
    * Thomas Hobart versus Apollos Howard.
    Where one of three copartners in trade took an assignment of the stock and credits of the copartnership, and contracted to pay all debts due from the co-partnership, it was holden that he was liable for a debt due from the copartnership to one of the other copartners.
    This was an action of debt on a bond, conditioned to perform certain articles of agreement of the same date with the bond.
    The articles of agreement were made between Caleb Howard and the plaintiff, on one part, and the defendant on the other part; and in them it was recited that the said Caleb, Thomas, and Apollos, had for some time been copartners in trade, and in manufacturing hollow iron ware, under the firm of Howard Hobart &f Co.; that debts were due to and from said firm; that the parties had agreed that all the debts due to them, the said Caleb, Thomas, and Apollos. jointly, should be assigned to the said Apollos, who, on his part, had agreed to pay all debts which the said Caleb, Thomas, and Apollos, jointly owed to any person or persons, for or by reason of any con tract whatsoever, in any ways appertaining to their joint trade and copartnership. Whereupon the said Caleb and Thomas, in consideration of 4500 dollars paid them by the said Apollos, assign to him, his executors, &.C., all and singular the debts and sums of money owing to them, the said Caleb and Thomas, severally, or jointly with the said Apollos, for or concerning their joint trade aforesaid, and all goods, wares, and merchandise, with the coal, ore, and all kinds of stock, of what name or nature soever, for either the blast or air furnace, &c., and all their, the said Caleb’s and Thomas’s, right, title, property, &c., in and to the said debts or any of them ; also all the bills, books, and writings, whatsoever, concerning the said debts, and the late copartnership, between the parties; to hold the same to the proper use and benefit of the said Apollos, his executors, &c., without accounting for the same. There is then a power to sue for the said debts, with a covenant that the said Caleb and Thomas will not do or suffer any act to impede the said Apollos, his executors, &c., in the getting, obtaining, or recovering, the said debts, or any of them ; * and a further covenant to make and seal such other powers, &c., as may be necessary. In consideration whereof, the said Apollos promises and engages that he will well and truly pay, or cause to be paid, all the debts due to the several creditors of the s^iid Caleb, Thomas, and Apollos, and will, within one year from the date, procure to the said Caleb and Thomas, sufficient discharges from the said creditors, and at all times save harmless and indemnify the said Caleb and Thomas, their executors, &.C., against all persons, to whom the said Caleb, Thomas, and Apollos, are indebted, touching or concerning the said copartnership, and from all actions, &c., which shall at any time be brought against the said Caleb and Thomas, for any debts, or sums of money, owing for or by reason of any bill, bond, book account, promise or contract, touching the said copartnership.
    At the last October term in this county, this action, and all demands between the parties, were by agreement referred to three members of the bar in this county, who were to consider whether the plaintiff is a creditor whom the defendant is obliged to pay, within the terms of the said articles of agreement, and of the condition of the said bond ; and to report their opinion specially, with the evidence on which their opinion should be founded; for the purpose of obtaining the opinion of the Court, whether by law the ''aiutiff ought to be considered “s a creditor within the true meaning and intent of the said articles and bond; such judgment to be entered thereon as the Court should direct, and execution to issue accordingly.
    The referees made a report at this term, which was recommitted, with an agreement that they might afterwards report in any county, giving notice to the parties. Their final report was, accordingly, made at the succeeding March term, in Suffolk.
    
    * The report states, as in evidence before the referees, that in transacting the business of the copartnership, each of the copartners had taken promissory notes payable to him self, which were the property of the firm; and they give their opinion that those notes were intended by the parties to be transferred to the defendant, by the grant of what was due to the said Caleb and Thomas, severally. Other facts are stated, and the reasoning of the referees is given at much length in the report, from which they deduce their final opinion, viz.: That the plaintiff is a creditor, whom the defendant is bound by the articles to pay ; that the bond, on which the action is brought, is forfeited ; and that the plaintiff is entitled to have execution for the sum of 459 dollars 7 cents, with the costs of Court and of the referees.
    
      The Solicitor-General and Mitchel for the plaintiff.
    
      B. Whitman and Baylies for the defendant.
   Curia.

Without considering the reasonings of the referees, it is plain that all the difficulty in this case has arisen from a misconstruction of the articles of agreement. The defendant undertook to pay all the debts of the copartnership, to whomsoever due. Now, one of the copartners may as well be a creditor of the firm as a stranger ; and if he was, the defendant agreed to pay him. On the other hand, had the plaintiff owed the firm, he would have been held to pay the debt to the defendant. Just as, in the case of aggregate corporations, a corporator may be either a creditor or a debtor of the corporation. Let judgment of forfeiture be entered, and let execution issue for the sum reported by. the referees, 
      
      
         [The report would have been more satisfactory, if it had stated the nature and origin of the plaintiff's claim. If, before the assignment, it could only have been enforced against Caleb and Apolles, the question would be, whether it was a debt due to a creditor of Caleb, Thomas, and Apollos, within the terms of the defendant’s covenant; and furthermore, whether it was not a debt owing to Thomas, for or on account of the joint trade, within tire terms of his assignment. —Ed.]
     