#### JAMES *v.*BOSTWICK.

Partnership contract in equity if not at law — convict of petit larceny — witness—-competency-pardon — release.

In a contract to construct two boilers and a cylinder for a steam engine, it may be proven ' that those terms, used as terms of art, or of the trade, mean an entire engine.

.Qwere, if a convict of petit larceny is a competent witness without pardon?

"Where the contract is a partnership one, though being executed by the seal of one, he alone is liable at law; yet that it is a partnership contract in equity, where the other partners would * be subjected, if necessary to make their money. Such partner is incompetent as a witness *•; for his co-partner, and a release from the partner does not restore his competency.

Covenant on a contract to build steam machinery. Breach, the non delivery, &c. and that the machinery which was put up is useless. Plea non est factum, with notice of performance of the covenants.

The following is the contract: k Memorandum of an agreement made and entered into this *19th*of February, 1829, by and between Richmond and Bostwick of the'first part, and John James of the other part, witnesseth, that said Richmond and Bostwick on their part, bind themselves to furnish on or before the first day of August next, two boilers of 24 inches in diameter, and 16 feet in length. One cylinder, 9 inches in diameter, with three and a half foot stroke, and put up the same for the sum of $1000. The said John James, on his part, binds himself to pay the above-mentioned sum of $1000, by an order on E. Buckingham, Jr. & Co., accepted; also to put up the brick and wood work, pay freight from this place, freight of boiler from where it may he procured, and board the hands that may be employed in fitting up the engine. Richmond and Bostwick further engage on their part, that the machinery shall be made of good materials, in a good, workmanlike manner, and be equal to any other of that class of engines. Witness, &c.

Richmond & Bostwick. ' [seal.]

John James. [seal.]

Attest — John Patterson.

*143The receipt of the order for *$1000,*was endorsed on the back of the article. The plaintiff proved that the engine when put up was of no use.

*Stillwell,*for the defendant

objected, that the article stipulated only to construct the boilers and cylinder.

*Culbertson,*contra,

insisted that the true construction of the article was to construct the whole engine.

*Stillwell*

objected to the witness as incompetent, on account of his infamy.

*Culbertson*and *James*

objected, that he is interested in the suit.

By the Court.

This is a contract for making two boilers and a cylinder, and to put up an engine, of which they formed a part, equal to any of that class. The language employed does not necessarily obligate the defendant to make the other parts of the engine. Yet if there be in this section of country any technical meaning given to the word *boiler,*or *cylinder,*whereby, as *words of art,*they are understood to comprehend an *entire engine,*that fact may be proved.

The plaintiff then called a witness to the stand,' against whom it was objected, that he had been convicted of petit larceny. The record being produced showed the fact; that he pleaded guilty when arraigned, and on that plea was sentenced.

By the Court. The legislature, 29 *O. L.*143, have provided that persons convicted of any of the *crimes*described in the *crimes act, except of manslaughter*and *duelling,*shall be incompetent to certify as witness, except pardoned. That act embraces stealing of the value of *$50,*or upwards. The larceny of which this witness is convicted, is for a less sum. At common law, one convicted of petit larceny was held a felon, and rendered incompetent to give evidence. Such convict in England is now rendered competent by act of parliament. It has been supposed here, that the provisions of our statute, which, in express terms, disqualifies those guilty of grand larceny, *impliedly*admits those guilty of petit larceny as competent to testify.

The judges differing in opinion upon the last point, the witness was permitted to be sworn.

The defendant then called his co-partner as a witness, and executed to him a release.

By the Court. This contract is a partnership contract in equity, though in *law*so executed, as to subject one of the partners only, upon the covenant, as but one sealed it. There can be but little doubt, but that if a recovery is had, and the defendant prove insolvent, the witness might be subjected in equity to the debt. He is *144called, then, in favor of his own interest,/a'nd the release of his co-partner, cannot affect his liability to the other party to the covenant. He must be rejected.

Verdict for the plaintiff, $176 85, and judgment.