¶1At law. Assumpsit upon a promissory note indorsed by the defendant [Archibald McLane] to the plaintiffs [Carne and Slade]. Mr. Libby objected to being sworn for the defendants, because interested as a partner with the plaintiff's; and swore upon voir dire that he was interested as a partner. The court refused to compel him to swear contrary to his interest.
¶2The defendant’s counsel then objected that the plaintiff's could not recover, because Mr. Libby, being a partner of the firm of Carne & Slade, ought to have been named.
¶3The plaintiffs’ counsel, said that the declaration of Libby upon voir dire is not evidence to the jury, and the court so decided. The defendant then offered evidence to prove that Libby was a partner, and prayed the court to instruct the jury that, if they should be satisfied, by legal evidence, that he was a partner in the house of Carne & Slade, at *90the time of the indorsement of the note, the plaintiffs could not recover; which instruction the court gave as prayed.