This case was decided in February 1860.
Dewey, J.The plaintiffs were competent witnesses. The proviso in the statute of 1857, b. 305, “ that where one of the original parties to the contract or cause of action then in issue and on trial is dead, the other party shall not be admitted to testify in his own favor,” is not applicable to a case of a suit brought against a copartnership originally consisting of three members, one of whom has deceased before the trial, and on which trial the plaintiffs are offered as witnesses. The phrase “ one of the original parties to the contract ” must be held to mean the legal party to the contract. This must confine the exception to the case of a sole party to the contract on one side, or, in case of several joint promisors or copartners, to the case of the death of all of them. This was not the individual contract of any member of the firm, but ■ the contract of the firm, that was set up as the cause of action, and the party was the firm, and not the individual Kilbourn. If it were held otherwise and this proviso deemed applicable to all cases where any member of a firm had deceased, it would be equally applicable whether such deceased member of the firm had any direct agency in the matter *460or not. It would equally embrace a joint stock association of twenty as a copartnership of three. - The loss of evidence by the death of one of several partners might be very material, but it might also be quite immaterial. As a rule of practice, in the opinion of the court, the view taken at the trial was correct, and the plaintiffs were competent witnesses.
2. No objection exists to the instructions of the presiding, judge to the jury, as they embraced all the points of law arising upon the evidence, and were sufficiently favorable to the defendants.
3. The verdict was properly amended in form to correspond with that prescribed by the rules of practice. It was competent to allow the amendment asked for, discontinuing that portion of . the cause of action which sought a recovery on the check on the Grocers’ Bank, that being a distinct matter; and such amendment may be allowed at any time before judgment rendered in the action. Rev. Sts. c. 100, § 22. This amendment obviates all objection to the verdict for want of finding all the issues submitted to the jury. That it was competent for the court, where there are two distinct causes of action, and the jury find a verdict for the plaintiffs for one of them, and state that they cannot agree upon a verdict as to the other, to permit the plaintiffs to amend by striking out that portion of the plaintiffs’ declaration which embraces the claim upon which no verdict is returned, and to allow the jury to return their verdict generally for the plaintiffs, is very well settled. Hall v. Briggs, 18 Pick. 503 Soule v. Bussell, 13 Met. 436. Judgment on the verdict.