
    
      DENNISON & COMMAIRE vs. NICHOLSON.
    
    Appeal from the court of the first district;
    Whether pay-ner, acting m a •¿apárate capa-dty from the firm of which he is a member, be a pa-unent to the srm
   Porter, J.,

delivered the opinion of the court. The defendant issued as surely for - ⅞ , M’Coy, an auctioneer, who is stated m toe pe- . , - titlOO to DC insolvent. TllC aOSWCT 0611163 the . . . : allegations in the petition.

The goods were consigned to M’Coy &• Scallan. They were sold at auction by M’Coy a partner in that firm. The judge of „ ti 3 the first instance, thought a payment to may was a payment to M’Coy & Scallan, to whom the goods had been consigned, and gavejudgment for defendant. The plaintiffs appealed.

It is proved in evidence that M’Coy had a partner in the business of selling at auction, and that their affairs were carried on under the name of M’Coy & Co. An account of sales produced by the plaintiffs, shows that the sales were made by order, and on account of the petitioners, not of M’Coy k. Scallan. This account is dated nine months after the last of the articles were sold, and acknowledged a balance in their hands of $425 36 cents. Itwmuld appear the consignment had been transferred from M’Coy & Scal-lan, to M’Coy & Co. for the latter paid the freight and other charges on the goods. We see, therefore, no ground for concurring with the judge a quo, that a payment to M’Coy was a payment to M’Coy 8r Scallan. Had the auctioneers acted for them, the question would have arisen whether a payment to a partner acting in a separate capacity, is a payment to the house of which he is a mem- . ber, but io this instance, the sale was made in the name and for the account of the owners of the goods, not for the consignees.

Denis for the plaintiffs, Hennen for the defendant

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled,avoided, and reversed, and it is further ordered adjudged and decreed, that the plaintiffs do recover of the defendant, the sum of $425 36 cents, with costs in both courts,  