¶1having inquired whether there was a profert of letters testamentary, was answered in the negative and that it was not common in our practice to make such a profert, the mere naming the plaintiff as executor being considered as sufficient to enable the defendant to plead ne unques executor.
¶2His honor then observed that it must undoubtedly be good law that letters testamentary should be used only within the jurisdiction under which they were issued, and that he should have no doubt, in a proper stage of the proceeding, as to requiring the production of . such letters issued under the authority of the state of Connecticut; and he did not see but the plaintiff in this case must produce his claim to the character of executor, if the defendant required it.
¶3At the request of the plaintiff’s counsel, the question was permitted to rest till afternoon, as he wished to look at authorities, that he might be able to show that the defendant was too late in his motion. This was assented to by the court.
¶4At the opening of the court in the afternoon, Goddard proceeded to show that on a plea of non assumpsit, when the case is entered upon before the jury, it is too late to call for letters testamentary. He cited, as in point, Peake, Ev. (Last Ed.) 342, and Marsfield v. Marsh, 2 Ld. Raym. 824.
¶5Daggett, in reply, stated that in Edwards v. Stapleton, Cro. Eliz. 551, Browning v. Fuller, Cro. Jac. 299. and Cutts v. Bennet, ld. 409, it was decided that a profert of letters testamentary is matter of substance. The reason of these decisions must be because the plaintiff may be called upon to prove them to be legal and genuine.
¶6THE COURT said that they were satisfied by the authorities read by Mr. Goddard that the plaintiff could not be called upon in this stage of the proceeding to prove his claim to the character of executor.
¶7LIVINGSTON, Circuit Justice, said that he was of a different opinion in the morning, but was convinced by the authorities. As to the cases read by Mr. Daggett from Cro. Eliz. and Cro. Jac., it might well be matter of substance that profert of letters testamentary should be made; that the plea of ne unques executor may be tendered, while, nevertheless, the plaintiff could not be compelled to prove himself executor on trial to the jury.
¶8In the course of the trial to the jury, the counsel for the defendant read several letters from the testator, Christopher Champ-lin, to the defendant, from which it appeared that the testator did not consider the defendant, James Tilley, as a member of the firm of William Tilley & Co. In one' of these letters, six other letters purporting to be written by William Tilley & Co., and promising payment, were enclosed; and with them, the note on which this action was brought. The counsel for the defendant were proceeding to read these enclosed letters; but an objection being made,
¶9THE COUET said that the letters, whether written by William Tilley or not, were entirely irrelevant; though the letters of the testator were good evidence to prove that he did not suppose James Tilley to be a partner.
¶10An account book was produced by the plaintiffs to prove that James Tilley was connected with his son William in business. In this book two entries were found in the handwriting of James Tilley, many in the hand of William Tilley, and some in the hand of other persons.
¶11The counsel for the defendant objected to reading to the jury any charges made in the hand of William Tilley.
¶12BY THE COUET. The book must go to the jury, as it has been proved, and indeed conceded, that James Tilley made a few entries in it. The jury are to decide whether the book, as it is, amounts to any proof of partnership.
¶13The jury found a verdict for the defendant.
¶14His counsel then moved that judgment should be entered up for both defendants, though one of them had been defaulted.
¶15THE COUET said this was the correct *438mode of proceeding; for if the jury had found that one defendant assumed and promised, and the other did not, judgment must have been entered up for both, the declaration being founded on a joint promise only.