¶1But the Court (Thruston, J., absent,) refused the plea, saying that it was a matter of right to amend the declaration in that respect.
¶2It appeared in evidence that Mr. Burgess, one of the defendants, came into the concern in January 1822, but the plaintiff’s account included services rendered before that date, and for which that defendant was not liable, whereupon
¶3Mr. Key, for the defendants, prayed the Court to instruct the jury that the plaintiff could not recover any part of his account prior to that date; and that all payments made since that date are to be applied to the discharge of what became due after that date.
¶4The Court, however, refused to give that instruction, but instructed them, that as the only evidence of the said payments was the plaintiff’s account filed with and as part of his declaration, the whole account is to be received and read in evidence to the jury, as well in regard to what makes for the plaintiff, as to what makes for the defendant, but that the plaintiff cannot, in this action, recover for his services prior to the time when the *5defendant Burgess became a copartner with the other defendants; and that the jury are to decide, from the whole evidence before them, whether the payments credited in the said account were' made on account of services rendered by the plaintiff or after the defendant Burgess became a copartner in the concern.