
    No. 13.
    BURTON agaiast FERRIS.
    
      Franklin,
    
    1820.
    ACTION ou book against A and B, as partners, non est as to A, B pleads in bar tha¿ be was not a partner with A ; verdict for plaintiff. On the trial before the auditor the ' verdict is no evidence that the articles charged in plaintiff’s book were delivered, on account of the partnership concern. The parties may be examined as to the fact, on whose account the articles were delivered.
   THIS was an action on book, in favor of the plaintiff against Andrew Bostwick and Jonathan Ferris ; the writ was returned non est, as to Bostwick. Ferris after having oyer of plaintiff’s book, pleaded in bar, that he was not partner with Bostwick, during the time embraced in the plaintiff’s account. Issue of fact, and verdict for plaintiff. George Robinson, Esq. was appointed auditor, who reported to this Court a balance in favor of the plaintiff of $5425, 41. Exceptions were taken to the report, which were decided as follows ;

1. The auditor decided that the defendant as partner was prima facie accountable for all those things, contained in plaintiff’s account, as it appeared on oyer, which were proper subjects of book'charge. The Court are of opinion this decision was incorrect; the verdict was conclusive only as to the fact of partnership between Bostwick and Perris, but furnished no' evidence, that any of the articles specified in oyer, were delivered to Bostwick on account of the partnership concern.

2. The auditor refused to perrnit the parties to be examined as to the fact on whose account the articles were delivered. This was also incorrect; the parties were competent witnesses each for himself, and each for the other, and ought to have been permitted to testify as to the quantity, quality, and delivery, of the articles, and also as to their vlaue, and on whose account they were delivered, whether on the partnership or individual account. Report set aside, and a new trial before auditor granted.

Note. This cause was tried and decided by one Judge, (Doolittle.)  