It appears to us that the evidence was admissible. The object of referring a case to an auditor is, that he may examine vouchers and other evidence, and state an account upon all matters in controversy between the parties which are the proper subjects of an account. In one alternative, to wit, no partnership, these items were all subjects of an account. The auditor therefore states the evidence upon which the partnership depends, without any opinion, for the consideration of the court, and finds the amount due to the plaintiff if no partnership should be established.
The court are of opinion that this report was admissible as a report under the statute. Jones v. Stevens, 5 Met. 373. Bui when admitted, it was prima facie evidence, it might be disproved, impeached or controlled by any other competent evidence. Rev. Sts. c. 96, § 30.
Upon the facts reported, it was contended that Mr. End was a partner with the plaintiff, and should have been joined. It is to be considered that, in order to sustain this defence, it must appear that Mr. End was in fact a partner with the plaintiff, *432and entitled equally with him to maintain the suit. It is not enough that parties hold themselves out or suffer themselves to be held out as partners ; this might be sufficient to charge them as defendants, either in contract, or for negligence or want of skill; but the same proof, when partnership was set up to prevent one from recovering, would wholly fail of establishing it Kell v. Nainby, 10 B. & C. 20. Lloyd v. Archbowle, 2 Taunt. 324. Mawman v. Gillett, 2 Taunt. 325 note.
The report states, some evidence tending to show that the plaintiff and Mr. End have in some instances used the joint signature, in court and elsewhere; but this is not unfrequent where two attorneys or counsellors act together in a particular case under separate retainers. We should think this evidence entitled to more careful consideration, were it not found as a fact, that Mr. End was an alien, and therefore could not be admitted as' a counsellor and attorney. Rev. Sts. c. 88, § 19. It is true that was partially modified by Si. 1852, c. 154, under which Mr. End might have been admitted, (and, as we happen to know, wras afterwards admitted,) yet it was prospective only, and was after the retainers in these cases must have been given to the plaintiff, and nearly, if not quite, all the professional services were done. As the services could not have been legally performed by Mr. End, and no action for them could have been maintained; in the absence of any proof tending to show that he acted, not as a qualified attorney and counsellor, but as an attorney in pais under a special power, the court are of opinion that no such partnership was shown by the evidence, as to prevent the plaintiff, a regularly qualified counsellor and attorney, as the court must officially take notice of, from recovering.
Exceptions overruled.