
    Abram Allen, survivor of Ephraim Allen, deceased plaintiff in error, against Anthony I. Blanchard, defendant in error.
    ALBANY,
    Dec. 1827.
    Partners in the practice of physic are within the law merchant, which excludes the jus accrescendi between traders.
    The widow of a deceased partner is not a competent witness for the surviving partner, "in ah action by him as Such.
    Nor'Will a release from' her to him of- all her interest in- the-particular claim render her competent. Whether such-a release would har her claim to a share of the sum recovgred, it not being to the personal representatives of her husband? Quere.
    
    Where'a Suit'is brought by -a- surviving "partrtér'-as: such, if het falls, the "éstate Of the deceased, partner is liable to contribute to'the costs ; and the assets of a deceased partner are liable for the debts of the firm, if- they cannot be collected of the survivor.
    On error from the supreme court. Abram Allen, as survivor of AbramEphraim Allen, two partners in the practice of - physic, "sued Anthony I. Blanchard in a justice’s court of the county of Washington ; and -declared as such survivor, for- medicine and attendance by the -firm, in the life time of 'Ephraim,. Plea, ■ non -assumpsit. Judgment for the plaintiff ; - from 'Which the defendant -appealed to the G. P. On the trial there, "Mariam Allen, the widow of Ephraim Allen, was offered as a witness for the plaintiff; but objected to by the-defendant as interested. She then released Abram. Allen, the plaintiff below, thus: “ of and from all and every sum or sums of money which he may recover or obtain, by suit or otherwise, from Anthony I. Blanchard, and which he the said *Anthoxy may owe to the said Abram Allen, as survivor of A. & E. Allen, as partners in the practice of physio and surgery, and which, but for this release, I might be entitled to as the widow of the said Ephraim Allen, deceased. The release was objected to as insufficient to render the releasor a competent witness ; and the court of common pleas sustained the objection. The plaintiff below offering no further evidence, the C. P. directed-the jury to find for the defendant below, which they did. The plaintiff below excepted to the decision excluding the witness ; the cause was brought to the supreme court, by writ of error in behalf of the plaintiff below; and that .court affirmed the decision of the C. P. He then brought error to this court.
    The reasons for the- decision of the S. C. were now assigned as follows, by
    Sutherland, J. The custom or- law of merchants, excluding survivorship, extends to all traders. Whenever there is a joint undertaking in the way of trade, &c. the jus accrescendi has no application. Thus in Jeffereys v. Small, (1 Vera. 217,) two personshaving jointly stocked a farm, and occupied it as joint tenants, a bill was filed to be relieved against survivorship, one of them being dead. The lord keeper said, if the farm had been taken jointly by them, and proved a good bargain, then the survivor should have had the benefit of it; but as to a stock employed in the way of trade, that should in no case survive. (Coke Lit. 182, a. Lit. s. 282. Viner’s Ab. Survivor (D.) Jac. Law Die. Joint Tenancy, &c.) (a.) The action survives, though the interest does not. (Watson’s Law of Partner ship, 298, 450, &c.) The declaration states the defendant below, to have, been indebted to the plaintiff, as survivor of Ephraim Allen, for medicine and attendance, &c. This is sufficient to constitute them merchants or traders, so as to exempt them from the op eratiesa of the jus accrescendi, which is now regarded as odious. *A moiety of the Recovery, then would belong to the estate of the deceased partner, of which his widow would be entitled to her distributive share. A witness is incompetent to increase the fund, out of which he may receive a dividend, or in which he may, in any way, participate. (1 Phil. Ev. 512. 5 John. 258, 427. 1 Mass. Rep. 239. 2 Day, 466. 1 Camp. N. P. C..381. 2 Camp. N. P. C. 301. 2 New Rep. 331.)
    The assets of a deceased partner are liable for the debts of the firm, if they cannot be collected from the survivor. (2 John. Ch. Rep. 508. 1 Cain. Cas. Er. 122.) But so far as the interest of the witness resulted from the tendency of her testimony to increase the fund in which she was entitled to share, it was capable of being removed by a release. The case of Wood v. Williams, (9 John. 123,) is precisely in point to show that the interest of the witness in this case might be released. It was a present right, to take effect in futuro, and such a right may be released. (Coke Lit. 265, a.) But here there was no privity between the witness and the plaintiff in the cause to whom the release was given ; she could in no event have any claim or right of action against him, in respect to this demand. The personal representatives of the deceased partner were entitled to his share of what might be recovered, and it may admit of very serious doubt, whether the release would be available to the plaintiff, in an action brought by those representatives against him; and if it could not, it is very clear, that it could not prevent the widow from recovering her distributive share from the representatives of her husband. (Com. Dig. tit. Release, B.)
    But if the plaintiff should fail in this action, the estate of the deceased partner would be liable to contribute to the costs, and the witness, in that point of view, had an interest in the success of the suit, not effected by the release, and which, of course, rendered her incompetent. She was therefore properly rejected.
    
      S. Stevens, for the plaintiff in error,
    stated the following points.
    I. The plaintiff is entitled, by the jus accrescendi, to all the partnership debts. Mariam Allen was, therefore, a competent witness without a release.
    *2. If the witness had any interest in the subject matter of the suit, it was a present right to take effect in futuro; such a right may be presently released; her release, therefore, rendered her a competent witness.
    
    3. A possible or contingent interest may be released, and if the person to whom the release is made cannot take the thing released, the release will operate by way of extinguishment.
    4. But the release from the witness in this case was operative to the plaintiff, and conveyed to him her right to that demand.
    5. The plaintiff was, therefore, prosecuting the suit for his sole and only benefit, and he alone would be responsible for the costs if he failed.
    
      J. Willard, contra,
    stated the following points:
    1. The witness offered was interested, because in the event of the plaintiff’s recovery, she, as widow of the deceased partner, would be entitled to one third part of the share belonging to the estate of her husband, by the statute of distributions.
    2. The witness -was interested, because, if the plaintiff failed in the suit, the costs consequent thereon would be a charge on the partnership fund, and would diminish, pro rata, her distributive share therein.
    3. The interest could not be released, in the first case, because it is a mere contingent interest; and in the second, because the interest depending on the. witness’ loss, is not the object of a release from her. ’
    
      4. If the interest Contemplated in the first point is- suscep tibie of being released, it was- not discharged by the release given in- this case, it not having been given to' a person-capable of taking a release.
   Jones, Chancellor,

was in favor of affirming the judgment below, for reasons substantially the same "as assigned by that court.-

Jordan, Senator; desired to be excused' from giving any opinion, as. he was counsel in a cause involving precisely the same question as this. But the court" disallowed his excuse.-

*For affirmance, Allen, Dayan, Enos, Gardiner, Haight,- Jordan,- McCarty, Stebbins and Waterman, Senators.-

For reversal, Elsworth, Hart, Lake, McCall, McMartin, Smith, Spencer and Wilkeson, Senators.

Judgment affirmed. 
      
      
        ) Elliot & Brown had a joint demise of a farm the profits of which they divided annually. Held, on the death of Elliot, that his moiety went to his executors. (Executor of Elliot v. Brown, Cor. Ld. Thurlow, July 25th, 1791, 1 Raithb. Vern. 217, note 3.
     