
    [Philadelphia,
    Saturday, Jan. 4, 1812.]
    *Salmon and Brown against Davis.
    If one of two joint partners releases to a debtor of the partnership, notwithstanding he had no authority to release more than his own moiety of the debt, the action against the debtor is gone.
    Vide, 2 Roll. Abr. 411; Bro. Release 26.
    This was an action to recover the amount of three promissory notes, drawn by the defendant in favor of the plaintiffs, on the 18th February, 6th March and 5th April 1805. The pleas were non assumpsit and payment with leave, &c., and under the last plea the defendant gave notice of a special defence, that the debt had been released by Salmon one of the plaintiffs.
    TJpon the trial before Brackenridge J. at Nisi Prius in November last, the defendant having admitted the handwriting to the notes, gave in evidence that on the 3d April 1805, the plaintiffs dissolved partnership, and on the same day gave notice of it in the public papers, requesting all persons indebted to the firm to make payment to Salmon who was authorized to receive, and all who had demands to call upon him for payment. On the 31st August 1805, the defendant made an assignment of all his property in trust for the benefit of such creditors as should sign a release within a certain time; and the release was executed by “ James Salmon for Salmon and Brown.”
    The plaintiffs’ counsel then offered to prove by Salmon himself that he had no authority to release Brown’s part of the debt; that he communicated that circumstance to Davis at the time of signing; that by an agreement between Salmon and Brown, the right of Brown to a moiety of the debt wras reserved to him ; that Brown forbad Salmon to sign; and that the present action was entirely for the use of Brown as to that moiety.
    The defendant objected upon the grounds, 1. That Salmon’s testimony went to annul an instrument to which he had given effect. 2. That he was interested. 3. That the transaction beiug in writing, it could not be varied by parol evidence.
    Salmon agreed to discharge his interest by a release; but his Honor decided that he could not, and refused his testimony. In consequence of this opinion the plaintiffs suffered a nonsuit, which they now moved to take off.
    *<7! It. Ingersoll for the plaintiffs.
    The testimony was improperly rejected, because it was relevant to the issue, and Salmon had no interest that a release would not have removed.
    1. It was relevant. Salmon could in the first instance have released his right alone to Davis, without infringing that of Brown. The partnership had ceased. Salmon and Brown were the equitable proprietors each of a moiety of the partnership property and credit, though undivided. Each might make such disposition of his share as his interest, necessity, or caprice might dictate. He might abandon it to his partner, in which case the whole would become a several interest, or he might forfeit it by operation of law. The law in a variety of cases produces this effect. One partner becomes bankrupt; his assignees become tenants in common with the solvent partner; and the bankrupt is as much discharged from all interest, as in a private transaction, and might become a witness. Smith v. Stokes, 1 East 363. So in the case of an execution which is levied upon the effects of one partner; the purchaser and the other partner become tenants in common. Heydon v. Heydon, 1 Salk. 392; M’Carty v. Emlen, 2 Dall. 277; Eddie v. Davidson, Doug. 628. If then by operation of law a man’s partnership rights to property may be divested, so may they be by his own act, for the act of law is but consequent upon his own, in every case of misfortune or crime. A partner possessed of a bale of goods may transfer his share to a stranger, or to his co-partner; and if to a stranger, his partner is the equitable owner of the remaining moiety. If then a man may transfer tangible property, and so divest his interest, why will not the same principle operate as to a debt ? It is but substituting the debtor himself in place of a stranger, and considering not the name but the effect of the release, which is a transfer. The other partner still continues proprietor of his moiety, and on that alone brings his suit, although he uses, as he is compelled for the sake of form merely to use, the partnership name. It is also to be considered that the release is a deed, which one partner cannot execute for another, by which one partner cannot bind ^another, and which therefore cannot extend beyond the right of the individual who executes it. Gerard v. Basse, 1 Dall. 109. Nay, the authority of one partner to bind another even in matters of a commercial nature, is not inherent in the nature of the association, it is but an implied authority, it may be rebutted, Viscount Galway v. Matthew, 10 East 261, and we offered evidence that it was rebutted here. If then Salmon could transfer his own moiety, and could not bind Brown by his release it follows that his moiety only was affected; that lie left Brown in full possession of his own share, and that Brown upon proving these facts was entitled to recover his moiety notwithstanding the release.
    . 2. The testimony being completely relevant, the only question is, whether it came from a disinterested witness. Now whatever might have been Salmon’s interest independent of a release, no principle of law stood in the way of his executing a release at the trial. The object of the release was merely to discharge or disavow an interest in the present suit; and if such a discharge could be effected by a release, as no doubt it could, the objection of interest was at an end. There was nothing in the character of Salmon as partner that distinguished this from the common case. Young v. Bairner, 1 Esp. N. P. 103.
    
      Hallowell contra,
    was stopped by the Court.
   Per Curiam.

"Whatever may be the state of the question as to Salmon’s interest, still he was properly rejected. His testimony was irrelevant, inasmuch as by his release to Davis, even supposing he released only his moiety of the debt, the action was gone. The motion to take off' the non-suit is, therefore, denied.

Motion denied.

[Cited in 4 W. & S. 290.]  