Majority
p. 218Sweeting and White, impleaded with Shepherd, Rider and Allen, against Turner. NEWYORK, May, 1813.
Headnote
Sh an action of assumpsit against A. ft B. *s partners, they pleaded that the promise, if any, was made by A. St B. jointly with one C., and not by A. & B., Sic.It was held, that the declarations of A. St B., or of C. were mot admissible evidence in support of the plea,
IN ERROR, from the court of common pleas of Oneida county. Turner sued the plaintiffs in error in the court below, as partners; but two only were taken and brought into court, who pleaded, praying judgment of the plaint and declaration, that the same may be quashed, for that the promises stated by the plaintiff, if any, were made by the defendants jointly with one Henry M‘Neil, and not by the defendants alone, &c. The plaintiff below replied, that the promises were made by the defendants alone, and not by them and M‘Neil jointly, and issue was joined thereon. A verdict was found for the plaintiff, on which the court below gave judgment.
The bill of exceptions stated that on the trial,' the defendants, in support of their plea, offered to prove, by the declarations of the defendants, and of JPJSeil, when they were all present together,
p. 219
previous to the time the plaintiff's action accrued, and before the commencement of this suit, that they all declared and acknowledged themselves aa partners, and held themselves out to the world as such. This evidence was objected to by the counsel for the pIaintifi~, and was ~verruled by the court below~
The evidence stated in the bill of exceptions was properly overruled. If the defendants and M‘Neil were partners, they might have shown it by the production of the articles of copartnership, or by the witnesses to the agreement. But for the defendants to offer their own declarations in support of their plea, was against the rules of evidence. The declarations of a party are good evidente against him, but he never can testify for himself, or use his own declarations in his own favour; and the declarations of M'Neil, he not being a party to the suit, were not evidence. He should have been produced and sworn.
judgment affirmed.