
    White, survivor of Rowe, vs. Executrix of L. C. Murphy.
    
    Where the partner who made entries in the books of the firm is dead, the surviving partner is a competent witness to prove the entries : semble.
    
    An advertisement of the dissolution of a firm, and that one partner was alone authorized to collect the debts, is not, of itself, notice to persons who had had dealings with the firm.
    
      Before Gakttt, J. at Charleston, May Term, 1831.
    The following is the report of the case which was adopted by His Honor, the presiding Judge :
    “ This was an action of assumpsit, brought by White, sur-vivot of Rowe, against the defendant, as executrix of L. C. Murphy, on an open account — non assumpsit, and the statute of limitations, were put in. White, the plaintiff, was introduced to prove the entries made in the books by Rowe, and during the existence of the firm of Rowe &. White, to which witness defendant’s counsel objected. The court ruled that his evidence was admissible. Defendant then introduced, as a sett off, in addition to payments allowed by plaintiff, the receipt of Rowe, for the firm of Rowe & White, for $40. Plaintiff’s counsel contended that this receipt ought not to be allowed, inasmuch as it was a receipt dated after the dissolution of the said firm. To this, defendant’s counsel replied that it had not been shown at what time the dissolution took place ; that the witness did not speak positively as to this fact, but from uncertain belief, which was not evidence ; that the time of the dissolution, if there had been a dissolution, might have been shown by the papers of the parties, or by any other evidence than the belief of a witness: he contended that, if there had been a dissolution of the firm, notice thereof should have been traced to Murphy previous to the date of the said receipt, inasmuch as he had, in every instance, taken Rowe’s receipt for moneys due the firm; and of course, any arrangements made between Rowe & White as respected the fact that White only was to collect the debts of the firm, he could not have known without express notice. He concluded by saying, that a bare advertisement of the dissolution of the firm, in a print of the city, and that White was alone to collect the debts, was not sufficient to prove that Murphy had notice thereof; and other circumstances, besides notice of this kind, must be shewn, which would lead to a reasonable conviction that he must have had notice thereof. He said, the very fact of Murphy’s having paid the forty dollars to Rowe, for the firm of Rowe & White, indicated that he knew nothing of the dissolution, or of the arrangement that White was to collect the debts of the firm.”
    The jury disallowed the payment of forty dollars, and the defendant appealed, and moved for a new trial, on the following grounds :
    1. Because White was permitted to prove entries in the books, made in the hand writing of Rowe, during the existence of the firm of Rowe & White.
    
      2. Because the bare advertisement of a dissolution of co-partnership, in a print of the city, was not sufficient evidence to prove that Murphy had notice of the same, or that White was alone to collect the debts of the said firm ; and unless he had notice thereof, the receipt of the forty dollars should have been allowed in discount.
    3. Because the verdict was against law and evidence.
    
      Charles R. Carroll, for the motion.
    -contra.
   Curia, per

O’Neall, J.

In the case of Martin vs. William Walton & Co. 1 McC. 16, the rule was laid down by the constitutional court, that notice of the dissolution of a co-partnership by advertisement in a newspaper “ shall be conclusive on those who had no dealings with the co-partnership, but as to such as have had dealings it shall not be so considered, unless under circumstances it appears satisfactorily to the jury, that it operates as a notice to the party.” The rule, as stated, permits presumptive notice to stand in place of actual, to the customers of a firm. Before we can presume a fact to be true, there must be such proof as will create a reasonable belief of it. The publication of a notice of dissolution,'in a newspaper, cannot create that belief. For it may well be that the party to be affected by the notice, may never have seen the paper, and hence, standing by itself, an advertisement of dissolution has always been held to be insufficient evidence of notice to those who have had dealings with the firm. The evidence in this case, if it was even sufficient to prove the fact of the publication of a notice that the firm of Rowe & White was dissolved, and that White was alone authorized to collect the debts due to it, which may be very well doubted, is wholly insufficient to create any belief that Murphy knew of it. The fact that he paid the $40 to Rowe, on account of a debt due to the partnership, furnishes a presumption fully as strong, that he had no notice, as the publication of notice in a newspaper, in the city where they both resided, does that he had. It follows that the receipt for $40 ought to have been deducted, by the jury, from the plaintiff’s account. The motion for a new trial is granted, unless the plaintiff shall enter a remittitur for $40 on his judgment.

Johnson, J. concurred.  