
    Beckham & Eckles v. John Peay.
    Columbia,
    Dec. 1828.
    If the defendant in summary process have a discount, which exceeds the summary jurisdiction, the Court, on being satisfied of its merits, will order the plaintiff to declare in the higher jurisdiction, to enable the defendant to set up his discount.
    An acknowledgment by one partner, that a debt due to the firm has been satisfied, binds the partnership, although made after dissolution, unless it appear that the partner making the acknowledgment had no authority to receive or cancel the debts of the firm, vide 2 Bailey, 133.
    Tried before Mr. Justice Gantt, at Chester, Spring Term, 1828.
    This was a summary process upon a due bill for forty-seveu dollars and fifty cents. The defendant, pursuant to notice of discount, offered to prove so much of a debt of three hundred dollars due to him by the plaintiffs, as would extinguish their demand. The presiding Judge held, that evidence of all or any part of a debt, which exceeded the summary jurisdiction of the Court, was inadmissible in this action. The defendant then offered to shew that the plaintiffs were utterly insolvent, and moved that they should be ordered to declare upon their cause of action, in order that he might be enabled to establish his discount in the higher jurisdiction. This motion was refused by the Court. The defendant then offered in evidence a written acknowledgment of one of the plaintiffs, that the debt, for which the defendant was now sued', had been satisfied. The debt, on which the action was brought, having been incurred whilst the plaintiffs were trading together as copartners ; and the acknowledgment by one of the partners that it had been satisfied, having been made after the copartnership was dissolved, his Honor held it inadmissible. Decree for plaintiffs.
    
      Lindsay v. Lindsay, 1 M’C. 491.
    The defendant now moved to set aside the decree, and for a new trial, with instructions on the grounds taken in the Court below.
    Clarke, for the motion.
    Potts, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The circumstances of this case furnish, I think, a practical illustration of the necessity of the rule suggested by the Court, on a former occasion, (although I am not now able to lay my hand upon the ease,) that when the discount of a defendant in an action by summary process exceeds the summary jurisdiction, the Court should, on being satisfied of the merits of the discount, compel the plaintiff to declare, that the defendant might have the benefit of the discount. In this case, the 'debt demanded of the defendant is only forty-seven dollars and fifty cents. The plaintiffs, it is said, are utterly insolvent; but according to the rules regulating the summary jurisdiction, the defendant is not allowed to set off a debt of three hundred dollars which the plaintiffs owe him : and the effect is, that the defendant in the event of their insolvency loses his whole demand. Justice ought not to be thus perverted, and so long as the Court can exercise any discretion over it, it cannot be permitted. Upon a proper case made I would how, if for the first time, order the plaintiff to declare, that the defendant might come in with his discount.

The decree of the Circuit Court was clearly erroneous on another ground. One of the plaintiffs, a partner, acknowledged that the demand sued for was satisfied ; and although the firm was insolvent, and the partnership dissolved, he, for any thing that appears here, was equally competent with the. other, or any one else, to receive or cancel the debt of the defendant; and having cancelled it, the partnership is bound by it.

Motion granted.  