¶1The Chief Justice drew the following dissenting opinion with the assent of the other non-concurring justices.
¶2This is an action of assumpsit on account annexed for seine sold the defendant.
¶3. It appears, there was a firm of Appley & Mills, of which the defendant was a member. As no plea in abatement has been filed, the suit may be maintained against the defendant.
¶4By the testimony of Appley the seine was to be furnished by Mills. Appley testifies that he had the seine before receiving the letters of his partner of July 14, 1870, and that it went into the possession of Mills. As there was a firm, and the books were kept in the name of Appley & Mills, and the seine was in their hands and used by them, no reason is perceived why they should not pay for it.
¶5The defendant is not a witness. If he could controvert the statements of his partner, it is to be presumed he would have done so.
¶6The case is submitted under the agreement that the defendant is to be defaulted, if on the foregoing evidence the jury would be authorized to find a verdict for plaintiffs; otherwise, to stand for trial.
¶7The parties had a right to make their own agreement. In the one made there is nothing unusual or peculiar.
¶8If the plaintiff has made out a case, a default is to be entered. We think he has, and that a default should be entered.
¶9Defendant defaulted.
¶10Cuttihg and Dickerson, JJ., concurred.