The questions presented for revision, arose on the trial of an appeal, in the Count}'' Court of Greene, (rom a judgment of a justice.— The plaintiff in error was also plaintiff, in the County Court. The action was assumpsit, against the .defendants, as copartners, on a promissory note, giv.en by them, as such.
It also appears, that thirty-nine other cases, similarly situated, were, at the same time, pending in the same Court; and that they are all dependent upon the principles of decision, which must, govern this. The trial was had on ihe general issue of non-as-sumpsit, jointly pleaded, by the defendants. A verdict was found, for the defendants.
The questions made, grow- out of the bill of exceptions — so much of which, as is necessary to a de.cision on the law, governing this case, is as follows:
*38The plaintiff having ini rod need the evidence, on which he, at first, proposed resting his case, the de-feiid.anls introduced theirs — then the plaintiff intro-dil c-ed rebutting- tosli iiiony. /Tier lie had closed, the defendants insisted on examining J. A. Beal, a witness. The plaintiff objected, because the. evidence was closed. The Court overruled the objection, and suffered the witness to be examined — on ihe ground that, in the rebutting evidence, new facts had come our.
The exceptions further show, ibat the defendants attempted to prove payment of all the notes by a sale of goods made by the*rn to the plaintiff, in discharge thereof. That the goods were immediately' resold by the plaintiff, to the defendant, Childress; and that, he was to pay for them, in notes, with certain securities.
The plaintiff insisted, that, there was no actual delivery of the goods — no separation from the mass, nor invoice delivered to him.
The defendants contended, that. Biker was ihe agent for the plaintiff, in ihe transaction ; arid that he acted on behalf of the plainluif. No express authority was shewn, but the defendants offered evidence of his acts, and that, he was reputed lobe such agent. The goods remained in ihe . possession of Childress, and were sold by him, for his own account ; and the notes were not tendered, or delivered, by him, for the goods, to Mulcliius, according to the terms of the supposed purchase.
On objection, by the plaintiff, lo the admissibility of any evidence, of acts of agency by Baker, because, being a defendant, be could not- be an agent for the plaintiff — the Court, ruled, that, he might, be ;m agent for the plaintiff, (if there was a sale, in fact, *39of ihe goods, in ihe first, instance,) in relation 1o Ihe subsequent transaction, between ihe plaintiff, and defendant, Childress, and that, his ads. and lo what extent. the plaintiff had assemed to them, might, be taken inlo consideration, and were proper evidence, conducing to prove a fraudulent combination between Baker and the plaintiff.
Tiie plaintiff proved, that Biker, several times, admitted, that the sale had nol taken place, and lliat. ihe debts were still due.’ But. the Court suffered these admissions to go as evidence, only so fiir as related to the first, contract ; but. not, to shew, that Childress had not complied with the terms of the purchase, alleged to have, been made by him, of the goods of plaintiff. The Court also admitted evidence, offered by the defendants, (the same being ob-' jected to by the plaintiff.) of the declarations of Baker, in a conversation, distinct from any concerning, which the plaintiff had given evidence: 1 hut the reason the pldutilf would not receive the notes of Chil-dress, for ihe goods, was, that, he, Baker, wanted to-, get the goods, himself’; and that lie would not receive the notes — and thus it was, that the notes were nut. tendered.
It further appears, that, the plaintiff offered in evidence, an answer in Chancery, made by Baker, to-a bill against, him, by Childress, which- would have-proved, that the former thereby ail milted, that the debts, sued for, were for money loaned. That the sale of the goods had not taken place. That Chil-dress had failed to comply. That he was not ihe agent of the plaintiff; and, that the debts were still due, from himself, and Childress, as co-partners. — - That the Court, on motion of the defendants, ex-*40eluded all parts of said answer, from the jury, except. so much as admitted the original existence of the debt; and that it had not been paid by himself and Childress.
The. Court, also, (after the same was objected to,) admitted evidence, on the part of the defendants, to discredit the admissions of Baker, on the ground, that if there was a combination between him and the plaintiff, the evidence was legal.
These several opinions and decisions of the Court, in admitting and rejecting the evidence, are assigned as erroneous.
But little is necessary to be said, in disposing of the first exception, which relates to the time at- which part of the evidence was received. it is considered essentially necessary and proper, that a general rule of practice should prevail, respecting the'' time and manner of introducing and closing evidence; and that it should be such as was contended for, by the plaintiff. That after a plaintiff at. nisiprins, has introduced, his evidence and rested his case, and the defendant has followed with his, then the former should introduce his rebutting testimony ; and the examination should close. Yet it is impossible to provide, by any infallible rule, in this respect, for the peculiarities and emergencies of every case. Much must necessarily depend on the sound discretion of the presiding judge. We must often make the routine of business subservient, to the justice of particular cases.— It may unavoidably happen, that the rebutting evidence, (as was thought by the judge here,) may demand resistance or explantion, in order to reach the justice of the case: or, this necessity may arise from the'artifice of the plaintiff, in withholding evidence *41that might have been offered in the first instance.After making out a prima fade case, he may safely do this, in anticipation of the defence arid of his right to offer rebutting evidence. Hence the- necessity of allowing to the presiding Judge a judicial discretion on this point, to be used for the advance-mént of justice; but so regulated as to avoid embarrassment, as far as practicable, and prevent surprise or injury to either party. As to this exception, there' is believed to be no error.
All the exceptions relative to the admission and rejection of the evidence offered, may be embraced in one general view of the subject.
The opinion of the Court was in substance, that if there was a sale in fact of the goods by the defendants to the plaintiff, in the first instance, then in relation to the subsequent transactions, Baker' might be viewed as the agent of the plaintiff, and the latter con Id "be held responsible for his acts and. declarations as such ; also the Court rejected the evidence of Baker’s answer in chancery to a suit by Childress, when offered by the plaintiff, to prove' his admission of the continued existence of this' debt, and that there was no such agency as was contended for. Further, the Court permitted the defendants to introduce proof to discredit the admissions of Baker, one of the defendants.
The first enquiry on this branch of the subject is,whether or not, it was competent for these defendants, when sued as partners, and in a trial, on the' general issue, in which they had joined, to avail-themselves, as evidence, of the acts, declarations, or' admissions of one of themselves, in opposition to the' *42plaintiff’s demand; and as respects the declarations or admissions, when they were in connection with any conversation, concerning which the'plaintiff had given any evidence. The mere statement of the question in its simple form, would appear to suggest the answer. But the subject has been involved in some obscurity, by the attempts to connect it with an agency of Baker, for the plaintiff, and with suggestions of fraud and combination between him and the plaintiff.
It is contended, that Baker being agent for -the plaintiff, any acts done or admissions made by him, as such, were tantamount to admissions by the plaintiff himself. But the objection still exists, that this is a suit at law in which Baker is a defendant; that the evidence was offered on the part of the defendants ; that the question, whether the sale of the goods had been consummated, in the first instance, was"to be tried by the same jury, and under the same issue, which was to convict or discharge Baker from the suit, as well as his co-partner; and that all the evidence offered to prove the last, as well as the first sale of the goods, tended to the same result. Both the defendants must have been convicted, or neither— consequently Baker had a direct, interest in the event of the suit. If the supposed agency could exempt him from the character and incapacity of a defendant, then, in as much as he was not the plaintiff, nor liable, as such, for cost, why could he not have been sworn as a witness for the defendants? A mere agency does not render the individual incompetent as a witness; and his testimony would have been more satisfactory than his casual declarations. The circumstance that other testimony had been *43previously introduced, with a view to prove the agency, can not materially vary the case. The Court had no authority, nor did the Judge directly assume the right, to determine whether or not the agency had been proved, yet he admitted the proof which he considered evidence only on the supposition that the first sale had been consummated, so as to admit of the agency. H nv can it be known that the jury did not arrive at the conclusion, that the first sale was consummated, and that the agency was created, from Baker’s testimony. Among other things the delivery of the goods to Hutchins or his agent., was necessary to the execution of the contract. Baker’s evidence may have been the only or main proof of any such delivery.
Without deciding whether a debtor, in any case, is capable of receiving an agency from his creditor, to transact any business, having the effect to discharge or satisfy the debt, which question is not directly before us, we have no hesitation in saying, the proof of Baker’s acts and admissions in this case, was improperly admitted—that they were not evidence on the trial of an issue, in favor of the defendants, of whom he was one a
The same principle of decision by which the Court below was governed, on the question already considered, appears to have extended its influence into the two remaining points of exception; it probably led to the rejection of Baker’s answer, in chancery, to the suit against him by Childress, when offered as evidence, by the plaintiff. The admissions of one partner are not evidence to establish the existence of the partnership; but after its existence has been otherwise proven, or admitted, “ the act *44or declaration of one, relating to-the subject matter of the partnership, will bind all.”a The admissions of Baker, by his answer, ought to have been received as evidence, to prove the existence of the debt, his denial of his agency, &c.
A consequence of the same doctrine is, that the defendants ought not to have been permitted to introduce proof to discredit the admissions of Baker, which had been given in evidence against them by the plaintiff. The judgment must be reversed, and ■the cause remanded for further proceedings.
Pa. on A. 2, 10, 32, 204; 2Cam Rep. 203 Gow on P. 131-2-3— Liv on A. 416.
G. onPart.