Where there is a partnership demand, all the partners should join in the action, for the contract and undertaking is joint, and if in fuch cafe, one partuer only brings the action, the defendant may take advantage of it at the trial, for the contract is not the fame : but in cafe of a tort, this must be pleaded in abatement. But if an action of affumpfit is brought against one partner without joining the other, the defendant must take advantage of it by pleading the matter in abatement, for if he was allowed to give it in evidence, it would be a fource of endlefs litigation unless the plaintiff knew all the parties. But when the defendant pleads it in abatement, he fets out all the partics, and the plaintiff knows against whom to proceed. 3. All contracts with partners are joint and feveral, and every partner is liable to pay the whole, and in what proportion the others are to contribute, is a matter among themselves; the plaintiff may however, bring his action against one, who may by plea in abatement, compel him to join them all--and if he brings his action against all and recovers, he may collect the execution of one only. Of the Declaration. When the debt is to arise from feveral acts to be performed at different times, each performance is a diftinct duty, and the action may be then brought. Where the affumpfit is founded on an agreement, in which fomething is previously to be performed by the plaintiff, on condition of which the defendant undertakes to pay, it is neceflary for the plaintiff, to aver in his declaration either a general performance of his part, or that he is ready to do it, and alfo notice by request to the defendant. Where the defendant is chargeable on a collateral matter, and not on a mere debt, there ought to be a request precitly alledged in point of time--but where the affumpfit is for a preceeding debt, the general ailegation of, often requested, is fufficient; for the bringing the action, is a requeft. Where there is a promife to pay money ondemand, it becomes inftantly due, and action will lie without a fpecial demand-but where the promife is for a collateral article on demand, it is neceffary to aver and prove a fpecial demand at the trial. 8 In actions of affumpfit, it is necef fary @ 2 Strang. 820. b5 Barr. 2611. 2 Black. Rep. 95 c2 Black. Rep. 947, 696. 5 Burr. 2612. dr Ep. Dig. 128. e a Burr, 899. f Cro. Jac. 133, 523. g Idem, 206. fary to fet out for what the debt became dee, and not generally, that the defendant became indebted and undertook 10 pay, • In actions upon paro! promifes, the day of the promife laid in the declaration is not material; 6 bat where the day makes a part of the contract, and fo is off bfance, it must be preciftly fet forth, and the affing of a diferent day in the replication, would be a departure. As is the cafe in an action upon a note, where the day is material and of fibdance. But in an action upon a parol promife, it is not neceffary to prove the promife to be made at the time laid in the declaration. As where the promife was laid in Decmber 1793, and proved to be made in December 1792, the difference in point of time was held to be immaterial. CHAPTER FIFTEENTH. OF THE ACTION OF BOOK DEBT. THIS action is known only in this state, and is fingular in two refpects-as to the form, and as to the admiffion of the parties to teftify as witneffes. Tho not brought for the recovery of a thing certain, yet it has affined the fhape of an action of debt. The form is, in a plea that to the plaintiff, the defendant render fuch a fum, which he owes by book, and has never paid, tho often requested, without fetting forth any promife. The this action lies only in cafes where affumpfit will, yet contrary to the principles adopted in that action, the parties are allowed to be witneffes. Our judical history is fo feanty, that it is impofible to trace the origin of this action--but it is probably co-eval with our government. The first mention of the admiffion of parties to be witneffes, is in a flatute paffed in the year 1714, from which the prefent is copied. It is there enacted-that in all fuch actions, (refering to actions of book debt,) wherein the fum in debate, fall be fuch as fhall be tried by a jury, the jury fhall well weigh and confider the credit of the parties, admitted by the court to takė the oaths in or out of the court, in fach cafes and fuch forms as teftimonies in other cafes in this government are by law allowed, together with any other evidence given them, and all the other circumftances Gordon, vs. Peynt, &c. Supe circumftances thereof, and upon their oaths, fhall give their verdiet thereon, for what they fhall find jusly due upon the evidence. From the expreffions made ufe of in this ftatute, it seems probable that courts had previously admitted the parties to be witneffes, without the exprefs authority of a ftatute-that questions frequently arifing, refpe&ing the credit which ought to be given to the oath of the parties, a ftatute was made not to authorife the court to admit them as witneffes, but to function the practice, and to afertain what regard should be paid to their teflimony. · · It is probable, that the idea was derived from the practice of the courts of chancery in England, and our ancestors with that Spirit of innovation and improvement, which is fo manifeft in their early laws, might have fuppofed that if it was rational, that the parties fhould be admitted to telify in a court of chancery, where the difclofure of facts within their own knowledge rendered it neceffary, that the fame reafon would authorife their admiffion to testify before courts of law--Perhaps the neceflity of adopting this principle was more urgent here, becaufe at that time the general affembly was the only court of chancery, and it must have been an intolerable hardship to have been obliged to apply to that tribunal in all cafes of book debt, where the oaths of the parties were necefiary to a difelofure of facts within their knowledge. This action has therefore fuperceeded the neceffity of applications to courts of chancery, in all matters of account-and may be confidered as a fuit in equity, fo far as refpects the mode of proof. As to the nature of this action, it may be remarked that affumpfit will lie in all cafes where book debt will-but that book debt will not lie, in all cafes where affumpfit will. It is difficult by any precife principles to afcertain the bounds and extent of this action. It may generally be faid, that it will lie only for fuch articles fold and delivered-for the ufe of fuch perfonal things, as are let and hired-and for fuch fervices done by one perfon for another, as are ufually in the ordinary intercourfe of mankind charged on book, and wherein the law implies a promife, that the purchaser of the goods will pay to the feller, as much as they are are reasonably worth, and that the performer of any fervice, fhall receive as much as he reafonably deferves. The merchant and the farmer charge on book, the articles they fell on credit, the lawyer, phyfician, mechanic and labourer, in like manner charge their fervices. So if a man lets his horfe, or any other article of property, he charges the ufe on book-and in fuch cafes, there is no queftion but this action lies. A tort, or any confequence of it, cannot be the fabject of this action-nor can a contract as fuch-but where one perfon contracts with another, to do certain fervice at a certain price, the fervice (tho not the contract) may be charged on book, and on proof of the contract, a recovey may be had of the fum agreed to be paid. Where the plaintiff charged on book, thirty fhillings paid to one perfon for the ufe of another, for which he alledged, that he had the defendant's promife, to pay an equal fum in theep, it was adjudged that this action would not lie. It has been adjudged, that intereft on a book, may be recov ered in this action, where there is an exprefs, or implied promife to pay it. That the established custom of merchants to exact intereft after a year's credit, being known to the defendant at the time of obtaining the credit, the law will prefume an undertak ing to allow it; that where there is an exprefs promife for the payment of intereft, it must be proved by other evidence than the party. This action will lie for betterment done on lands, at the requeft of the owner-but will not lie for the ufe and rent of lands It will not lie for a mistake in a former fettlement on book. Where no price has been agreed on by the parties, the plaintiff fhall recover for his articles, or fervices charged, what is reafonable and juft, according to the going price at the time of the fale and the performance of the fervice.-In which cafe, any fraud, or deception in the goods charged, may be taken into confideration, in the estimate of their value. Where there is an exprefs agreement for a particular price, the plaintiff will be allowed to recover that fum-but ought to prove the agreement, by other teftimony Idem, 209. Idem, 158. d Idem, 150. Kirb. Rep. 289. mony than his own-It has been held, that where goods have been fold and delivered, at a certain price agreed on by the parties; that in this action, for fuch goods, the defendant may not set up for his defence a fraud, or deception in fuch goodsbut fhall be liable to pay the price agreed, and must have recourse, to his action for the fraud, becaufe fuch queftions ought not to be tried in this action. It has been decided, that an order, tho expreffed for value received, is a proper charge on book, becaufe an article frequently paffing among mankind in their commercial intercourfe, and cuftomary to be charged on book. In an action on book against an executor, the account exhibited was forty-five pounds, paid to the deceased on a note, for which a receipt was given and loft. The whole money had been recovered in an action on the note. And the question was, whether this was such a book debt as the plaintiff might be admitted to prove by his own oath. The fuperior court adjudged that the plaintiff might be admitted to teftify, which judgment on a writ of error was afterwards affirmed in the fupreme court of errors. This decifion is clearly against the first principles, on which the action of book debt is grounded. The neceffity of the cafe introduced the practice of admitting the parties to teflify-but their bath only is not to be confidered as all the evidence in the cafeThe books which are kept by the parties, are a material and effential part of the proof, and much depends upon their being kept fairly and regularly, with proper entries, made from time to time, according as the articles were delivered, and the fervices. performed-There can be no question, but that money is a proper charge on book-when delivered in the ordinary courfe of dealings but in this cafe, the money was not delivered, to be charged on book, and was not originally fo charged; but the plaintiff failing to apply it on his note charged it on book, and brought this action merely for the purpofe of coming in himself to testify, because he had not other proof, when it was clear, that the claim was a proper subject for indebitatus affumpfit. It cannot be warrantable to admit the party, to change the form of his action for the purpofe of becoming a witnefs, when by the gene Ꮓ a Storrs, vs. Storrs, Sup. C. 1789. of M'Donald, Sup. C. 1789. ral 6 Hard, vs. Fleming: Executor |