
    Allstan’s Adm’r. vs. Contee’s Ex’r.
    The assignee ot ^‘'tpen'lecTuó’í* support an action onf.umora'iíáma indebted to j*«á cOUn“andPc tram-ferredhiJ interest therein to J* who gave notice thereof to Ht and he assumed payment
    ^ were fact, and eir-to wh«S or not the defen-thtTpiain-the claim sueá
    ’a haring two on™enaaMoúntí b makes pay»™1 ney on account, applying spit>alt» JJ the claim prior in p°wLre thecourt heiii that the eri-the case out of tb©
    Error to Frederick County Court. This was an action of assumpsit, brought on the 23d of July 1812, by the surviving partner of J. and 6. Mistan, (whose administrator the plaintiff in error is,) against the executor of the surviving partner of T. and A. Contee, (the defendant in error.) The declaration contained five counts. The first for ar-tides properly chargeable in account. The second for mo - ney laid out, expended and paid. The third for money had and received. The fourth for money lent and advanced; and the fifth on an insimul computassent in the life-time of T. and A. Contee, &c. ed the general issue, and the act of limitations. The defendant plead - *
    
    1. At the trial the plaintiff read in evidence the deposi tion of Thomas Johnson, taken by consent, who deposed, “that he was well acquainted with the firm of J. and Brothers, and that the firm of T. and A. Contee dealt extensively with them; that on the dissolution of the partnership ot J. Alistan and Brothers, J. and C. Alistan took the balances of the former concern upon themselves, by the consent of the parties, and became responsible for their debts. That he was acquainted with T. and A.* Contee, for many vears; that they were partners in business and trade under the firm ot 1 \ and Ji* Contee^ and had extensive dealings with the house of J. and C. Alistan. That he was in habits of intimacy with J. and C. Alistan, and knowing they were largely in advance for T. and A. Con-tee, he advised them to make out their accounts and have a settlement. That he saw these accounts after they were made and delivered to Contee, m Contee’s possession in February 1807. That he at that time asked A. Contee give him a draft on the house of J. and C. Alistan for a small sum due him from said Contee, as he (the witness,) knew they were the agents and correspondents of the Con-tees, but he refused to give the draft, saying and taking up the accounts of the Allstans, that T. and A. Contee owed those gentlemen upwards of, or between 9 and 10,000 dollars. That he has heard A. Contee say that there was due to the house of J. and C. Alistan more than §4000, for losses of shipments of tobacco made by J. and C. Alistan on account of T. and A. Contee. That it is the usage and custom of merchants, who credit for shipments of tobacco, to charge interest from the time of the credit, on the difference, if the proceeds of sale do not amount to so much as is credited or advanced. That A. Contee said the shipment was made to Bremen, and that they lost more than S40Q0 on it, being the difference between the net proceeds of sales of the tobacco, and the amount advanced or credited on the shipment to T and A. Contee by the Allstans. That it is the usage and custom of trade in Baltimore between merchants, to charge interest on their advances, and credit interest on payments made to them. The plaintiff further gave in evidence, that A. Contee died ill the lifetime of his father, and partner, T Contee, in February Í810, and that T. Contee survived him. and died in January 1811. The defendant was adinitted to be his executor. He further gave in evidence, that the firm of J. and C. Alistan delivered their account current in 1807 to A. Contée, of the firm of T. and A. Contee, and that A. Con~ tee, whilst the said account was in his possession in 1807", acknowledged that T. and A Contee were indebted to the firm of J and C. Alistan in the sum of between 9 and 10,000 dollars. He also proved that C.' Alistan, of the house of J. and C. Alistan, died in April 1812. He then produced and read in evidence sundry letters admitted to have been written, some of them by T. Contee, and the others by A■ Contee, ¡o J. and C. Alistan, acknowledging themselves indebted to J. and C. Alistan, and promising payment, making n ention of accounts received but not examined, &c. These letters are dated 16th of April 1802, 27th of May 1806, 20th and 28th ol April 1807, 16th of July 1807, 18th of August 1807, 15th and 29th December 1807, 2d July 1809, 5th' of January 1808, and the 14th of January 1810. The defendant then read in evidence the account filed by the plaintiff No. 1, it being the account declared upon m the first count of the plaintiff’s declaration; and also the accounts produced by the defendant. No. 2, 3, 4 and 5. No. 1 is an account of T. and A. Contee with and C. Alistan, the first item in which, on the 5th of December 1803, is “To balance due J. Alistan ánd Brothers, 822,179 86,” and stating a balance due on the 24th of August 1810, of 84479 50 for principal, and 82717 55 for interest, and charging afterwards in that account, on the 23d July 1810, “To the widow of John Langs, Son & Co. for loss on two shipments, &c. 84165 57, and charging cash paid for pork, 84 25, and charging interest on 84165 57. No. 2 is an account of T. and A. Contee with J. Alistan and Brothers, commencing in July 1803, and ending on the 3d of December 1803, charging a balance then due of 821,492 97. No. 3 is an account of T. and A. Contee with J and C. Alistan, commencing on the 5th of December 1803, with a charge of “Balance as per account rendered 822,179 86.” In this account is a credit on the 10th of December 1803, of “Cash received of A. Contee, 86400;” another credit on the 30th of July 1804, of “71. and A. Contee’s adventure per ship General Metier to Bremen, 815,352 15;” and also a credit on the 3d of August 1804, of i‘T. and A. Contee’s adventure per ship Nancy to Bremen, 83505 92;” closing with a balance due on the 13th of August 1804 of 84464 32. No. 4 is an account of T, and A, Contee with J. and C. Alistan, Commencing on the 13th of August 1804, with a charge of “amount of debts as per account rendered of this day, 835,279 71;” and crediting on the same day, “by amount of credits as per amount rendered of this date gl 1,957 S3;” closing with a balance due on the 4th of September X8.04, of 8944t 58. No. 5 is an account of T. and A. Contes with J. and C. Alistan, charging balance per account rendered in June 1804, of 89441 58, and closing on the 34th of August 1810, with a balance due of 813,909 26; which accounts, so produced by the defendant, were rendered by J. and C. Alistan to T. and A Contee, and contain an entry in 1803, to the debit of T and A. Con<lee, of 822,179 86. of a debt due to the former firm of Alistan and Brothers, then composed of J. H and C. Alb Stan, of which firm J. and H. Alistan are still living. And the plaintiff offered the above evidence to prove that 71 and A. Contee were in possession of the accounts of J. and C. Alistan by them rendered, containing the said debit, before and at the time they acknowledged the sum due from them to J. and C. Alistan, and promised payment thereof; and that in this action they were liable to be char* ged with the debt. The defendant then prayed the court to direct the jury, that in forming their verdict they are not to consider as a charge against tne defendant, any balance originally due to J. Alistan and Brothers. And this opinion and direction the Court [Shriver and Nelson, A. J.J gave. The plaintiff excepted.
    2. The plaintiff then prayed the opinion of the court to the juiy, that if the jury find from the evidence that J, and C. Alistan had accounted with the firm of J. Alistan and Brothers for the sum due from 71 and A. Contee, and that T and A. Contee, with a knowledge that J. and C, Alistan had settled said balance for them with J. Alistan and Brothers. promised to pay the same to J. and C. Alb slan, and that the same was debited to them, with other transactions with J. and C. Alistan, with the consent of 71 and A. Contee, that then the plaintiff is entitled to recover. Which opinion and direction the court refused to give to the jury; because, in their opinion, n.) evidence of tne supposed facts stated in (his prayer had been given to the jury. The plaintiff excepted.
    S. The plaintiff then prayed the opinion of the court to the jury, that, the testimony contained in the deposition of 3T. Johnson, and the letters of 71 and A, Contee, and their, respective promises to pay ./. and C. Alistan the balance on their account stated, after 71 and 4. Contee had for a length of time been in the possession of the said account stated, containing the charge against them of the balance due to Alistan and Brothers, and the accounts read by the defendant to the jury, is competent and proper evidence to be left to the jury, to prove — 1st. That J, and C. Alb stan had accounted with the firm of Alistan and Brothers for the debt due them from V. and A. Contee. 2d. That 71 and A. Contee had notice of such fact, and approved of it by their subsequent promises to pay the said balance to J. and C. Alistan; and prayed the court to be permitted to address the jury on the above evidence to establish those facts. This prayer also the court overruled. The plain» tiff excepted.
    . 4. The plaintiff then proved that the firm of Mistan and Brothers was dissolved on the 31st of December 1803, and the firm of J. and C. Mistan commenced on the 1st of January 1804. He then read the account produced by the defendant, containing a credit of 86,400, made by A. Contee, under the date of the 10th of December 1803, during the partnership of Alistan and Brothers, and before the partnership of J, and C. Alistan, and prayed the opinion of the court to the jury, that the same entry in the account filed by the plaintiff does not preclude or debar the jury from placing the said sum to the credit of the balance due Alistan and Brothers from T. and A. Con-tee, if the jury, from the whole evidence, should be of opinion that the said payment was made to Alistan and Brothers before the partnership of J. and C. Alistan had existence} and that the jury might rectify any error in said account, if in their judgment, on the whole evidence,-any error existed either in the debits or credits. This opinion the Court, [Shriver, A. J.] also refused to give to the jury. The plaintiff excepted.
    5. The plaintiff then proved by a witness, that he (the ,witness-,) as the agent of T. and A. Contee in 1803, purchased large quantities of-tobacco for them, which was, by their direction, in that year shipped to the house of Alistan and Brothers, and by them in that year received; that the witness purchased a part of the said tobacco by drafts of T. and A Contee on the house of Alistan and Brothers. He then read in evidence the letter and accounts of Widow of John Langs, Son, & Co. The letter is dated Bremen, 22d of April 1803, addressed to J. and C Alistan, giving an account of the sales of 50 hhds. of tobacco by-the Nancy 4,31-8
    And 205 by the General Mercer■ 17,930
    R 22,254
    The accounts of sales of the several hhds. of tobacco so shipped and .the prices. The account of the sales of the 205 hhds. commenced on the 5th of October 1804, and ended on the 5th of March 1805, and amounted--to R 25,969 37, and deducting the charges, &c. left a balance-of R. 17,93,6 to the credit of J. and C. Alistan. The account of the sales of the 50 hhds. commenced on the 7th bf December 1804, and ended on the 15th of February 1805, amounting to R. 6,342 10, and deducting for charges, &c. left due R. 4,318, to be credited to J. and C. Alistan. The defendant then read in evidence the accounts X and Z, rendered to T. and A. Contee by J. and C. Alistan, the first being an account of 205 hhds. tobacco shipped to Varel for account and risk of T. and At. Cmtee} per the ship General Mercer, and consigned tp Widow of John Langs, Son, & Co. merchants, Bremen, the tret proceeds after deducting charges, &c. amounting to §15,352 15; and the second an account of 50 lihds. of tobacco shipped to Vance, for account and risk of 71. and A. Contee, per the ship Nancy, and consigned to Widow of John Lanes, Son & Co. merchants, Bremen, the net proceeds being, after deducting charges, &c. S3,505 91; and also produced the accounts filed by the defendant. The plaintiff then gave in evidence, that the entries in said accounts, under date of the 30th of July and 3d of August 1804, of §15,352 15, and §3,505 91, were for tobacco shipped by T and Jl. Conlee to the house of Mistan and Brothers, before the house of J. and C. Mistan had existence. Lie then prayed the court to direct the jury, that if they believed from the evidence that the firm of T. and A, Contee repeatedly acknowledged they owed the firm of J. and C. Alistan the debt due them; and if it appears from the accounts exhibited to the jury, that no such sum could be due to J. and C. Alistan, unless the above credits were applied to the balance due Alistan and Brothers’, and if the jury find from the evidence that the tobaccoes for which the said credits are given, were shipped to the house of Alistan and Brothers, and not to the house of J. and C. Alistan, and that the accounts produced contain debits and credits relating to both firms, and that any mistake, has been made, that then the jury are not precluded or debarred from rectifying any such mistake, if they find one to exist, but may apply said credits, if in their judgment on the whole evidence it is proper, to the account of Alistan and Brothers. This direction the Court £Shriver, A. J.3 refused to give to the jury. The plaintiff excepted.
    6. The defendant then prayed the opinion of the court to the jury, that upon the whole evidence given in this cause, the. facts proved were not sufficient in point of law to entitle the plaintiff to recover. And this opinion the Court, [Shriver, A. J.] gave to the jury. The plaintiff excepted. Verdict and judgment for the defendant. The plaintiff having afterwards died, his administrator brought the present writ of error, returnable to this court.
    The cause was argued before Chask, Ch. J. and Buchanan, Earle, Johnson, Martin, and Dorsey, J.
    
      Taney, for the Plaintiff in error.
    The facts established by the record are. that T. and Jl. Contee being partners in trade, became indebted to the house of Alistan and Brothers, Composed of ■/. C. and II Alistan. Alistan and Brothers dissolved partnership on the 31st of December 1803, and the house of/, and C. fllhlan began business on the 1st of January 1804. By agreement between the parties, /. and C. Alistan took the balances due to Alistan and Brothers, and became responsible for the debts due from them, and T, 
      and A. Contee had notice of this arrangement, and assent» ed to it. The balance due from the Conlees was brought into their account with J. and C. Alistan. The account was rendered to the Contees with this item in it, and they promised to pay if. Ii appears also from the accounts, that the account of Alistan and Brothers, and J. and C. Alistan, with the Contees, were in some items blended together, and what properly belonged to the one was put in the other. Upon this statement it is contended — t. That the plaintiff below was, and his administrator, the plaintiff in error, is entitled to recover the balance formerly due to Alistan and Brother's. 2. That the plaintiff in error is entitled tore-cover on the count for sundry matters properly chargeable in account, or on the msimul computassent ~ 3. That if there was ány mistake by putting in the account of J. and C. Alistan credits to T. and A. Contee, which properly belonged to the account of Alistan and Brothers, the plaintiff was not estopped from showing the mistake, and the jury had a right to correct it.
    On the first point he cited Fenner vs. Meares, 2 PP. Blk. Rep. 1269. Israel vs. Douglas, 1 H. Blk. Rep. 239. Surtees vs. Hubbard, 4 Esp. Rep. 204. Peake’s Evid. 240, 241; and Onion vs. Paul, l Harr. & Johns. 114.
    Magruder, for the Defendant in error,
    cited Freeland vs. Heron, 7 Cranch, 151; and Hammersley vs. Knowlys, 2 Esp. Rep. 666.
   -Johnson, J.

delivered the opinion of the court. The declaration in this case is in the usual form, containing amongst others, a count on an account, and an insimul computassent„ The questions which arose were as to (he form of the action, and as to the merits of the subject in controversy.

The facts, as the plaintiff offered evidence to prove, are that T. and A. Contee were indebted to J. C. and //. All-stan, under the firm of Alistan and Brothers. The partnership of Alistan and Brothers was dissolved on the 31st December 1803, and the next day J. and C. Alistan commenced business, and took upon themselves the collection and payment of the debts which were due from and to Alistan and Brothers. T. and A. Contee were acquainted with the dissolution , of the first, and commencement of the new partnership, and continued their dealings with J. and C. Alistan.

In the account rendered by J. and C. Alistan to T. and A. Contee, long before the suit was brought, they are charged with a balance which toas due to Alistan and Brothers, as then due to J. and C. Alistan. And whether that item could be recovered in this action, is the subject of the first bill of exceptions. In this bill of exceptions the plaintiff offered evidence to prove, that T. and A. Contee, before the account of J. and C. Alistan was presented to them containing a charge for the above balance, had been furnished with an account by which that balance was ascertained •to have been due to Alistan and Brothers) and that with this information on the part of T. and A. Cantee, they acknowledged the balance as charged to be due, and promised the payment thereof. On this evidence “the defendant prayed the court to direct the jury, that in forming their ■verdict, they are not to consider, as a charge against the defendant, any balance originally due to Alistan and BrothersWhich opinion and direction the court gave.

The broad ground taken by the court below, that if the debt was originally due to Alistan and Brothers, the suit tould not be sustained, seems to rest on a principle, that the assignee óf a debt resting on an open account, could in Ho instance support an action in his own name to recovet such debt. The law on authority appears tobe otherwise. In Fenner vs. Meares, 2 W. Blk. Rep. 1269, the assignee of a bond, on a promise by the obligor to pay him the debt, sustained an action of assumpsit on the promise. The principle, that in certain instances the assignees of debts may sustain actions in their own names, is also established in Israel vs. Douglas, 1 H. Blk. Rep. 239. Surtees vs. Hubbard. 4 Esp. Rep. 205. And in 2 Peake’s Evid. 240, 241, the action was sustained in the name of two partners to ré* cover a debt which was originally due to one. If then a suit can be sustained in the name of two to recover a debt originally due to one partner, surely no reason exists why tivo partners should not, in then own names, recover a debt which Was due to three, when one of them has transferred to the others his interest, and when the debtor, with the knowledge of the fact, acknowledges the debt to be due, and promises them the payment. To the debtor it is of no moment in what right he is compelled to pay the debt provided he is not liable again for the money in a different right; but, as the payment to the assignee of an account or bond, would exonerate the debtor from the original creditor, so will a judgment on the assigned claim also discharge him from the original cause of action, whether the recovery is founded on a formal count stating the original debt, assignment and promise, or on an account disclosing the nature of the original transaction.

On the second bill of exceptions the court refused to give the opinion as prayed on the part of the plaintiff, that “if the jury find from the evidence that./. and C. Alistan had accounted with the firm of Alistan and Brothers for the sura due from T. and A. Cantee, and that they, with a knowledge thereof, and that J. and C. Alistan settled with Ali-stan and Brothers, promised to pay the amount to ./. and C. Alistan, then the action for that item was sustainable.M The court below refused to grant the prayer, not because the law was against the application, but because the court were of opinion that there was no evidence of such facts. In this opinion we think the court were mistaken; for the various accounts disclosing the whole transaction, united with the repeated promises to pay, together with the parol evidence admitting a large sum to be daa, were cimun-stances proper to be left to the jury.

The same considerations which induced the belief that court below erred in the second bill of exceptions, are equally applicable to the third.

The fourth bill of exceptions, in which the jury were precluded by the opinion of the court from applying the payments made by T. and Jl. Cantee to discharge the item in the account of J. and C. Mistan, which was due to Mistan and Brothers, is not very material to the merits of the cause; for as the plaintiff has a right to recover for that item, it is unimportant how the credits are applied. But this court are of opinion, that as the claim of Mistan and Brothers composed a part of the claim of J. and 6. Jlllstan, and was prior to the debt due to ,/. and C. Jlllstan, without any special direction the payments ought to have been applied to that claim, more especially as the fund» from whence the money was received, was forwarded to Mistan and Brothers before the new partnership commenced, and there is nothing in the account, on which the suit is brought, to preclude sucli application.

These remarks are equally applicable to the fifth and sixth bills of exceptions, except in the last, the defendant’s defence, and the opinion of the court, would be sustained if the act of limitations barred the action. But this court are of opinion that the evidence takes the case out of the act of limitations.

This court are of opinion, that the court below were mistaken in the'opinions given in all the bills of exceptions*

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  