
    EMRIE v. GILBERT & CO.
    A non suit will not be ordered because there is an item in the plaintiff’s evidence, tending to prove him a partner with the defendants, but that will be left to the jury.
    Nor will the court rule out such evidence on the application of the plaintiff after it is in.
    The transaction attending a settlement, when a receipt in full was given, may be shown, and if there be a mere mistake in the amount, the receipt is not conclusive; but if by agreement a receipt be given for tbe sum in full, without mistake, though for less than due, it will be conclusive.
    If the parties were partners when the suit was commenced, that is a good defence under the general issue; but if the partnership had been closed and a. balance found due the plaintiff, he may recover in assumpsit.
    If an order has been given to be accounted for when paid, proof of payment, or that it has availed the holder the same as money, is necessary to a recovery.
    Where parties have transferred property for fraudulent purposes, the law will not aid them, but leave them with tlieir fraudulent gains.
    Assumpsit, common counts — plea, non assumpsit, witb notice of' setoff.
    The witness was sworn to bis book account, and then called Bryan, a witness, who testified that the defendants were partners, and he understood from being in and out of the office the plaintiff was ■also one of the firm.
    
      O. Parish now moved for a non suit,
    because the plaintiff had shown he was a co-partner with the defendants.
    
      G. Swan objected,
    and moved to rule out Bryan’s evidence. He cited 5 O. 517.
    
      O. Parish objected
    to proving the contents of the order without producing it.
    
      Pryan was recalled
    to explain the transaction, when the receipt was given, and the order passed.
    
      Parish objected.
    
      Phrhy, contra,
    stated his object to be to prove the whole trans■action fraudulent, which could not avail the defendants, and to show ihat the receipt was not in fact given for money,
   WRIGHT, J.

The evidence is from the plaintiff’s own witness, and will not be ruled out. The motion for a n'on suit is overruled. The evidence'is not conclusive of the fact of partnership — the jury ■can act upon it. The testimony is, that he understood, from being in and out, that the plaintiff was a partner.

Much evidence was then introduced by the parties touching their accounts, and of the declarations of the parties at various times as to the partnership. The defence gave in evidence a receipt from the plaintiff in full of all demands, and gave evidence that when the Hemisphere was established the parties were in partnership; but the plaintiff became embarrassed, when they came to an understanding, and the receipt was given to keep up the appearance of a dissolution, and to prevent the plaintiff’s creditors from attach- [765 ing the property.

The plaintiff in rebutting, called a witness, in reference to an order on Kesling, transferred to the Cincinnati type foundry, and that Gilbert said he was to account to the plaintiff for it when paid, ■and that it had been put in suit.

WRIGHT, J. The party is only proving the fact of the existence of the order and its transfer, to introduce the declarations of the defendant, that he was to account. He is not seeking to prove the contents of a writing kejjt back. Admitted.

Kirby and G. Swan, for the plaintiff, argued to the jury, and

Gilbert and O. Parish contra.

WRIGHT, J. It is competent to correct a mistake in the receipts in the amount, and to show the real state of the transaction, and if it shall turn out, that upon controversy about the amount due, a receipt was given for a certain sum in full to settle, that will conclude the parties. The evidence may be given.

WRIGHT, J. to the jury. If the plaintiff was in partnership-with the defendants when the suit was brought in the matter in. controversy, he cannot recover. But if a dissolution-took place before suit, and the partnership transactions were settled, and a. balance found due the plaintiff, he may recover for such balances And if the partnership transactions were fully settled, and. satisfied,, either with money or by a negotiable note, as expressed in the-receipt, the plaintiff cannot recover, although the note remains unpaid, because he must resort to the note, which is an outstanding subsisting contract, and either sue on it, or produce and cancel it,, if he rely upon the common declaration.

As to the order on Kesling, if the evidence satisfies you that the-defendants were only to account for that when collected, then the-plaintiff cannot recover on it until there is proof of its payment, in whole or in part, or a discharge availing the defendant as money. If given without such condition, and it has availed the defendants asín oney, the plaintiff may recover without proof of payment.

766] *As to the receipt. If it were given for the fraudulent, purpose of covering up the property of the plaintiff, when that fact appears neither party will be permitted to derive advantage from-, the use of the fraudulent instrument. Its notice may be shown, and if ascertained tobe fraudulent, courts of justice will not restore-either party to what he has parted with under the arrangement, but. leave the parties just where they have placed themselves.

Verdict and judgment for the plaintiff.  