¶1This case was decided in February 1860.
¶2All the defendant’s exceptions to the master’s report are overruled.
¶31. The writ is dated October 1st 1855. The action is there*569fore brought under the provisions of § 2 of the St. of 1855, c. 194, which authorizes a plaintiff, when relief is sought in equity, to state the material facts and circumstances relied on by him, either in the form of a bill or petition to the court, or in a declaration in an action of contract or tort. This, being a suit between copartners, may properly be made a proceeding in equity, independently of the provisions in either of the Sts. of 1853, c. 371, or 1855, c. 194, and was therefore rightly treated as a suit in equity rather than as an action at law; and therefore the order sending it to a master was correct. Rev. Sts. c. 81, § 8. Irvin v. Gregory, 13 Gray, 215.
¶42. The evidence objected to by the defendant appears to come directly within the rule of rebutting evidence, and was therefore properly received by the master.
¶53. The conclusion of the master that he considered the books of the partnership prima facie evidence against each partner is reasonable in itself, and in conformity to the general rule respecting partners who have actual and equal access to the books. That appears to have been the case in the present instance. There was1 other evidence upon the subjects of inquiry, for which resort was had to the books, which was considered and weighed by the master in forming his opinion upon the various questions presented to him.
¶64. The master’s construction of the contract of dissolution was correct. The contract provided that the assets of the partnership should be applied to the payment of debts; but made no provision in anticipation of such a contingency as the insufficiency of the assets for that purpose. The remarks of the master, which the defendant calls propositions, including the opinion that the articles of dissolution as construed by the defendant made a bad bargain for the plaintiff, are not subjects of exception. They are, at most, only the arguments or suggestions by which his mind was affected in forming an opinion upon the interpretation to be given to the contract.
¶7Decree for the plaintiff.