Murdock v. Martin , 20 Miss. 660 ( 1849 )

Mr. Justice Thacher

delivered the opinion of the court.

In this action of assumpsit upon an open account, based upon an attachment, the circuit court rejected the testimony of a witness, introduced by the plaintiff, where evidence went to show that the account sued upon was a copartnership concern between the plaintiff and defendant; and likewise rejected the testimony of another -witness offered by the plaintiff, to prove that the defendant had acknowledged and admitted hi'mself indebted to the plaintiff, upon the account, in a certain-sum.

The general rule is, that where one partner has a claim upon his copartner, for a sum of money due on account of the partnership, but not constituting the balance of a separate account, or a general balance of all accounts, he cannot recover by action, at law. Bonaffee v. Fenner, 6 S. & M. 212.

The witnesses offered in the present case could only have been admitted to testify upon its being shown that the account sued upon was one separate from the partnership account, or a general balance of the partnership accounts. In this particular there was a deficiency of proof upon the plaintiff’s part, and the circuit court rejected the testimony, upon the settled principle, that no account can be taken at law between two partners.

The judgment must be affirmed.