a surviving partner was incompetent by reason of his interest. See Langley v. Dodsworth, 81 Ill. 86; Hurlbut, to Use, etc., v. Meeker's Ex's, 104 Ill. 541.

The latter case is directly in point. It is said in the opinion, after quoting the statute: "Under this statute we are satisfied that neither J. D. Hurlbut nor D. N. Hurlbut was a competent witness for the plaintiff. They were not made defendants in the action, but were directly interested in the event of the suit. They were members of the firm of Hurlbut Bros. & Co. at the time the note was executed, and were makers of the note in suit, and hence had a direct interest in the result of the pending action."

In the course of the examination of the witness Tibbetts, the following occurred: "Q. State whether or not of your own knowledge, the account sued upon in this action has been paid? A. Well, in my judgment it has been paid. I gave the plaintiffs a promissory note and also a chattel mort- • gage to satisfy that account. It was my individual note. Have never received the note in return. Plaintiffs received payment of that note. They did not receive any money-I do say the plaintiffs realized the goods in the house which I gave them in a chattel mortgage upon the goods in the Tibbetts house, to pay this account."

At this stage of the proceedings leave was asked to amend the answer, as above stated, and denied. The refusal to allow the amendment was an abuse of the discretion of the court, and may have worked great injustice to the defendant. Either the pleadings should have been allowed to have been amended, or in proof of payment all the transactions between Tibbetts and plaintiffs, and all facts of dealings in the way of payment or satisfaction should have been elicited. This becomes more apparent in the subsequent testimony of Tibbetts, when called by defendant, and in the refusal of the court to allow the witness to testify to certain facts offered in proof, which, if established, would of necessity have shown, if not full, at least partial payment by the witness. He stated that in payment of his individual note at its ma

turity he turned over to plaintiffs the personal property covered by the chattel mortgage; that plaintiffs took possession and charge of it; no portion was ever returned to him, and that it was used by plaintiffs in the Tibbetts house at Aspen. He was then asked the value of the property. Objection was made and sustained. Defendants also attempted to prove by the witness that the witness was misled by one of the plaintiffs at the time the real property was sold under the trust deed; that plaintiff informed him that he would protect his interests, and that it was unnecessary for him to attend the sale; that he remained away and the property was bid in for a nominal sum far below its value, etc., but was not allowed to make the proof. How far the defendant might have been successful in establishing the facts contained in his offers of proof, of course cannot be known, but the opportunity should have been allowed him. It is unnecessary to follow this subject further. The whole matter should have been investigated.

In defending suits of this character estates are at great disadvantage, and to a great extent at the mercy of claimants. The actor in the transactions who did the business,- knew all the facts and details, being dead, the representative of the estate having no knowledge only that subsequently gained cannot, in the first instance, in all cases interpose all necessary defense, and courts should, in the interest of justice, and for the protection of widows and children, afford every reasonable facility for the full investigation of every asserted claim. Such facilities were not given, nor such protection to the estate, upon the trial of this cause.

Another important question, which, as far as I can ascertain, has not been determined in this court, is presented in this case, viz., whether under any circumstances, after the dissolution of the partnership, the admissions or acknowledgments of a former partner are admissible to establish a cause of action against a former partner. In England the rule for years was well settled that such admissions are competent not only to take the case out of the statute of limita

tions, but to establish or create a firm indebtedness. It was based upon the opinion of Lord Mansfield, in Whitcomb v. Whiting, Doug. 652, and what Judge Story, (Story on Partnership, § 323,) did not hesitate to call "an unreasoned decision." The case has been severely criticised in the English courts. See opinion of Lord Kenyon in Clarke v. Bradshaw, 3 Esp. 155; of Lord Ellenborough in Brandram v. Horton, 1 Barn. & Ald. 463, and Lord Tenterden in Arkins v. Tredgold, 2 Barn. & Cress. 23, and the doctrine has been limited and partially overturned by late acts of parliament. In the United States considerable diversity of opinion is expressed in the different courts, some few states adhering to and following the old English decisions, but in federal courts the English doctrine has been overruled and the admissions held inadmissible; first in the case of Clementson v. Williams, 8 Cr. 72, followed by Judge Story in Bell v. Morrison, 1 Pet. 373. In Bispham v. Patterson, 2 McLean (C. C.) 87, the learned judge, after reviewing the authorities, expressed his conviction in favor of the English rule, but yielded to American precedents and decided the case in harmony with them. The American rule overruling early English decisions has since been followed in those courts. See Thompson v. Boardman, 6 Wal. 316.

In New York Waldon v. Sher

In a great majority of state courts the English doctrine has been overruled; first, in the state of New York, and followed by at least twenty other state courts. the English rule was repudiated as early as burne, 15 John. 409, which has been since followed in VanKeuran v. Parmlee, 2 Com. (N. Y.), in which the decisions of the different states are carefully and ably reviewed in the court of appeals, resulting again in overruling the English doctrine. The principal authorities on the subject will be found collected in 3 Kent's Com. 49-51.

The power of an individual partner to bind the firm during its existence arises only from the fact that each is the agent of the firm, and "it seems difficult upon principle to perceive how they can be any more than the declarations or

acts or acknowledgments of any other agent of the partnership would be after his agency has ceased." Story on Partnership, sec. 323; and see Ellicot v. Nichols, 7 Gill (M. D.) 85; Thompson v. Bowman, 6 Wall. 316. There is certainly great authority as well as reason for adopting the American rule. In this case not only was the partnership dissolved, but the party to be charged was dead, "but however the docrine may be after a dissolution in cases where all the partners are living, it is very clear that no acknowledgment by the surviving partners after the death of one of them will revive the debt against the estate of the deceased partner." Story on Partnership, § 324, a, and this seems also to be the English as well as American rule. See Arkins v. Tredgold, 2 Barn. & Cress. 23; Slater v. Lawson, 1 Barn. & Ad. 396; Crallan v. Oulton, 3 Beav. 1; Way v. Bassett, 5 Hare 67.

In this case not only was the party, whose estate is sought to be charged, dead, but the claim in suit prior to his death had been assumed as the individual debt of Tibbetts, his individual note and security taken in supposed extinguishment of any partnership liability, yet the witness was allowed to testify not only that the debt was originally a firm debt, but that it remained so notwithstanding the fact that previous to the death of Cooper it had apparently been regarded by all concerned as the debt of Tibbetts alone. Certainly if in any case a rule of law will close the mouth of a surviving partner, it should be applied in this, where not only the direct interest of the witness but the rule of law relieves the estate from the effects of such directly interested testimony. We have no hesitancy in saying that the admissions and statements of Tibbetts, calculated to charge the estate, were incompetent and should have been excluded. The judg ment should be reversed and the cause remanded for a new trial.

Reversed.

JAMES LINDSAY, APPELLANT, V. CATHERINE LINDSAY,

APPELLEE.

1. CONSTRUINg a Deed to be a MORTGAGE.-The rule is, that a decree changing the legal effect of an absolute deed from that of a conveyance to that of a mortgage, must rest upon precise, clear and unequivocal testimony, but this rule is not absolutely uniform in its application, nor is the same identical proof required in all cases. 2. EVIDENCE REQUIRED TO SUPPORT A DECREE-FIDUCIARY RELATIONS OF PARTIES.-When transactions between parties whose relations have been of a close fiduciary character are presented as the basis of a decree, the plaintiff is not held to the same strictness of proof as in those cases where the parties dealt at arms' length, nor is the same degree of certainty in the testimony required to support the decree.

3. DOUBTS AS TO CORRECTNESS OF DECREE NOT SUFFICIENT TO REVERSE. In a case tried to the court without a jury, where upon the whole testimony it may be doubtful whether the plaintiff was entitled to his decree, but the record suggests nothing to indicate that the court was influenced by any other considerations than those which should control judicial tribunals, and the decree is supported by the plaintiff's evidence and by the circumstances of the transaction, and the subsequent conduct of the parties, it is not a case where the judgment is so manifestly against the evidence as to require reversal.

Appeal from District Court of Arapahoe County.

The facts sufficiently appear in the opinion.

Messrs. CRANSTON & PITKIN, for appellant.

Messrs. JOHN HIPP, S. C. HINSDALE and I. E. BARNUM, for appellee.

BISSELL, J. This is one of that very numerous class of actions which have their inception in the unguarded transactions between persons who sustain to each other some confidential relation. In September, 1884, by a deed of absolute conveyance, Mrs. Lindsay transferred to her son, the appellant, sundry property situate in the city of Denver. There