
    BAKER vs. STEWART.
    Basteen Dist.
    
      February, 1836.
    
      , APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    Where the answer of the defendant admits the debt claimed, but avers it was contracted while he was in partnership with another person,'and there is no proof of the partnership, the plaintiff will recover as on a confession of the debt.
    The plaintiff, as surviving partner in the community existing between her and her late husband, and as natural tutrix of her minor child, sues to recover the balance of an account of three hundred and thirty-seven dollars due the community.
    The defendant avers, that at the time of the purchase of the articles in the account, he was in partnership with another person, whp should have been sued jointly with him. He denies the plaintiff’s right to recover, in the capacity in which she has instituted suit, or against him alone, and prays to be dismissed with his costs.
    The plaintiff proved her capacity and right to sue, and upon this evidence and the confession of the debt in the answer, judgment was rendered against the defendant in her favor for the sum claimed. The defendant appealed^
    
      Benjamin, for the plaintiff.
    
      Roselius, for the appellant.
   Mathews, J.,

delivered the opinion of the court.

This suit is brought by a widow, holding property in community with the succession of her deceased husbapd, and as tutrix of her minor child.

The answer does not deny the debt, but alleges that it was contracted by the defendant whilst he was in partnership with another person, &c. The right of the plaintiff to sue in the capacities assumed, is also denied. There was judgment for her in the court below, from which the defendant appealed.

Where the answer of the defendant admits the debt claimed, but avers it was contracted while he was in partnership with another person, and there is no proof of the partnership, the plaintiff will recover as on a confession of the. debt.

The record contains proof of the right of the plaintiff to maintain the action, according to the allegations of her petition ; and the answer was considered as a confession of the debt, in which we think there is no error. No evidence appears to have been adduced to prove the partnership alleged, and if there had been proof of this fact, it probably would not have altered the correctness of the conclusion of the court below; for if they were commercial partners, they were bound in solido.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  