
    J. PERES, Plaintiff in error, v. A. ENSEL, Defendant in error.
    (S. C., Thomp. Cas., 261-263.)
    Nashville,
    December Term, 1865.
    1. EVIDENCE. Written instruments not sued on.
    To'make a paper writing not sued on competent evidence, proof of its execution is indispensable; but its execution need not be denied under oath. [Plea of non est factum. ' Code, see. 4630, notes 14-27; secs. 5556-5559, and notes; Greenl. on Ev., 557.
    2. SAME. Partnership settlements, not corrected in court of law.
    A mistake in the settlement of partnership -accounts cannot be proven in a court of law. [Errors in settlements of accounts may be corrected in chancery upon bill filed for that purpose. Gray v. Washington, Cooke, 321; Love v. White, 4 Hay., 210; Ready v. Munday, 1 Tenn. Chy., 459; Jones v. Ward, 10 Yer., 164-167; Hay v. Marshall, 3 Hum., 623; Overton v. Phelan, 2 Head, 448; Bankhead v. Alloway, 6 Cold., 75; Patton v. Cone, 1 Lea, 20; Evans v. Stro-ud, 10 Lea, 182; Nashville v. Knight, 12 Lea, 707, 708; Maddox v. Apperson, 14 Lea, 596.]
   Hawkins, J.,

delivered the opinion of the court;

This suit was commenced by warrant, before a justice of the peace of Shelby county. The justice rendered a judgment against Peres, the defendant, from which he appealed to the common law and chancery court for the city of Memphis, in which a trial was had, which resulted in an affirmance of the justice’s judgment, from which a motion for a new trial having been overruled, Peres has appealed to this court. It seems from the record that Joseph Peres, Andrew Ensel, and Jacob J. Peres were partners in trade under the style of Jacob J. Peres & Oo-., and as snch contracted debts; that a suit was commenced hTa court known as the civil commission for the district of Memphis, by one of the creditors of the firm, to recover a debt due him from the firm, in which he recovered a judgment for $216, amount of his debt and cost, which was afterward paid, and of which Ensel paid $84.08 as his part of the judgment, and now brings this suit to recover the same from Joseph Peres. It appears that prior to the payment of the money by Ensel, the copartnership was dissolved by mutual consent, and upon the trial Ensel offered in evidence a paper writing purporting to contain the terms upon which the co-partnership was dissolved, and which purports to' have been executed by all the members of the firm, after the dissolution of the copartnership, for the purpose of showing that Peres had offered to pay the whole debt of which Ensel had been compelled to pay a part, to the reading of which Peres objected; the objection was overruled, and the paper read to the jury, to which Peres excepted. It is now insisted, and we think correctly, that the admission of the same was error. The suit was brought upon an account and not upon the written contract offered in evidence, therefore the defendant was not required to deny upon oath the execution of the paper. To have made the paper competent evidence, proof of its execution was indispensable. None was offered, therefore the judgment must be reversed and a new trial awarded. • It is also' insisted that the civil commission of the district of Memphis was a tribunal unknown to> the law, and had ño authority to pronounce -the judgment upon which the money was paid, and therefore the court erred in admitting as evidence the record of the same, showing the recovery of the judgment. [This court was not authorized by law, and all its proceedings and judgments were void. Walt v. Thomasson, 10 Heis., 151, overruling Hefferman v. Porter, 6 Cold., 391.] But in the view we have taken of this case it can make no difference whether the money was paid upon a valid or void judgment. It was a subsisting debt against both, which Peres had become bound to Ensel to pay, and having failed to do so, if Ensel, either voluntarily or under compulsion, paid anj portion of it, he is entitled to recover the same. The defendants offered to prove there was a mistake in the settlement of the partnership accounts, which was properly excluded.

Judgment reversed and cause remanded.  