Carter v. Douglass

GOLDTII WAITE, J. 1. The motion to quash the warrant and execution, issued by the justice of the Peace, was properly overruled, because the statute provides, that the Court shall proceed to try the claim de novo, without regarding any defect in the proceedings before the justice. [501] 2. It does not appear, that the proceedings sent up by the justice, were deficient in any manner; but, on the contrary, it was shown, from his examination, that all the papers appertaining to the case, had been transmitted in obedience to the first certiorari. But independent of this, we think the refusal to award a certiorari, when a diminution is suggested in such a case as this, is the exercise of a discretionary power; which is not the subject of revision in an appellate Court. _ 3. It is too clear, to admit of argument at this day, that common reputation cannot be allowed as competent evidence, to establish the existence of a co-partnership between individuals. It is nothing more than rumor, and may have no foundation whatever to rest upon. We are aware, that in two cases the Supreme Court of New York, has decided such evidence is competent. [Whitney v. Sterling, 14 Johns. 215; McPherson v. Rathbone, 11 Wend. 96.] But in neither is any other adjudication cited, to sustain what must be conceded to be, an innovation on the well established rule, that hearsay is inadmissible for such a purpose. (Roscoe Ev. 212.) If a co-partnership had been shown, then the admission of one of the partners, would be proper to charge the firm for the account; but, in this case, no such connexion was shown, and therefore, the admission was improperly given in evidence. The Court Court erred in admitting evidence of general reputation, and in allowing the admission of Carter, as against his co-defendants. Let the judgment be reversed and the case remanded.