13. And the rule of notice will be the same, though the creditor be a bank, established after the dissolution of the firm.

Ibid. 14. To charge a bank with notice of a dissolution, it is not sufficient that one of the firm who received the credit was one of the directors of a bank. Ibid.

15. A partner may appoint an agent to make and indorse bills, &c., and such power is not void, although granted under seal by one partner alone.— But whether a co-partner could authorize such agent to enter an appearance for the firm-Quere. Lucas v. Bank Darien, 2 S. 280. 16. The creditors of a co-partnership are entitled to be first paid, out of the co-partnership funds, to the exclusion of the creditors of an individual partner. Lucas v. Atwood, 2 S. 378.

17. Where a firm purchased lands, and one of the partners was an infant, he cannot recover back his portion of the purchase-money paid to the vendor, the contract being binding as to the other partners, and they having the right to control the firm funds.

Sadler et al. v. Robinson's heirs, 2 S. 520. 18. In an action by surviving partner on a note, made to the firm, it is not necessary to prove the partnership or survivorship.

Smith v. Hunt, 2 S. 222.
Smith v. Davis, 2 S. 224.

19. In assumpsit against partners under the common courts, proof of a promise by one, in the name of the firm, is not sufficient: there must be a joint promise proved, or proof of the existence of the partnership.

Findly & Buchanan v. Thomson, 3 S. 48.

20. It is not necessary, in such case, for defendant to deny the partnership by plea, in abatement.

Ibid. 21. A agreed to pay B $600; B, to convey him one half of a tavern, which they were to keep jointly. A paid $400, and they commenced business, but B refusing to convey, A refused to pay the balance and withdrew.-Held, that A could recover at law the $400 as money had and received, and that the aid of chancery was not necessary, as for unliquidated partnership acMaddera v. Smith, 3 S. 119.

counts,

22. After dissolution of a firm, the declaration of a defendant, that his codefendant was a partner and jointly bound with him, is not evidence.The rule is, that the admission of a partner, after the dissolution, binds himself only. Barringer & Rhodes v. Sneed, 3 S. 201. 23. One partner, after dissolution of the firm cannot, without express authority, create or revive a debt against his late partner.

Wilson v. Torbet, 3 S. 296. 24. The absconding of a partner gives no more right to another party to sue at law, than if the former had not absconded.-semble.

Stowe v. Sewall, 3 S. & P. 67.

25. But if an action at law be brought by one copartner against another before a final settlement, and afterwards, before the trial, a settlement takes place, and a balance struck between the parties, the court will presume that the accounts were thus struck with a view to the pending suit, and so be evidence, especially after the defendant had absconded. Ibid.

26. Joint owners of steamboats or other vessels may be properly regarded as partners so far as relates to the liabilities incurred for losses, &c., and are included in the provisions of the statute of 1818, which permits a judgment to be obtained against any member or portion of the partners.

Jones et al. v. Pitcher & Co., 3 S. & P. 135. Į
Johnson Y. Greeves, 4 P. 127. }

27. The acts, declarations or admissions of one partner, who was the agent of the plaintiff, are not admissible as evidence to disprove a plaintiff's

demand in a suit against them as a firm, and when they have jointly plead the general issue. Hutchins v. Childress & Baker, 4 S. & P. 34.

28. After a copartnership has been established aliunde, an answer in chancery of one of a firm is competent evidence in a suit at law against the firm, to show admissions of plaintiff's demand. Ibid. 29. One of a firm cannot discredit the admissions of his copartner, given in evidence by a plaintiff against them jointly. Ibid.

30. When an agreement was entered into by three persons, whereby it was declared that C contracted, as party of the first part, and N & D of the second part:-it was held, that N and D were partners in respect to this agreement, so as to be jointly liable to C, for his proportion of profits arising under the agreement on a settlement. Drake v. Reed, 4 S. & P. 192.

31. When a joint demand exists against two, a mere verbal acquiescence, unaccompanied by a positive assent or sufficient consideration as to a release of one of the parties, will not be sufficient and binding.

Ibid.

32. The acknowledgment by one partner in the name of a firm, of the service of process, after dissolution of the co-partnership-will not bind the other partners. Demott, sur. v. Swaim's adm. 5 S. & P. 293. 33. The surviving partner of a firm, will not be allowed to claim and retain against the representative of his deceased partner, any compensation for mere personal services, in winding up the affairs of the firm.

Colgin v. Cummins, 1 P. 148. 34. Annual rests in the individual accounts of such partners, so as to authorize interest on the balances of the largest account, are not allowable when it does not appear that the surviving partner has turned such balances to profit. Ibid.

Marr's ex'r v. Southwick et al. 2 P. 351.

35. The joint effects of a co-partnership cannot be appropriated by one co-partner to the payment of his individual debt, without the implied or express assent of the other co-partners, and, an account raised by one co-partner without the knowledge or consent of the others, cannot be set off against a debt due the firm, and the onus probandi of such assent, lies in the creditor of the individual co-partner. Pierce & Baldwin v. Puss & Co. 1 P. 232. 36. The individual debts of a co-partner are not recoverable out of the property of the concern.

1bid.

37. When two or three joint owners of a mill were compelled to pay a judgment at law, on account of the joint property, the court of chancery, under the circumstances, to save litigation, its jurisdiction being concurrent, entertained a bill and compelled a third joint-owner to contribute his portion of said judgment. Thomas & Harris v. Hearne, et al. 2 P.262.

38. A bill filed against the representative of an estate to subject the assets of a deceased partner to the payment of a judgment, obtained against the firm, is a new and distinct proceeding against a new party; and all the facts must be established by testimony in the ordinary manner, so that neither the judgment obtained against the firm nor the deposition taken in the case, are admissible as evidence. Marrs ex'r v. Southwick et al. 2 P. 351.

39. And in such a bill, the complainants residing abroad-held, that an admission that one of the firm resided in New Orleans and was solvent, was fatal to the chancery suit, for this admitted a complete and adequate remedy at law, which should have been first pursued before resorting to the estate of the deceased partner. Ibid. 40. In an action against a co-partnership, the notice authorized by statute 1807, providing for taking the depositions of a witness about to leave the State is good, if only served upon one partner. Cox v. Cox, 2 P, 533.

41. Where two being partners in business, after a dissolution, entered into an agreement under seal, stipulating under a penalty for the observance of certain conditions-held, on a bill filed by one of the partners, that chancery had no jurisdiction to enforce the performance; the bill alledging no fraud nor a desire of a rescission of the agreement, and the remedy of the partner being clear at law. Clark v. Clark, 4 P. 9.

42. A and B, being co-partners, received consignments of goods from C, until the dissolution of the firm by the death of B-and whose estate A, the survivor, administered. C continued his consignments to A in the firm name and subsequently obtained a judgment at law against A, as surviving partner. On a bill filed by C, against A and his securities to his administration bond, and the distributees of B's estate, to whom their shares had regularly passed -it was held,`

1. That the firm could not be charged in chancery with accounts raised in the firm name, after notice of the dissolution.

II. That A's interest under the circumstances being balanced, he was a competent witness in the cause. Pyke v. Searcy, 4 P. 52. 43. Service of process upon one co-partner of a firm after a dissolution will not authorize judgment against all the co-partners.

Duncan v. Tombecbee Bank, 4 P. 181.

44. One partner, who after a dissolution of a firm, pays the firm debt and takes the note of his late associate in payment thereof, may well maintain an action at law, upon the note, notwithstanding he may have received the books and accounts of the co-partnership for collection and settlementthe consideration not being impeached, and it not appearing but that the debt was paid out of the seperate funds of the payee.

Lyon v. Malone, 4 P. 497. 45. In an action by partners upon a promissory note, payable to one and company, it should be proved that all joining as plaintiffs, were partners with the one named in the note, at the time it was executed.

Huntley v. Willis Lang & Co. 5 P. 154. 46. Chancery will not consider the question of an alledged co-partnership in the purchase of lands, where neither the allegations nor the proofs in the cause, recognize the existence of any agreement in writing in relation to such co-partnership. Larkins v. Rhodes, 5 P, 195.

Durin & Walker v. Parsons, 5 P. 345.)

47. Chancery will dismiss a bill, filed to render defendants accountable for the proceeds of a sale of lands, alledged to have been purchased in co-partnership, when the terms of a written agreement for such purchase had never been complied with by the complainant; when it is impossible to carry such agreement into effect, and where, whatever rights a complainant had under it, had been merged in a new agreement which he refused to sign, and with the terms of which, complainant had failed altogether to comply.

Durin & Walker v. Parsons, 5 P. 345.

48. In declaration by a surviving co-partner, for goods, wares and merchandize, sold by co-partnership, it is sufficient, after verdict, that the plaintiff set out in the commencement of the declaration, the character in which he sues: it may be connected with the name whenever it is mentioned in the declaration. Hill v. McNiel, sur. 6 P. 29. 49. One interested in a steam boat, as part owner, may sell his interest without consulting the other joint owners.

Jones et al. v. Sims & Scott, 6 P. 138.

50. The mere fact of being joint owners of a vessel does not make the parties liable as co-partners; the liability of the owners is consequent upon its employment; and, if the owners of a vessel are not concerned in its na

vigation, they cannot upon the ground of ownership be charged with the loss of goods-but, if they are entitled to its earnings and jointly liable for its losses they may be regarded as partners, so far as it relates to all liabilities incurred by the injury or destruction of the vessel. Ibid.

Jones v. Pitcher, 3 S. & P. 135.) 51. If a joint ownership be once shewn to have existed-its continuance may be presumed, unless evidence to the contrary.

Jones et al. v. Sims & Scott, 6 P. 138.

52. A sworn copy of a steam boat register, from the records of the custom-house, is not prima facie evidence of ownership, even against the party making it under affidavit. Jones et al. v. Pitcher, 3 S. & P. 135.

53. In assumpsit against partners, on the common counts, proof of a possession by one, in the name of the firm, is not sufficient. There must be a joint possession proved, or proof of the existence of the partnership.

Finley & Buchanan v. Stephenson, 3 S. 48.

See Set-Off-Covenant-Discontinuance.

PAYMENT AND EXTINGUISHMENT.

1. On an unliquidated demand, plea of payment does not admit the amount of demand, or dispense with any proof in reference thereto.

Haley v. Callier, A. R. 63.

2. Payment is a good plea to an action of debt on record of recovery in another State. Hardwick v. King, 1 S. 312.

3. Payment made to an intermediate holder of a note indorsed in blank, whose name does not appear on the note, such holder being really the owner at the time, is good. Richardson v. Farnsworth, 1 S. 55.

4. When sheriff gives an official receipt to defendant, it is good evidence of payment, though he fail to make return of it, and although a writ of error be sued out before the amount is paid over to the plaintiff.

Sanders & Fenwick v. Rives, 3 S. 109.

5. But when pending a writ of error, money is deposited with sheriff who holds an execution to be applied to the satisfaction of judgment in case of its affirmance, it is not a payment, and the money is at the risk of the depositor. 1bid.

6. In assumpsit payment may be given in evidence under general issue to reduce the damages although made after suit brought.

McMillian v. Wallace, 3 S. 185. 7. An order for money if accepted as payment, when no fraud intervenes or failure happens, is sufficient to discharge the debt.

Harrison et al. v. Hicks, 1 P. 423.

8. The payment of a debt, although it be made by one who is not a party to the contract, and although the agent of the debtor does not appear, is still an extinguishment of the demand.

Ibid.

9. Payment in discharge of a debt in genuine bank notes, if made bona fide, and in ignorance of the failure of the banks, is a valid payment, though at the time they were valueless. Lowry v. Murrell, 2 P.280.

10. When paper securities have been transferred as absolute payment of a pre-existing debt, then no resort can be had on such debt or its original consideration, unless they be forged, or fraud be committed in the representation of their value. Trotter v. Crockit, 2 P. 401. 11. A credit on the back of a bond which is legible, though shewing some evidence of an attempt to erase it, is good evidence of payment until disproved. Clark & Lindsay v. Simmons, 4 P. 14.

12. Action at law not sustainable on bond to firm of which one of the Tindall v. Bright, A. R. 103.

obligors is partner. 13. When one of the makers of a note is payee, an action at law cannot be sustained against the makers. Ramsay v. Johnson, A. R. 418. Brown & Parsons v. Torver, A. R. 370. J 14. The intermarriage of an administratrix with an obligor, on a bond payable to her as administratrix, does not extinguish the debt, but merely suspends the right of action during the coverture, and while she continues administratrix. King v. Green, 2 S. 133.

15. A bill of exchange drawn by a firm in favor of one of the members thereof, and indorsed to a stranger, the latter is entitled to maintain an action against the drawers, notwithstanding the payee is a partner.

Hazlehurst v. Pope, 2 S. & P. 259.

16. Toan action on a promissory note, plea that the note had been discharged by execution of a deed of trust of real estate, parol proof not admissible to show that at the time the deed was executed, it was agreed on that it should operate as an extinguishment of the note sued on.

Brooks & Brown v. Maltbie, 4 S. & P. 96. 17. If a party agree to receive property in payment, it may be proven as payment under the general issue, to the extent of its value or stipulated price. Munn v. Pope, 2 S. 498.

18. Payment of part of the purchase money, is not of itself a sufficient part performance to enable the vendor to enforce a parol contest for the sale of land, and recover at law the remainder of the purchase money.

Meredith v. Nash, 3 S. 207.

19. Cases carried from justices courts into the circuit or county courts by certiorari or appeal, are triable de novo on their merits and equity, and a payment made after the rendition of a judgment by a magistrate, is available without a special plea puis darrien continuance.

Hagan v. Thompson, 2 P. 48.

See Execution.