
    Wareham Morse vs. Josiah Bellows.
    Where A promised 13 if he would procure an assignment of certain bonds held against him by individuals in Connecticut, for the payment of claims due from him therein specified, he. would pay B the amount of said claims, it was kold-en that a subsequent procurement by B of an assignment of said bonds was such a compliance with the proposition of A as to constitute a binding contract betwixt said parties, and that there was a sufficient'consideration and mutuality betwixt the . parties, notwithstanding there was no original promise on the part of A to comply with said proposition.
    in such case, an assignment of a bond is;a valid consideration for a promise of payment to the assignee¿ and, where.promise of payment is made to him, a • suit may be maintained for the amount of the claim in the assignee’s own name; and it is immaterial whether the promise be before, or subsequent to . the assignment. ⅜ • .
    When a proposition is made as above there must be a compliance within a reasonable, time ; and what is. a reasonable, time, when the contract is silent upon the subject, is a question of law. Under the circumstances of this case, though a period of nearly; two years had elapsed, a compliance within such time was holdm to he reasonable, - .
    
      One partner cannot bind his co-partner by deed to any new liabilities, but he may, by deed, bar him of a right which they possess jointly, and may individually adjust, receive payment, or release any partnership debt; and this may be done by either partner after a dissolution of the partnership.
    A certificate of a register of probate is not competent evidence of a grant of letters of administration. If a record of the appointment is kept, a copy of the record is the proper evidence.
    Where individuals, as assignees of another, attempt to assign a deed for him, a recital in the deed of their authority to act is insufficient. Their authority as assignees must be shown.
    Where A promised B a certain consideration if he would procure to himself an assignment of a bond outstanding against A, it was holden that A was not liable on such promise, until such bond was produced,or shown to have been lost by B subsequently to an assignment to him. An assignment of the debt secured by said bond was holden to be no evidence of a compliance with the contract.
    This was an action of assumpsit. There were four counts in the declaration.
    The first count is on a note dated February 12, 1830, for $>1217.04, payable to the plaintiff on demand and interest.
    The second count is for $>5000 money had, and received.
    The third count alleges that the defendant, on the 31st of July, 1817, bound himself by deed to W. C. Hall, to Charles and David Churchill, under the name and firm of C. & D. Churchill, and to Sylvester and Leonard Pulsifer, under the name and firm of S. & L. Pulsifer, to pay them respectively fifty per cent, on all sums due to them from one Gordon Whitmore within one year after a recovery in a suit about to be commenced in the circuit court of the United States in this state, in the name of said Whitmore against Mills Olcott ; — that Whitmore was indebted to Hall in the sum of $3000, to S. & L. Pulsifer #2000, and to C. & D. Churchill $2000 — -and that a suit was duly commenced, and a recovery was had in the name of said Whitmore against the said Olcott, on the 21st of March, 1821; — -that on the 31st of May, 1828, it was agreed between the plaintiff and defendant that, in consideration that the plaintiff would procure an assignment to himself of the said deed, given by the defendant as aforesaid to Hall and others, he (the defendant) should pay the plaintiff all such sums as he was bound to pay Hall and others on demand; and that on the 23d April, 1830, the plaintiff' procured an assignment to himself of the said deed, and that there was then and there due on the same to the said Hall and others the sums respectively above named, of all which the defendant had notice, and thereby became liable, and then and there promised the plaintiff to pay said sums on demand. Yet, though often requested, to wit. on the 10th day of April, 1833, he hath not paid the same, but neglects.
    The fourth count was like the third, on a like deed, given by the defendant to W. Cooper, alleging that said Whitmore was indebted to said Cooper in the sum of $1000, and that an assignment was procured, demand made, &c. ; but the defendant had not paid said sum.
    The cause was tried at the September term, 1834, on the general issue.
    The making of the note mentioned in the first count was admitted by the defendant. Anthony W. Morse testified that in May, 1828, or 1829, the defendant told the plaintiff that if he (the plaintiff) would procure from the creditors mentioned in the 3d and 4th counts a release, he (the defendant) would pay him the amount of the claims which those creditors had upon the defendant.
    This Bellows repeated several times, but refused to give a written contract, saying his word was as good as his bond. George Wheeler testified that in May, 1828, or 1829, he heard the defendant make declarations and offers to the effect above stated by A. W. Morse.
    The plaintiff offered in evidence the report of an auditor in the case Wareham Morse vs, Gordon Whitmore and Josiah Bellows, as trustee, in which the auditor found the amount of the claims of Whitmore’s creditors, mentioned in the 3d and 4th counts in this case against Bellows to be, with interest to May 7, 1831, #1989.37. The plaintiff also offered in évidénce a disclosure made, by the' defendant in. a suit brought by-A. W, Morse against Gordon .Whitmore as principal, and the. said Bellows as trustee-, in which disclosure the defendant stated that he gave to the creditors of Whit-more, mentioned in the third count in this casera bond eon-ditionéd to pay them 50 per cent., on their claims, in-one -year after the recovery in the suit 4o be brought against Ol-cott ; and that he'-gave a similar bond to W.- Cooper. '
    It. appeared by'the same disclosure, that- the suit by Whit-more vs. Olcott, lix the circuit court in this state, was terminated by a compromise between Bellows and Olcott, on the 21 March, J 621.
    The plaintiff also offered in.evidence a deed, made by S, Pulsifer, dated April 23, 1830; another, made by. Charles Churchill, dated April. 21, 1830 ; another, made by Samuel Cooper, dated April 21, 1830, and another, made by Samuel .Cooper and Henry Carrington, dated April 20, 1830. S. Pul-sifer by his deed assigned to Wareham Morse all his right,, and all the right of, S. & L. Pulsifer to any claims against Gordon Whitmore, or Josiah Bellows, by bond or otherwise-: C. Churchill, reciting in. the deed that he was surviving partner of the firm of C.’ & D. Churchill, assigned by’ the deed all his claims and all claims of the firm against Whit-more, or Bellows, to this plaintiff: S. Cooper by his deed, reciting that he was. administrator of William Cooper, assigned to this plaintiff all his claims as administrator against Whit-more, or Bellows ; Cooper and Carrington, by their deed describing themselves as “ assignees in fact of W- C. Hall,” assigned to the plaintiff all claims of said Hall: against Whitmore & Bellows.
    The plaintiff also offered in evidence a certificate, signed by the clerk of a probate court in Connecticut, that Samuel Cooper and Samuel Gill were administrators of William Cooper, and that Gill was dead. This certificate was dated April 22, 1830.
    It appeared that on the 3d October, 1830, before the commencement-of this, suit, the.assignments \vere shown to the defendant, and payment demanded. ,. , , -. > .
    On the part of-'the ’defendant it was objected- — ■
    f 1. That the evidence offered did not prove the' contráete . alleged in the third, and -fourth cóúnts, or any contract at all ' — the-proof showing only an offer, which was not accepted, by the plaintiff, or .'at' least not accepted within t reasonable . time. . . ■ ‘ ' - • y,'
    - 2.' That the évidencé- was. notsufficient, to-sustain the 3d or 4th. counts,-because the bond given to Hall and others by Bellows was not produced, nor,aiiy reason shown why it was ' not produced,
    3. That the: claim. of; S. & L, Pulsifer was. not legally assigned, because the.cíeed was executed by. S. Pulsifer alone-.
    • 4. The assignment -made.-by C.. Churchill was without legal.effect, because • it was not. shown that the other partner \vasdead. • ■ , • - h - -. -, . ; ,- . . '
    , - 5.: That the assignment by Samuel, Cooper, was without legal effect, because there, was no competent .evidence that he was administrator,. - :• ■■ . . ■.
    - 6. That the assignment made by-Cooper &>. Carrington was without legal effect, because it did not.appear that, they were assignees.of W. C. TTall. - . -■ ' ,;. ; - ■ ' ’.
    - 14-verdic.t was taken; by consent for. the plaintiff for . the .whole amount of his claims, subject to the opinipri of the court .upon the foregoing facts ; and the case was transferred to this court . fo,f their decision, ; . - ' f
    
      ¡Smith,'for 'the defendant,
    remarked that no, objection was. taken as, to-the plaintiff’s right of recovery upon the first count, and that .on the second count no evidence-was offered. As to the remaining counts, -which are the third and .fourth, he' contended that the plaintiff had no,cause, of action-;. that these counts, set forth no Valid contractor, should this be determined .otherwise,- that; they were'not supported by the .testimony produced. ' These;counts do not show a contract. but a mere proposition, unaccepted at the time, and made without consideration.
    
      “ An agreement is said to be aggregatio mentium ; when two or more minds are united in a thing done, or to be done, or where a mutual assent is given to do, or not to do a particular actand it ought to be so certain and complete that either party may have an action upon it. Comyn's Dig.. Agreement, A 1.
    Both the contracting parties must assent. In Cook vs. Oxley, 3 Term. Rep. 652, the declaration stated that the defendant had proposed to sell and deliver to the plaintiff goods on certain, terms, if the plaintiff would agree to purchase them on such terms, and would give notice thereof to the defendant before the hour of four o’clock ; and the plaintiff averred that he did give notice before that hour. It was holden, that as the engagement, at the time it was entered into, was all on one side, it was nudum pactum for want of mutuality. 6 Petersdorff’s Abr. 136, and cases cited ; 2 Lev. 23 ; 2 Sound. 850; 3 Mod. 237 : Carthew 38.
    No express contract or agreement can be raised from a mere casual speaking in discourse.
    As if there be a discourse between the father of A, and B, in relation to a marriage between A and the daughter of B; and B, in that discourse, declares and publishes to the father of A, “ that he would give to him, who should marry his daughter with his consent, £100, and after this declaration, A marries the daughter of B, with his consent, yet it was holden that this declaration and publication of B shall raise no promise upon which an action of assumpsit shall be brought; for these general words do not include any promise, and the agreement must be complete upon which an express assumpsit lies.” 1 Roll. Ab. 6 ; Com. Dig. Assumpsit F. 2; Com. Con. 5.
    In this case the defendant made no contract to procure an assignment of the bond. He did not agree at the time to the proposition of the plaintiff, nor until a year and a half afterwards. There was therefore no mutuality of contract.
    The evidence of the assignment, also, is not sufficient, as the bond is not produced. The bond is the best evidence to show the extent of the defendant’s liability. No reason is offered why it is not produced ; the proof being of amere naked assignment, referring to a bond, but not on the back of it.
    Parole evidence of the contents of the bond is inadmissible, until it is shown to be lost.
    The exceptions taken as to defects in the form and completeness of the assignments by the several creditors, are urged and insisted upon. The reasons for the exceptions, and that they are well taken, is apparent upon the face of them.
    
      Bell, for the plaintiff.
    The defendant takes several exceptions to the plaintiff’s right to recover.
    1. That the evidence offered does not prove the contract in the third and fourth counts, or any contract at all, being nothing but a proposition, which was not accepted in a reasonable time.
    The evidence of Anthony W. Morse is that in May, 1828 or 1829, the defendant told the plaintiff that if he would procure a release of the creditors named in the declaration, he would pay him the amount of the claims which those creditors had against the defendant.
    George Wheeler says, that in May, 1828, or 1829, the defendant said there were demands in Connecticut which he was bound to pay, and he would pay the said demands to any person who would pay them, or take an assignment of them — or words to that effect — or discharge the said defendant from said demands ; and addressing Anthony VV. Morse, said, “ If you, or your brother Wareham, will produce the same, I will pay them.”
    There can be no reasonable doubt but this proves, so far as it goes, the contract stated in the third and fourth counts of the plaintiff’s declaration.
    
      The contract stated in the declaration is that the defendant gave his bond to Hall, Churchill and ‘Pulsifef, in .1817, -pay them SO per-cent.-on 'their clairiis against Whitmore, in one year- after -recovery should he had. in favor .of said -Whitmore against Mills Olcott. . :
    i.This ⅛ fully, proved ..b.y.'defendant's adpiissions. .There, is no occasion, therefore, 'to produce the'bond,. ' - ' - - -'-
    . Wheeler, swears that in May,. 1828 of 1829, the defendant stated to the , plaintiff that he.Had:.giveii. such a bond, and that if he would pay them, or take an assignment of the bohd, ;or discharge. the defendant' from . those-creditors, he would pay. the plaintiff the .same. The testimony of An-.fhony -.W, Moise is; to the,satne.point. ,,- , ,
    •' The-proposition is, in -suhstance — '“ If you-will enable yourself- to" give me a- discharge from those creditors, I" will pay.you What I am. bound t-o pay -them.:” arid this is the contract stated in :the declaration, arid maintained in the proof, if. the plaintiff Iras in" other respects'brought-himself .within it.- - ' • . '■ ' ; 1
    ' -But. if it were nothing-hut a proposition, ás contended for Ry the defendant, we: say it was.a proposition unlimited as to time, If'the plain tiff complied with the proposition in a 'retisóntible tirne — that is, any. time before the relations of the parties had changed:as to the subject matter- — the defendant is-bound, . :: •.
    There- was no. time limited within which the -.plaintiff was to -procure the assignment ,; and there . is-no pretence that the circumstances or relations of:the. parties had. changed after the proposition, and ■ before the assignment. The -entire amount of whatever the defendant held as. the property, of Whitmore, is- still left, :by the judgment of this court, in the defendant's hands, to pay this very claim. The defendant bias néithet paid :the creditors, nor agreed to pay theiri, or any other person,, the claims now demanded of him , by-the" plaintiff. * Wliyf then, does the ’defendant say the proposftiori was:not accepted in a reasonable: time ? . Whether it was a reasonable-.time or licit .Roes- not. depend upon the absolute time which has .elapsed, but oirthat, and all the eir-: cumstances' of .'the- case. -If,'then, this .proposition, was made in May, 1828,1 and. the defendant- was .not notified till October, 1830, that tile assignment'was completed, we think it could not be- held unreasonable, unless the defendant’s .situation in regard to the-claims, themselves had changed. But of this there is no pretence whatsoever. '• ' ■
    ■ “If aman promise another,dn consideration that he will ‘ assign him a certain term to pay him £10, this is a good ‘ assumpsit, though the • time of thb'assignment and pay-‘merit he not appointed. For the £ IQ. shall be-páidina ‘ reasonable time after the assignment — which must also he ‘ made, in a reasonable time after the agreement.” . 1 'Com. Con, 4; l'Rail. Ab.'U.- - - '
    There can be no doubt that such is the law j and- there is as little doubt that the court must.determine, On all the circumstances, whafis a reasonable 'time-for the parties to carry their agreement into .effect, .
    ; Taking this as a contract, or proposition, made -in May, "Í828, and notice of the assignment in October., 1830, we-think it cannot be held . unreasonable,'unless- the circumstances of the parties have changed so as to affect the subject matter.- But if,, as the fact was, the contract was -in May, 1829, and the assignment hr April, 1830, there is no pretence that the delay was unreasonable. The defendant’s contract had been made in 1817. - All the obligees in the bond resided in Connecticut — some had died and others had failed. It would have been unreasonable to have exacted an earlier compliance. But the decisive answer is that the defendant gave a proposition unlimited as to time¡ and nothing has been shown or in fact exists to show that he is in any manner injured by delay. He had Whitmore’s money, then, and he has it now. He contracted no new responsibility, and altered no old one. He stands now precisely as he did in May, 1828, only that his right to retain this very money, for this very purpose, has been judicially established since.
    But it is not necessary for the plaintiff to show a contract in this case betwixt the plaintiff and the defendant. The defendant had made his contract with the Connecticut creditors to pay them. This contract was not assignable at law as a matter of right. The mere assignment would create no obligation on the defendant to pay the plaintiff, but the defendant1 s assent to the assignment would.
    The defendant is bound to pay, by the original contract; and when he assents to the assignment he holds the money for the assignee. And an action for money had and received would lie by the assignee. 4 Esp. Rep. 204 ; 2 Com Con.6.
    It is wholly immaterial whether this assent is given before or after the assignment. If the assent is once given, it remains good until revoked or withdrawn. Here the defendant gave his unqualified assent, in 1828, or 1829, that the plaintiff should become the holder of his bonds. The assent was never withdrawn. The defendant is, therefore, bound. The defendant could not even withdraw his assent, once given, after the plaintiff had taken any step occasioning expense or trouble, without an indemnity. We hold, therefore, that the defendant is bound to pay, if the plaintiff has entitled himself to demand the same upon the assignments, as the proof now stands. We shall, therefore, examine the other objections.
    2. The defendant objects that the bond was not produced. The plaintiff’ was not bound to produce the bond. He did not declare upon it. He produced clear and unquestionable evidence of the obligation, from the defendant himself, under oath.
    3. The defendant objects that the claim of S. &. L. Pul-sifer was not legally assigned, because the deed was executed by S. Pulsifer alone.
    The claim in this case was a partnership claim due to S. &. L. Pulsifer, and it is in form assigned by one partner un
      
      der seal. But this was not necessary. The claim against Pulsifer was matter of account, and might be assigned by parole, or any writing not under seal. It was clearly not necessary, to assign the bond, that the assignment should be antler seal. If Sylvester Pulsifer had the right and power after the dissolution to assign this bond and claim, it being part of the copartnership effects, its being under seal will not prevent its having the effect of an assignment.
    It is laid down by Watson, “ that if a partnership is dis- ‘ solved by consent, this does not determine the legal inter- ! est, which continues as before ; so that the property of the ‘ stock of the partner so going out is not divested thereby, ‘but he remains equally entitled as joint owner. And one ‘ partner, even after a dissolution by bankruptcy, may dis- •' pose of the partnership effects without fraud.” Watson on Partnership, 124, 125, 140 : Cowp. Rep. 449.
    We hold that each of the partners, after a dissolution, has the same power to sell and dispose of the copartnership property then on hand as he had before. His interest is the same after a dissolution as before. As joint owner, he may sell and dispose of the partnership effects, and receive payments, &c., as before. He cannot bind the former partners by any new contract, except in certain cases. In this case Sylvester Pulsifer had a perfect right to sell and dispose of the claim against Whitmore. The authority of the partnership remained for the disposition of all the partnership property. His contract of April 23, 1830, purports to assign all interest of the copartnership to the plaintiff; and, though the assignment is not required to be under seal, it is not rendered invalid by being under seal. We, therefore, hold the evidence fully made out in regard to the plaintiff’s right to recover on the claim of S. & L. Pulsifer.
    4. The defendant objects that the assignment of Charles Churchill was without legal effect, because it was not shown that the other partner was dead.
    The surviving partner would clearly have the right to make the assignment. The assignment is duly proved, and contains the allegation that he is surviving partner. If this is true in fact the assignment is sufficient. If it is not true in fact, , the other partner is living, and it is a sufficient assignment of all the copartnership right; for either partner is competent to assign all the interest of the copartnership. Bo that, on either supposition, it is a sufficient assignment of the copartnership interest.
    
      5. The defendant objects that the assignment by said Cooper was without legal effect, because there was no competent evidence that he was administrator.
    By the assignment, Samuel Cooper, as administrator of William Cooper, assigns, the claims of William Cooper against Whitmore, or Bellows. The deed recites that he is administrator. There is also the certificate of the register of probate that Samuel Cooper is administrator of the goods and estate of William Cooper; that he was appointed April 24, 1820,.and is still administrator; and also the certificate of John Aisop, judge of probate, that the clerk’s certificate is in due form. This would seem to vest in Samuel Cooper the legal right to this claim ; and his assignment, if he has the right, seems to be properly made.
    6. The defendant objects that the assignment of Cooper and Carrington is without legal, effect, because it did not appear that they were assignees in fact of W. C. Hall.
    This objection is so far true, that it does not appear in any other way than by the assignment itself that they were assignees. The testimony of Rand to that effect was not taken in due form.
   Upham, J.,

delivered the opinion of the court.

In this case, it is admitted that the plaintiff is entitled to recover the amount of the note declared upon in the firsl count. On the second count, no evidence was offered ; and the only controversy betwixt the parties is, whether the plaintiff is entitled to recover any thing of the defendant under the third - and fourth counts in the declaration. By the yerdiet as taken the. full, .amount claimed under those counts was allowed the plaintiff,, and judgment must be rendered for this sum, unless the objections which have been taken should prevail.

It is necessary, then,.to enquire into the nature of the contract declared upon in the third and fourth counts, and whether the same has been complied with.

The third count alleges that the defendant had bound himself by deed to William. C. Hall, to the firm of 0. & D Churchill, and the-firm of 8. & L. Pulsifer, to pay, them fifty per cent, on all sums due from them to Gordon Whit-more, within one year after a recovery in a suit then about to be instituted in the name of Whitmore vs. Mills Oleott, On this suit judgment was subsequently recovered in favor of said Whitmore, and the sum of fifty per cent, on the demands of Hall and others had. thus become due ; and the, plaintiff alleges that it %vas agreed betwixt him and the defendant, that in consideration of his, procuring an assignment to himself- of the said deed, given by the defendant to the said Hall and others, that the defendant promised to pay him the amount, that he was bound by said deed to pay said Hall and others. . . -

The fourth count recites that a similar contract was made by deed with one William Cooper, and that a similar engagement was entered into, by the defendant to pay the. plain tiff the amount due from him to Cooper, provided he procured an assignment of the said deed to Cooper.

It is objected, on the part :of the defendant, that no contract is. set forth in these counts that it is the statement of a mere proposition, to which no offer of compliance was made by the plaintiff, and no assent given, and for which there was no consideration. .

This was true at the time the proposal was made ; but there are many instances of this -kind, where the- subsequent acts of the party, in compliance with a proposition made, constitute a sufficient assent, so as to make a perfect mutuality of agreement and obligation betwixt the parties, and form an undoubted consideration for a recovery on such a promise.

In the case Sturges and al. vs. Robbins, 7 Mass. R. 301, the declaration alleged that the defendant engaged to the plaintiffs “if they would credit one Elijah Davis a sum not exceeding five hundred dollars, if said Davis did not pay the same in twelve months, that the defendant would pay it.” This was a mere proposition, which the defendant could accept or not, at his option ; but a compliance with the proposal within any reasonable time was holden 'to be obligatory upon the defendant.

In Train vs. Gold, 5 Pick. 384, the agent of a creditor gave his indemnity to ail officer in another state to save him harmless for levying on certain property, and engaged to procure some one to be answerable with him. The defendant, who was the attorney of the creditor, wrote to the officer, referring to the agreement of the agent, and promised that he should at all times be saved harmless. No notice was given by the officer, of any acceptance of the indemnity thus tendered by the attorney ; but the acquiescence of the officer in the offer, without calling on the attorney for any farther security, and his subsequent incurring of expense, relying on said promise, was considered a sufficient acceptance, and the attorney was holden liable.

In that case, the court say it is now well settled, that all executory contracts, whether verbal or written, if not under seal, are void as between the contracting’parties, unless they are made on a good consideration ; but if a contract is deliberately made without fraud, and with a full knowledge of all the facts, the least consideration will be sufficient.

Thus if A demises certain lands to B, rendering rent, and B assigns the same to D, and rent becomes due, which D promises to pay to A if he will show him a deed by which it may appear that rent is due, and A shows it accordingly, the promise is binding; the showing the deed being a sufficient consideration, Sturlyn vs. Albany, Cro. Eliz. 67.

So if A promises B to pay him a certain sum of money if he will call for it at a particular time, and B calls accordingly, the promise is binding — the calling for the money being a sufficient consideration. For any gain to the pro-miser, or loss to the promisee, however trifling, is a sufficient consideration to support an express promise.

Nor is it necessary that the . consideration should exist at the time of making the promise ; for if the person to whom a promise is made should incur any loss, expense or liability in consequence of the promise, and relying upon it, the promise thereupon becomes obligatory. Thus if A promise B' to pay him a sum of money if he will do a particular act, and B does the act, the promise thereupon Recomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time, the obligation of the contract, or promise, is suspended ; for until the performance of the condition of the promise, there is no consideration, and the promise is nudum pactum; but on the performance of the condition by the promisee, it is clothed with a valid consideration, which relates back to the promise, and it then becomes obligatory.

So if a reward be offered for the apprehension of a culprit, or for the doing of any other lawful act, the promise, when made, is nudum pactum; but when any one, relying upon the promised reward, performs the condition, this is a good consideration for the previous promise, and it thereupon becomes binding upon the promiser.

On these principles it was holden that the defendant in that action was liable on his promise, for the reason that the officer subsequently incurred loss and expense in defending his acts, relying on the defendant’s indemnity. See, also, Pillans vs. Mierop, 3 Bur. 1663; 3 Bos. & Pul. 249, note; 1 Com. Con. 17; Metcalf’s Yel. 236; Moies vs. Bird. 11 Mass. 436; Mason vs. Pritchard, 12 East 227; 1 Camp. N. P. Rep. 242; Merle vs. Wells, 2 Campb. 413; Lent & al. vs. Padelford, 10 Mass. 230; Fell on Guarantees, p. 56; Stadt vs. Lill, 9 East 348.

In Stadt vs. Lill, 9 East 348, the court remark that the rule as- to mutuality of a contract,has been more relaxed, than the rule as.to consideration, arid that ho engagement need appear on the part of the person to whom any debt- or engagement is secured, to. do that which is the consideration of the parties’ promise. It is sufficient that. in. point of fáet. he does it, viz. that he furnishes, goods, extends credit,-<fcc., and-upon his so doing the mutuality attaches., ,,

The case of Harris vs. Stevens, which was recently decided in Sullivan county, see ante, 464, is similar in character to the present case. There a proposition was made which was ‘subsequently complied with, and, on acceptance and, compliance with its terms, a beneficial interest in the contract was holden to extend back to the daté of the proposition.: ' ■ -

' In this cáse a proposition was made; during the pendency of suits against the defendant as trustee; in which the defendant claimed to hold a certain amount of funds in his hands, for-the payment, of .debts in Connecticut — that if this plaintiff would procure an assignment of those claims, the,money should be paid him. It does not appear to have been a mere casual conversation, but a proposition in apparent good faith, originating from' facts brought out in suits then pending, and in which this plaintiff at the time had an interest. The extent of this liability had been shown by the-oath of the defendant, and the proposition was clearly and: repeatedly made. No reason can be assigned for the making of it, except as the basis of a contract, and on the ground that the procurement of such an assignment would be a. benefit to the plaintiff, that he thus might liquidate outstanding claims against him for which he held the funds, and which might be forwarded, and enforced against him at any moment.

If such was the offer, a subsequent compliance, within a reasonable: time, would constitute a contract. The case is similar in all respects to those cited,-and is fully sustained by the principles laid down in those cases, which wc have cited, at length, as the basis of their decisions. We hold, therefore, that the exceptions taken as to the validity of the contract cannot avail -• that the proposition was such as might well be subsequently accepted, and that such acceptance and compliance with its terms formed a sufficient consideration and mutuality betwixt the parties in the making of the contract.

Should we hold otherwise, the only effect would be, in this case, to turn the plaintiff round to suits in the name of the original creditors. The plaintiff having the assignments, with notice, it imposes an equitable and moral obligation on the defendant: to pay the money to the plaintiff as assignee. It would be a fraud on the. plaintiff, to .pay the original creditors. Having the assignment merely would not be sufficient to support an implied assumpsit in the plaintiff’s name, but it would be a good consideration for an express promise to the plaintiff upon which an action in his own name might be sustained. The authorities are clear upon this point, and it would seem to be of but little consequence whether such promise be made before, or after the assignment, provided such assignment be obtained in pursuance of such promise, and within a reasonable time. If so, suit in the plaintiff’s name might well be instituted by virtue of the assignment, and promise. . Crocker & ux. vs. Whitney, 10 Mass. 316; Mowry vs. Todd, 12 Mass. 281; Usher vs. D’Wolfe & al. 13 Mass. 290; Jones vs. Witter, do. 304; Skinner vs. Somes, 14 Mass. 107; Coolidge vs. Ruggles, 15 Mass. 387.

But, as it has been remarked,. where a proposition is made which is executory in its character, it undoubtedly should be complied with within a reasonable time, in order to bind the party making itand it-becomes- necessary to determine in this case whether the proposition made was accepted within such time. What is a reasonable time within which an act is to be performed, when a contract is silent upon the subject, is a question of law, and must depend on the situation of the parties and the subject matter of the contract. 1 Com. Con. 3, 4; 1 Roll. Abr. 14 l 50; Tucker vs. Maxwell, 11 Mass. 143; Thompson vs. Ketcham, 8 Johns. 189; Atwood vs. Clark, 2 Green. 249.

In this case, for aught that appears, there has been no change in the relative situation of the parties, so that the defendant is subject to any inconvenience in consequence of the delay in meeting his proposition. The defendant has not paid the debt, nor discharged the bond which was outstanding against him, and he admits, by his own disclosure in another action, which is filed as evidence in this case, that he had and still has, funds of Whitmore in his hands, reserved expressly for the payment of the claims now in suit. The /necessary measures, also, to procure an assignment of these ’ claims, under the circumstances of this case, are such as , would justify a very considerable delay. It is uncertain, t from the testimony, whether this delay was something less than one, or nearly two years. This is a long time, but the nature of the contract is such, it being merely the shifting of payment of an acknowledged debt from one individual to another, and nothing being suggested as to any change in the situation of the parties, whereby the defendant would be , prejudiced; a compliance, also, necessarily requiring much time, and the proposition being made unlimited as to time, when it would seem to have been limited had it been holden essential, induce us to believe that the delay may be regarded as not unreasonable, and that the evidence sustains, in this respect, such an acceptance and compliance with the proposition as to make the contract binding.

Admitting this to be the case, the question remains to be considered, whether it has been duly complied with in the proper procurance of the assignments. It is essential to this defendant, that the strict rules of law to constitute a valid assignment be enforced; for it is apparent that a judgment in this suit would be no bar to any future claim on the part of the original creditors, should the assignment hereafter be proved defective.

Waiving, for the present, the objection that the bond assigned is not produced, we shall consider the objection taken to the assignment of the claim of S. & L. Pulsifer, which is, that the deed was executed by S. Pulsifer alone.

It must be considered as settled, that each partner has the entire control of the personal estate of the partnership, and may adjust, receive payment, and release a debt.

In this case the assignment is under seal, and the doctrine that one partner cannot bind another by deed has been supposed to apply. Harrison vs. Jackson, 7 Term Rep. 207; Clement vs. Brush, 3 Johns. Ca. 180; Thomason vs. Frere, 10 East 418; Gerard vs. Basse & al., 1 Dal. 119. But although one partner cannot, by deed, bring any fresh bur-then upon his co-partner, he may by deed bar him of a right which they possess jointly ; and where there is a promise to several jointly, or there are several joint obligees, or cove-nantees, a release by one binds all. Co. Lit. 232 a; Tooker’s case, 2 Rep. 68; Bacon’s Ab. Title Release; Com. Dig. Title Release; 4 B. Moore 194; Perry vs. Jackson, 4 Term Rep. 516; Pierson vs. Hooker, 3 Johns. 68; Bulkley & al. vs. Dayton & al. 14 Johns. 387; Bruen vs. Marquand, 17 Johns. 58; Hodges vs. Harris, 6 Pick. 360.

The assignment of S. Pulsifer, by deed, purports to convey all his right, and all the right of S. & L. Pulsifer, to any claims against Gordon Whitmore, or Josiah Bellows, by bond or otherwise ; and such an assignment may be legally made, and passes the whole interest of the firm.

Another exception taken is, that the assignment by C. Churchill, reciting that he was a surviving partner of the firm of C. & D. Churchill, was without legal effect, because it was not shown that the other partner was dead, and he thus had a right to act.

But whether the. partnership be dissolved or not, .one partner-may. release-a debt, and he may do. this even where by the dissolution all debts were assigned to the other .partner. King vs. Smith, 4 Car. & Pay. 108; Stead & als. vs. Salt, 3 Bing. 101. A .partner cannot,, after the dissolution of the .partnership, endorse a note payable to the firm so, as to pass the intefestin it. . Wrightson vs. Pullan, 1 Stra. Rep. 375; Moody vs. King, 2 Barn. & Cres. 558; Hackley vs. Patrick, 3 Johns. 538; Sandford vs. Mickles, 4 Johns. 224. But the; reason of this is, that, if he could endorse the note he might bind the firm-as endorsees,, which he cannot do. This objection, does not, exist in the assignment of a bond, and there seems-to be no reason Why one, partner may not assign a bond after 'the partnership is dissolved. It is immaterial in this case, .as to the legal effect -of the assignment, whether the partner is dead, or'still, survives ; it would be good in either case. - : ■ -

.. A farther exception taken is, that the assignment by Samuel Cooper, as administrator of William Cooper, was -improperly admitted, as there was no-'competent evidence of his appointment as administrator.- The only proof offered; was a certificate-from.the register of probate.' But.a certificate off .-a register off probate is not. evidence of .a grant off letters .of administration. If a record of the grant'is kept, a copy of that record is the proper evidence. 1 Stark. Ev. 248; Gorton & al. vs. Dyson, 1 Brod. & Bing. 219; King vs. Barnes, 1 Stark. Rep. 243; Davis vs. Williams, 13 East 232. If no record is kept, the, register is -no certifying -officer. In this case.,.the register not only.certifies that Cooper was administrator, but that Samuel Gill was joint administrator with him, and that Gill is dead. If both administrators, if living, should join in -the assignment, a certificate of the . death of one-of them would not be legal evidence. A certificate in either respect is incompetent evidence.

Another exception is, that' the debt of William C. Hall, and his interest in the bond referred to, is assigned by Cooper and Carrington, who allege themselves, in their deed, to be assignees of said Hall. But their authority as assignees is denied, and the recital in their deed,is no evidence against this.'defendant.f A recital in a deed is nob evidencefagailist any-One who does not' execute the' deed pit is only evidence of the admission of a party. 2 Stark. Ev. 22, 23. The authority of Cooperand.Carrington as- assignees, should be affirmatively shown, which is not done.

. Au exception is. also taken on account of the rion-prodtic- • tion- of the bond alleged to be assigned, which is an-import-an.t consideration in this case. ' " '•

• A bond may be assigned by deed, or .other writing, or without writing, so as to give the assignee a. fight to receive the-debt, -to release it, or to sue in" the-name-of the obligee ; -but in general, the instrument itself should'be delivered to the assignee. 1 Mass. 117, Perkins vs. Parker; 4 Mass. 450, Foster vs. Sinkler & trustee; 13 Mass. 304, Jones vs. Witter; 15 Mass. 481, Dunn vs. Snell & al.; 2 Green. 322, Vose vs. Handy; 11 Johns. 47, Raymond vs. Squire; 12 Johns. 346, Canfield vs. Monger; 17 Johns. 284, Prescott vs. Hull.

. When a demand is- made of the maker- of -anote, the note itself should be produced, otherwise the debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it cancelled when he is called upon to discharge it. 1 N. H. Rep. 80, Tredick vs. Wendell; 7 Mass. 483, Freeman vs. Boynton; 13 Mass. 557, Woodbridge & al. vs. Brigham; 6 Mass. 524, Berkshire Bank vs. Jones; 7 Cranch 275, Morgan vs.. Reintzel; 2 Camp. 211, Pierson vs. Hutchinson; 3 Cowen 303, Rowley vs. Ball; 4 Taun. 602, Davis vs. Todd; 2 Gallis. 351, Peabody vs. Denton.

A contract like this, where a proposition on a certain consideration was made to another to procure the assignment of an instrument, cannot be considered as fulfilled unless, the instrument itself be produced. The condition on which the promise of the defendant was made, as alleged in the declaration, “is an assignment to the plaintiff of the deed." This implies a delivery ; and the evidence of its procurement, prior to a recovery in any suit for the consideration of the assignment, is essential. An assignment of the debt is no assignment of the deed; it would not appear, from such assignment, but the deed had been previously assigned, and was outstanding against the defendant.

The contract of the defendant, may be considered a contract to pay, if the bond is produced and an authority to receive payment is shown, or if it has been duly assigned, and delivered, and its non-production is accounted for by loss from time, accident, or other cause. It is not enough, under this contract, to show a loss of the bond merely; it must be shown to have been lost after delivery to the plaintiff.

As the bond has not been produced, nor its .loss shown subsequently to the assignment, the plaintiff fails in sustaining his claim on his special counts, and for this, as also for the other reasons named, the verdict cannot be sustained, and the case must be set aside, and transferred, unless the parties agree on a judgment for the amount of the note declared on in the first count.

Verdict set aside-  