The opinion of the Court was delivered by
Huston, J,Jacob Hartzell brought an action of account-render against Steffen. This was not account-render at common law, *451but under the statute of 4 & 5 Ann. c. 16, § 27, which has been reported as adopted here, and is found in Roberts’s statutes, and recognized in Irwin v. Hanlon, (10 Serg. & Rawle, 220.)
The narr. expressly states the parties, to have been tenants in common of a lime kiln under the care and management of Steffen, • and demands an account of what he received more than his own share. The defendant stated himself to be entitled to one third.
By an act of assembly of the state, the jury sworn on the first issue must or may state an account, and decide the whole’case.
The errors assigned were that
1. The Court erred in admitting Thomas Ott, (who had been one of the tenants in common, while the kiln existed,) as a witness.
2. The Court erred in admitting his testimony.
3. In discharging the rule to show cause'why judgment should not be entered without costs: the verdict having been for a sum under $100, viz. for $5 06.
As to the first two errors. The general, if not the universal rule, is, that a person not a party on record,' nor interested in the matter trying, and for or against whom the verdict and judgment.cannot be evidence, is a witness.
It appeared in evidence that the kiln was on Steffen’s land; but that what is called the eye of the kiln was burnt or broken out, so that until rebuilt, the kiln cannot be used; in other words, the tenancy in common is at an end. This case was argued as if it had been a partnership in trade ; but in such case after a dissolution of the partnership, if there be an agreement that each of the partners shall receive certain debts, either partner is a witness in an action by the other partners against a debtor of the firm, whose debt has been allotted to such other partner or partners. Gow, 155. Austin v. Walsh, (2 Mass. Rep. 401.) Peake’s N. P. 21.
' But account-render under the statute is, in some essential particulars, different from account-render at common law, between parties in trade or against a bailiff. A bailiff may be liable not only for what he actually received, but for what he might have and ought to have received : a tenant in common is answerable only for what he has actually received beyond his .own share ; and this according to one case, (1 Ashmead, 136,) after deducting a just proportion of such expenses as were necessarily disbursed for the common estate. This action only settles the account between the parties to this suit,
It further appeared that Ott and Steffen had once had a suit which had been settled by them.. As to. the allegation that Hartzell may yet sue Ott, it can’t be pretended that the verdict and judgment in this case can be used by either party in such suit. Thomas Ott then comes within the rule, and was a competent witness; and under an act- of assembly giving the jury power to decide the whole case, without auditors, as they did in this case, his testimony was pertinent to the matter trying, ’
*452This Court has decided, (10 Serg. & Rawle, 227,) that a justice of the peace has not jurisdiction in account-render: which answers the 3d error assigned. The cases cited to prove that where the partnership began and ended with a single transaction, assumpsit will lie, have no application, because the case before us began in 1832 or 3, and ended about 1837, and consisted of many transactions during that time; and because those cases relate to partnerships, and this is a case of account between tenants in common, which as was said before, is in many respects different from the former.
Judgment affirmed*