
    Christopher Gibbs Champlin, as Executor of Christopher Champlin, against James Tilley and William Tilley.
    Letters testa-“g¡]tar-Yunfiet' the authority oí one state are not available in another. But if te an action brought by an executor, on a cause of action arising in the life-time of the testator, the defendant plead the genera! issue, the plaintiff cannot be required, on the trial, to produce any tetters testamentary.
    April, 1809.
    THE plaintiff, in his declaration, stated, “ that at New-Port, the defendants, by said William Tilley, purchased af said deceased a quantity of hemp, to be manufactured . at their rope factory m A cw-London, on a credit of four months, and to secure payment thereof, the defendants, at said Mew-Port, by said William Tilley, one oí said firm and company, and then joint mechanic and trader with said James Tilley as aforesaid, made, executed, and to said deceased, then in full life, delivered a certain writing or promissory note, in the words and figures following, viz.
    
    “We, William Tilley and company, of Mew-London,promise to pay Christopher Champlin, of Mew-Port, or his order, within four months from the date hereof, five hundred and eighty dollars, value received. Witness our hands, Mew-Port, January, 31st, 1804.
    “ William Tilley is? Co.
    
    
      “ Witness,
    ‘‘ George G. Whitehorne
    
    When the cause came on for trial, William Tilley, who had failed and absconded, was defaulted; James Tilley, the father of William, and a man of property, ap' peared and pleaded non assumpsit.
    
    
      Daggett, for the defendants,
    called upon the plaintiff’s counsel for evidence, that the plaintiff was executor to the deceased. He said, that unless this were shown, there was no propriety in proceeding any farther in the cause. He stated, at the same time, that no letters testamentary, Issued by any authority out of the state of Connecticut, could be admitted as evidence before the courts of this state, according to a decision of the Supreme Court of Errors, at their last session in Hartford.
      
    
    
      Goddard, for the plaintiff,
    replied, that he was somewhat surprised by the motion, though he apprehended, that the defendant was too late.withút, and tbit advantage ought lo have been taken by plea in abatement, as the want of lawful appointment to be executor is a disqualification to sue in this case.
    Livingston, J. having inquired, whether there was a proferí of letters testamentary, was answered in the negative, and that it was not common in our practice to make such a proferí, the mere naming the plaintiff as executor being considered as sufficient to enable the defendant to plead ne ungues executor.
    
    His honour then observed, that it must undoubtedly be good law, that letters testamentary should be used only within the jurisdiction under which they were issued, and that he should have no doubt, in a proper st ige of the proceeding, as to requiring the production of such letters issued under the authority of the state of Connecticut: and he did not see but the plaintiff in this case must produce his claim to the character of executor, if the defendant required it.
    At the request of the plaintiff’s counsel, the question was permitted to rest till afternoon, as he wished to look at authorities, that he might be able to show that the defendant was too late in his motion.
    This was assented to by the court.
    .At the opening of the court in the afternoon,
    
      Goddard proceeded to show, that on a plea of non assumjmt, when the case is entered upon before the jury, it in too late to call for letters testamentary. lie cited, as in point, Peake’s Ev. 342. last edition, and Marsfield v. Marsh, 2 Ld. Raym. 824.
    
      Daggett, in reply, stated, that in Edwards v. Stapleton, Cro. Eliz. 551. Browning v. Fuller, Cro. Jac. 299. and Cutís v. Bennett, Cro. Jac. 400. it was decided, that a profeit of letters testamentary is matter of substance. The reason of these decisions must be, because the plaintiff may be called: upon to prove them to be legal and genuine. .
    The court said, that they were satisfied by the authorities read by Mr. Goddard, that the plaintiff could not be called upon, in this stage of the proceeding, to prove his claim to the character of executor.
    Livingston, J. said, that he was of a different opinion in the morning,but was convinced by the authorities. As to the cases read by Mr. Daggett from Cro. Eliz. and Cro. Jac. it might well be matter of substance, that pvofert of letters testamentary should be made; that the plea of ne ungues executor may be tendered, while, nevertheless, the plaintiff could not be compelled to prove himself executor on trial to the jury.
    in ⅞11 acüo* against A. and JB.ii s partners, on a com ract executed in the partnership name, j-u suffered a default, and B. pleaded the general issue: Held, that letters written by in the partnership name, could not he read in evidence by B. to show, that he was not a partner with ¿L
    
    In the course of the trial to the jury, the counsel for the defendant read several letters from the testator, Christopher C/iam/i/m, to the defendant, from which it appeared, that the testator did not consider the defendant, Janu s Tilley, as a member of the firm of William Tilley & Co. In one of these letters, six other letters, purporting to be written by William Tilley tsf Co., and promising payment, were enclosed; and with them, the note on which this action was brought. The counsel for the defendant were proceeding to read these enclosed letters; but an objection being made,
    The Court said, that the letters, whether written by William Tilley or not, were - entirely irrelevant; though. the letters of the testator were good evidence to prove that he did not suppose James Tilley to be a partner.
    In such case, conuin-"’S', fntries made by *5. and B. may o*o tf) tll0 illF^ »s evidence of-a partnership.
    In an ac&&. tract ^"⅞⅛ tw0> where one has suiter-ed a default, ⅛ Obtained must be entered up fsr both.
    - ... An account book was produced by the plaintiffs to prove, that James Tilley was connected with his son William in business. In this book two entries were ⅛. _ < . found in. the hand-writing of James Tilley, many in the - ' hand of William Tilley, and some in the hand of other persons.
    The counsel, for the defendant objected to reading to the jury any charges made in, the hand of William Tilley.
    
    
      
       Vide Riley T. Riley, ante, <¾-.
    
   By the Court.

The book must go to the jury, as it has been proved, and indeed conceded, that James Tilley made a few entries in it. The jury are to decide Whether the book, as it is, amounts to any proof of partnership.

The jury found a verdict for the defendant.

His counsel then moved, that judgment should be entered up for both defendants, though one of them had been defaulted.

The Court said, this was the correct mode of pro-seeding; for if the jury had found, that one defendant assumed and promised, and the other did not. iudsr- . , , ,. , ’ J b ment must have been entered up for both, the declaration being iounded on a joint promise only.  