denied under oath, that he was at the date of the note a member of the firm.

The plaintiffs on the trial introduced a witness, and proposed to prove by him, “that pending a negotiation for a compromise between the plaintiffs and defendant, the latter admitted,, that at the time the note sued on was made, he was a partner of the firm of J. Myrick & Co.” The counsel for the defendant objecting to this evidence, on the ground that it came within the rule excluding admissions made for the purpose of compromise,, the court sustained the objection. The rule is thus stated by the Supreme Court of Massachusetts: “ The general proposition stated in the books is, that an offer to pay money by way of compromise, and to get rid of an action, is not evidence of a debt; if the object be to buy peace, it is plain such an offer carries with it no evidence of the justice of the demand, and it would have a tendency to prevent amicable adjustments, if such offers were to be used against tbe party making them.” But tbe admission of particular facts, independent of an offer to pay, does not bear tbe same character. Marsh v. Gold, 2 Pick. 290. Tbe testimony bere offered comes witbin tbis latter description, and was therefore admissible.

We are of opinion, that no error was committed in excluding tbe evidence of tbe other partner. • He was a party to the record, and was interested in tbe recovery of a judgment, in tbe event of tbe copartnership effects being insufficient to satisfy it, as be would in such event have bis recourse against tbe other debtor, for a moiety thus paid.

Judgment reversed; venire de novo awarded.  