Ellis v. Jameson , 17 Me. 235 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

Proof of certain declarations of Stevens, the witness and alleged partner, was rejected, and in our judgment properly. They had no tendency to prove, that Stevens was or was not a partner, nor were they adduced to contradict his testimony, nor would they have had that effect.

The writs instituted and judgments obtained by other persons against the alleged partners, including Stevens, offered and received in evidence, although objected to, were not legally admissible to prove the facts established by the judgments, in virtue of their rendition. Burgess v. Lane, 3 Greenl. 165, is an authority directly in point. The plaintiff cannot avail himself of a judgment, as such, by which he would not have been bound. It is upon another ground, that these writs and judgments were admissible in evidence. That certain persons have acted as partners, and have held themselves out to the world as such, is competent proof of partnership, and it is the usual evidence of the fact, where it is controverted. Upon adverting to the writs and judgments objected to, which are made part of the case, it appears that they were all rendered upon default. They were charged as copartners, acting as such under a certain partnership name. The default is a statute admission of the fact. In these suits, the alleged partners, including Stevens, being charged as partners by legal process, admit .the fact, and suffer judgments to go against them by default. It is not easy to conceive by what more positive act they could hold themselves out to the world as partners, or could more explicitly justify others in dealing with them as such. Had they contested the fact, and it had been found or adjudged against them, it would not have been evidence which could have been used by others.

It is contended, that the Judge erred in one of the reasons which he gave for the admission of this testimony; but that is quite immaterial, it being in our opinion upon other grounds legally admissible.

Exceptions overruled.