Gilchrist, C. J.
The account which the witness, Mug-ridge, gives of the copartnership, is not such as to induce the supposition that evidence of its terms or of its existence is to be found in the deed which is said to have been given to the defendant. The deed is proved to have purported to be a conveyance to him of his share in the concern, and not to have contained any thing equivalent to articles of association, or any stipulations competent to constitute a copartnership.
If, however, a different inference must be drawn from the testimony of the witness, and it must be understood that the deed was of a nature and form to make the defendant a partner, then there must have been mutuality in its covenants or stipulations, and the paper itself must have been one “ appertaining to the copartnership,” and embraced in the terms of the notice that was given to produce such papers. The evidence, therefore, in whichever of the two senses understood, carries with it enough to warrant its introduction, and was properly admitted.
In this case two parties had the same name; and the burden was on the plaintiff, suing one of them, to show that the party sued was the one that made the contract. The only question is whether there was evidence sufficient to authorize the jury to find for the plaintiff on this point.
Of these two parties, one was in business, and the other was not in business. The former was shown to have had transactions with the plaintiff that might well have resulted in making him a creditor. Now, upon a question of identity, we cannot say that here was not evidence enough to put the burden upon the defendant.
We, therefore, are of the opinion that the verdict was sustained by competent evidence, and that there must be
Judgment on the verdict.