
    Box & al vers. Welch & al.
    
      1766.
    
    Entries in a Plaintiff’s Book of Account, charging two Defendants jointly, but not as Copartners are admissible, together with his Oath without previous Evidence of the Contract. Hutchinson, C. F., dissentiente
    
    
      Mr. Auchmuty.
    
    We never yet have extended the Rule of the Plaintiff’s Oath to his Book so far as this Case would carry it. The Oath of the Party is allowed in any Case only from Necessity. You must bring Proof of the joint Contract and Sale to both the Defendants, and then your Oath and Book will be good Evidence of this Charge, We admit the Plaintiff to his Oath, when the Action is brought against one, because he may come in and defend himself. He can never prove a Negative, vizt, that he did not contract. In the Cafe of known Partnerships, possibly, we may have gone so far as to admit the Plaintiff to his Oath, because here each usually contracts for the other, and the Contract of one for both shall bind both; but at this Rate it will be in the Power of any one '•to bind who he pleases.
    
      Mr. Otis.
    
    ’Tis agreed, if the Charge was against one, the Plaintiff might be admitted to his Oath; Why not, when it is against two ? Either of them may defend himself as well now, as when charged Angle. Any Evidence that would discharge in one Cafe, will in the other; and it has ever been the Custom, as I conceive, in such Cases to admit the Plaintiff to his Oath.
    
      
      
        Quare.
      
    
   INDEBITATUS ASSUMPSIT on Account annexed. The Plaintiff’s Book and Oath were offered as Evidence to the Jury, to which an Objection was made by Mr. Auchmuty — the Charge Handing “ Dr. J. W. & J. W. Jr.,” and not “ J. W. & Co.”

Ch. Juftice.

Suppose, Mr. Otis, that you and I were charged together, — must not some Evidence be given of the Contract with both, before the Plaintiff can be admitted to his Oath?

Mr. Auchmuty.

And if your Honour and Mr. Otis can be bound in this Manner, why not me and twenty more ? If this Rule is established, some of your sharp Folks, who slick at Nothing, will never lofe their Debts, — ’tis only clapping in one or two substantial Men, and your Debt’s secure. Besides, if you admit his Oath, we can never prove a Negative.

Mr. Otis.

Prove a Negative! He may prove Anything in Discharge, now, as well as when one is charged, and he pleads, he never promised. As to the charging one, two or three, — you may charge three Million, and the Plaintiff’s Oath and Book shall go in, as Evidence to the Jury, who will judge of that and all Circumstances. The most we have contended for in these Cases, has been, when the Charge was against A. B. & Co., we, I believe, may have gone so far as to make the Plaintiff show the Company, before we admitted his Oath. But this is not our Cafe; we don’t pretend a Company. The Charge in our Books Hands against J. W. & J. W., Jr. We say they jointly bought these Goods, and that we delivered the Goods upon their joint Credit; and we offer our Oath and Book to support our Charge, the only Evidence that ever has been, or can be expedited.

Four fudges against the Chief Justice,

that the Plaintiff’s Oath and Book should go as Evidence to the Jury, who would judge of all the Evidence with all the Circumstances.

The Plaintiff was sworn accordingly.  