
    Smith and Marshall against Rogers, impleaded with Bement.
    K & B _ nm i« trade, ter «00,1, ⅛<,|,1 of April, une, ¡⅛⅛⅞ by uh-ter, that they ⅛ harinee ship, and that ⅛ dAt due to the ⅛* ¾⅛⅛⅞ *e plaintiffs re-⅞⅛⅝¾ partnership is plaintiffs, of the payment of ‘¿Ayou’ have assumed <»r August, 3816, liquidated rite account, and gave the plaintiffs his prornis-satisfied with.” B. after-oAhedebt and on ll>e is* of so,y «ó* on balance Ke»n<t the plain-iAelTforAhe note: “when *to the credit of R. and ⅛ them!” °bÍ continued ⅛ ivoiSer, ””' I817> whe.n he AÍA^and *é "¾ iv, made any demand of • R7 brought an action against R. & B. on the original contract for goods sold and delivered. Held, that neither the acceptance by the plaintiffs of the note of B., nor the indulgence shown to him, amounted to a payment, or discharged R., hut that the plaintiffs were entitled to recover the balance due for the original debt, on delivering up the note to be canceled.
    THIS was an action of assumpsit for woods sold and deliv-erod. Tho plaintiffs, under the linn of Smith & Marshall, in April. 1816. sold to the defendants, partners in trade, under tho linn of Rogers ⅛- Jln/i< nt. a quantity of merchandize. In Arpil, jSJd, subsequent to the side, tho defendants dissolved their copartnership; and on the 22d of April, Bement wrote to the plaintiffs, as follows: “Our firm was dissolved on the 3d instant, and I assumed your demand, which you may rest assured will be paid as soon, as possible.” On the 27th of April, the plaintiffs answered, as follows: “We observe your partnership is dissolved, and that you have assumed our debt, which we are satisfied with.” On the 19th of July, 1816, Be-went again wrote to the plaintiffs, as follows: “ I inclose you 100 dollars, which you will please to place to the credit of the late firm of II. & B.” On the 13th of August, 1316, B. gave his note to the plaintiffs, who gave him the following receipt: “ Received, Albany, August 13, 1816, from Mr. C: N. Bement, his note on demand, with interest, for six hundred dollars, when paid to be placed to the credit of Rogers &f Bement’s account with us; also, two dollars and 86 cents, for balance of said account.” On the 21st of December, 1816, the *plaintiffs received from B. 100 dollars in part payment of the above balance. B. continued to do business until November, 1817, when he became insolvent; no suit was brought against him to compel the payment of the note given by him to the plaintiffs; nor was R. called on by the plaintiffs, for the payment of the original debt, until after the insolvency of B.
    
    On the 13th of August, 1816, the same day that the plaintiffs gave B. the receipt for his note, they gave to him a second receipt, as follows; “ Received from Mr. C. N. Bement, llis note at six months, for two hundred and thirty dollars, in full, for invoice of two pipes of wine, shipped by us, and consigned to Bacon & Bement.”
    
    On the 21st of February, 1817, G. B. &f D. Her don gave notice to C. N. Bement, that Messrs. Smith & Marshall had assigned to them his note for 600 dollars, dated the 12th of February, and requesting payment to them. And the present suit was brought, with the consent of the plaintiffs, for the benefit of B. & B., to whom the note was assigned : and the case stated, that the note was in possession of the attorney of the plaintiffs, subject to the order of the court. The cause was submitted to the court without argument.
   Yates, J.,

delivered the opinion of the court. The declaration of the plaintiffs, contained in their letter to C. JY. Bernent, of the 27th of April, 1816, that they had observed their partnership was dissolved, and that they were perfectly satisfied that he had assumed the payment of their debt, cannot be considered as a discharge of the firm of R. ⅝- B., so as to confine the remedy of the plaintiffs to B. alone; nor does it appear that it was so understood at the time. The payment of one hundred dollars made on the 13th of August, contradicts such a construction. When he sent the money, he requested the plaintiffs to place it to the credit of the late firm of R. fy. B. The receipt given when the note was taken also show's that this wras the understanding. This receipt expressly mentions that the note, when paid, is to be placed to the credit of the late firm, evidently retaining the parties who contracted the debt originally, and continuing their liability until the note should be paid #off; it was, therefore, the duty of R. to see that B. complied with the engagement made with him, as to the payment of this debt; and that the plaintiffs, knowing of this arrangement, are not, on that account, to be considered in default, for omitting to call on II.. until B.’s insolvency. It wa< the particular duty of R. to guard against such an event, by causing the debt to be paid by B., without delay ; but there appears to have been no interference on his part; and it is probable that his misplaced confidence in his former partner made him easy on the subject. There certainly can be no reason why the plaintiffs, or those beneficially interested under them, should suffer by his negligence. There must be judgment for the plaintiffs for 586 dollars, the amount of balance due on the note, with interest until this term, on the plaintiff’s filing the note given by C. N. B. to them with the clerk of this court, to be canceled.  