
    George H. Keerl vs. Thomas J. N. Bridgers.
    Ia this state contracts and liabilities of copartners are joint and several; and any one of the partners may be sued and is liable for the whole indebtedness.
    Where, therefore, a firm, consisting- of three persons, was sued upon an account, for which it was proved that two of the firm had executed to the plaintiff their note ; and the suit was dismissed as to those two, and stood against the third partner alone : it was held, that it was a question of fact for the jury to say, whether the note of the other two was received by the plaintiff in extinguishment and satisfaction of the debt of the three; if it were, the third partner would be discharged from the debt; otherwise not.
    In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers.
    George H. Keerl sued William Armour, Henry Lake and Thomas J. N. Bridgers, in assumpsit upon three open accounts. He discontinued his action as to Armour and Lake. On the trial, the contracting of all the accounts by the defendants as partners was proved. It was also proved; that Armour executed and delivered to Keerl promissory notes for two of the accounts sued on; the notes were executed in the name of Armour and Lake, were unpaid and in the possession of Keerl.' On this testimony, the court, when asked by the plaintiff, refused to instruct the jury “ that the plaintiff is not precluded from his action upon the accounts for which the notes were given, in the absence of all proof that the notes were accepted in absolute payment of those accounts ; ” but at the instance of the defendants, the court instructed the jury, “ that for the accounts sued on and embraced in the notes signed Armour and Lake, the plaintiff could have no action except upon those accounts.” The jury found in favor of Keerl, only for the account not embraced in the notes executed by Armour. Keerl moved for a new trial; his motion was overruled, and he prosecuted this writ of error.
    
      William G. Thompson, for plaintiff in error.
    Bridgers was liable with Armour and Lake, on the accounts at the time they were contracted. Keerl had a right to treat their liabilities as separate, under our statutory law ; and so he might change the form of his claim as against two of the partners, (which is all that was done here) without affecting his claim against the third partner.
    
      William Thompson, on same side.
    
      Snider and Hutchins, on same side.
    1. The record furnishes no proof that the notes were given in absolute payment of the accounts.
    2. The execution of a note by one of several partners for an antecedent debt due by all, will not extinguish their liability. 1 Hill’s Rep.. 516; 5 Ibid. 448. It only separates the right of action during the time allowed for payment. 8 John. R. 304; 5 Ibid. 68; 9 Ibid. 310 ; Smith’s Mer. Law, 436 ; 7 Harr. & J. 32, 92; 15 S. & R. 162; 3 Call, 234; 2 Watts, 121; 2 Hall, 547; 3 McCord, 484; 1 Dali. 420.
    3. The case of Slocumb's Adm’r. v. Holmes’s Adm’r., 1 How. (Mi.) 139, is distinguishable from this, in this; in that the note of all the partners, was held to merge the account of all; here it is but of two of the partners; it amounted to but an account stated. ■ Traman v. Hurst, 1 Term R. 40; Davis v. Tiernan, 2 How. (Mi.) R. 786.
    
      A. H. Davidson, for defendant in error,
    Insisted that the accounts were merged in the notes. He cited 1 How. (Mi.) R. 139 ; 6 Cranch, 264; 5 John. 72 ; 11 lb. 518 ; 12 Ibid. 409; 14 East, 239; 5 Bam. & Aid. 925; 4 Esp. R. 89; 5 Ibid. 122; 24 Pick. 13.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit in the circuit court of Yala-busha county, on an account, created by the firm of Armour, Lake & Bridgers, with the plaintiff.

It was in proof that the articles on which the accounts were founded, were furnished the defendants, and that the prices were correct; but that the note of Armour & Lake, two of the firm of Armour, Lake & Bridgers, had been given for all of the accounts except one. The suit was dismissed as to Armour & Lake, and stood against Bridgers alone. It was tacitly conceded, that the plaintiff had the right to recover on the account not embraced in the notes, and for that amount a verdict was rendered in his favor. But as to the others, the court, at the instance of the defendant, instructed the jury, “ that for the accounts sued on and embraced in the notes of Armour and Lake, the plaintiff could have no action, except upon those notes.” This charge was excepted to, and the cause turns upon that exception.

In this state the contracts and liabilities of copartners are joint and several. H. & H. 595. Hence any one of the partners may be sued, and he is liable for the whole indebtedness. Dahlgren v. Duncan et al. 7 S. & M. 294.

In- our view it is a question of fact, whether the notes of Armour & Lake were intended to be received in absolute ex tin guishment of the former debt, and whether it was agreed that the plaintiff should accept them as his sole debtors, and slioitld take their notes by way of satisfaction for the debt. If such were the agreement, the receipt of the notes would be a discharge of the defendant Bridgets, otherwise not. Story on Partnership, 239, sec. 155 ; Thompson v. Percival, 5 B. & Adol. 925 ; Eng. C. L. R. 245.

The instruction of the court not being in conformity with this opinion, the judgment must be reversed, and a new trial awarded.  