
    Edward Bonnaffe et al. vs. Erasmus D. Fenner et al.
    Although, as a general rule, one partner cannot sue his copartners at law for a sum of money due on account of the partnership, unless it be the balance of a separate account, or a general balance of accounts; yet where several partners execute a note payable to one partner, even though on account of matters connected with the partnership, it is an acknowledgment of a separation of the sum from the partnership account, and the payee may maintain an action at law on the note.
    In an action of assumpsit, brought by B., as the bearer of a note made payable to M., or bearer, for the use of the Real Estate Banking Company of Hinds County, by F. and others; on proof that the makers of the note and the payee were all members of the company for whose use the note was made : Held, that B. might, notwithstanding, maintain his action on the note.
    In an action of assumpsit, by the bearer of a note made payable to M. or bearer, for the use of the Real Estate Banking Company, it will not be necessary to set out the words stating for whose use the note was made, as they constitute no part of the legal contract.
    Where partners, when sued, seek to establish the existence of the partnership, they must produce the letters of partnership, or give a legal excuse for their non-production, before the partnership can be proved by other evidence.
    In error, from the circuit court of Hinds county; Hon. George Coalter, judge.
    Augustus and Edward Bonnaffe, partners, under the firm of Bonnaffe & Co. brought an action of assumpsit in the court below, upon this note:
    “$3375. Clinton, Mis. December 13, 1838.
    Twelve months after the 13th day of December, 1838, we, or either of us, promise to pay Cowles Mead, or bearer, for the use of the Real Estate Banking Company of Hinds County, at their banking house, in Clinton, three thousand three hundred and seventy-five dollars, without defalcation, for value received.
    E. D. Fenner,
    Jas. M. Wall,
    J. A. McRaven.”
    In the declaration the plaintiffs averred themselves to be the lawful bearers of the note.
    The defendants plead the general issue.
    On the trial the plaintiffs rested their case with the reading of the note ; when the defendants proved, by J. F. Foute, Esq., that the defendants, at the time of the execution of the note, were partners with' the said Cowles Mead, (the payee of the note,) and others, in the said Real Estate Banking Company, for whose use the note was made; the witness testified further, that the association existed under written articles of partnership, signed by the copartners, upon which the plaintiffs objected to the parol proof of the partnership, without the production of the original articles; but the objection was overruled. This was all the testimony in the case.
    Upon which the defendants asked the court to instruct the jury as in case of a nonsuit; whereupon the court instructed the jury that the plaintiffs were not entitled to recover from the defendants in that action. The jury found for the defendants; and the plaintiffs prosecute this writ of error.
    
      Van Winkle and Potter, for plaintiffs in error,
    contended :
    1. That the plaintiffs could recover on the note, although Mead, as a partner in the company, had no legal cause of action on the note, against the defendants. On this point they cited Smith v. Lusher, 5 Cow. 685; Nevins v. Townsend, 6 Conn. R. 5; Blake v. Wheadom, 2 Hayw. N. C. Rep. 109; Bailey on Bills, 116; Morris et al. v. Hillary et al. 7 How. 61; Chitty on Bills; 266; Bailey on Bills, 115; 3 Kent Comm. 89 ; Coll, on Part. 217 and n. '; Guernsey v. Burns, 25 Wend. 412; Gage. v. Kendall, 15 Ibid. 641; Mandeville v. Welch, 5 Wheat. 277; Chitty on Bills, 79; Bailey on Bills, 492 ; 1 Selwyn’s Nisi Prius, 292; Thomas v. Bishop, 2 Stra. 955.
    
      2. That the note was a legal cause of action, in favor of Mead, the trustee; he might have recovered against the defendants, in an action at law on the case. Van Ness v. Forrest, 8 Cranch R. 31; Smith v. Burton, 3 Vermont R. 235 ; Stone v. Brooks, 6 How. 373; Chitty on Bills, 180, 226, 428, 566; Bailey on Bills, 76, 115; ‘1 Selwyn’s Nisi Prius, 292; 3 Kent’s Comm. 89; Commissioners of Sinking Fund v. Walker, 6 How. 187, 188; Chaplin v. Canada, 8 Conn. R. 286; Binney v. Plumpley, 5 Vermont R. 500 ; Bank of the United States v. Devaux, ,5 Cranch, 91; Irvine v.. Lowry, 14 Peters, 300; Banerman v. Radenius, 7 T. R. 663; Wade v. Tinkler, 16 East, 36; Tucker v. Tucker, 4 B. & Aid. 748; Willis on Trustees, 16, 72, and n. e, 73, 83, 86, 87, 100, 127, 182, 201, 495; Lewin on Trustees, 247, 267; Bonnaffe Sp Co. v. Williams, 3 How. S. C. Rep.; Newman v. Montgomery, 5 How. 742; Rae v. Read, 8 Term R. 148 : 1 Scho. & Lef. 67, n. c; Irvine v. Lowry, 14 Peters, 300; Chit. PL 190; Coll, on Part. 165.
    3. The cases in which it has been held that one partner cannot sue his copartner at law, were in actions on particular demands, founded on partnership transactions, and not separated by the acts of the parties from the partnership account: or where the partner sought to recover such unascertained balance as might be found in his favor, on a final adjustment of the general account. Neale v. Turton, 4 Bing. 149; Jackson v. Stopherd, 3 Cromp. & Mees. 361; Coffee v. Brian, 3 Bing. 54; Gibson v.' Moore, 6 N. Hamp. R. 527; Story on Part. 527; n. 1; Coll, on Part. 392; Story on Part. 241; Coll. 91, 504; Story on Part. 240, 366, 367; Wright v. Hvntér, 1 East, 30; Neale v. Turton, 4 Bing. 150; Bmerly v. Cripps, 7 Carr. & Payne, '709, and n.; St'ry on Part. 320, n. 1; Coll, on Part. 148, 152; Smith v. Barron, 2 Term R. 476; Simpson v. Rockham, 7 Bing. 617; Mainwaring v. Newman, 2 Bos. & Pull. 120; Moffat v. Van Millenger, Ibid. 124, n. c; Venning v. Lechie, 13 East, 7; Gale v. Leckie, 2 Stark. 96; Story on Part. 320, n. 1; Coll, on Part. 148; Davis v. Tiernan, 2 How. 804; Jameson v. Franklin, 381.
    
      4. The circuit court also erred in admitting secondary evidence to prove the existence of the partnership, when it was shown that higher evidence existed.
    
      J. F. Foute, for defendants in error,
    insisted,
    1. That parol evidence could be offered to prove a partnership, without the production of, or accounting for, the original articles; and that a contrary doctrine would work great hardship. Coll, on Part. 449, 450, § 8; Ibid, 451, et seq.; Gow on Part. 153, 154, 155, 207, 208, et seq.
    
    2. That the instruction of the court that the plaintiffs could not maintain their action, was correct. Nevan v. Spickerman, 12 Johns. R.; Canston v. Burke, 2 Har. & Gill, 295; Coll, on Part. 143, 144, § 2, et seq.; Ibid. 158, § 5.
    3. That the note, payable on its face, for the use of the Re'al Estate Banking Company, was for their use, into whosoever hands it might come, and established a trust in the hands of the assignee, or transferee, in favor of the company.
    4 In reply, he contended that if Mead, the payee, had no cause of action, his transferee could have none. Morris v. Hillery, 7 How. 61. That Chitty, 226 ; Bailey, 118; 3 Kent’s Comm. 89, applied to trustees who held the mere naked legal title, without beneficial use; that the no.te sued on was not assignable by delivery, but was a mere voucher, to be used in settlement between the parties, as evidence of indebtedness; that the contract was expressly worded so as to exclude the possibility of Mead so assigning the note as to deprive the company of the use and benefit of it; and that when the proceeds of the note were collected, the defendants themselves, as partners, would be entitled to participate in the division of them; that the authorities cited by the plaintiffs applied exclusively to commercial paper under the commercial law, and to implied trusts, unknown to the bona fide holder; but not to a case where the trust is explicitly declared on the face of the paper.
   Mr. Justice Thicker

delivered the opinion of the court.

Plaintiffs instituted their action of assumpsit, in the Hinds county circuit court, as the bearers of a promissory note made by the defendants, payable to Cowles Mead, or bearer, for the use of the Real Estate Banking Company of Hinds county. The defendants plead the general issue, and a verdict was rendered for the defendants. Upon the trial, the defendants offered to prove that the makers of the note, and Mead, the payee, were members and partners in the said Real Estate Banking Company of Hinds county, and, while it was in proof that said company had been constituted a copartnership, by written articles, the court below allowed oral evidence that the individuals aforesaid were partners in said company, at the time the note in suit was made. That court, also, at the request of the defendants charged the jury that, under the circumstances of the case, the plaintiffs could not, in law, recover in the action. Upon these two points, the case is brought into this court.

It is laid down as a general rule, that where one partner has a claim upon his copartner, for a sum of money due on account of the partnership, but not constituting the balance of a separate account, or a general balance of all accounts, he cannot recover by action at law. Collyer on Part. 158. This rule arises from the fact that, at law, no account can be taken between two partners. But this rule has exceptions, and the circumstances may be such that one partner may recover at law from his co-partner, although the matter creating the indebtedness may be connected with the partnership. A prominent exception takes the place of the rule when the sum sought to be recovered is separated from the partnership account. Ibid. 148. The making of a promissory note by several partners, in favor of another, is an acknowledgment of a separation of the sum from the partnership account. Ibid. 148. Smith v. Lusher, 5 Cowen, 688. The insertion in the note, in this instance, of the words “ for the use of the Real Estate Banking Company,” constitutes no part of the legal contract, and need not' necessarily have been set out in the action. The legal title to the note was originally in Mead, and the note being assignable by delivery f the bearer could institute an action in his own name. Chitty on Bills, 226.

The existence of a copartnership is undoubtedly best established by a production of the letters constituting it, when such exist. It may, however, be otherwise proved. Yet when par-ties, who are themselves partners, seek to establish the existence of the copartnership, they should be required to bring forward the letters, and not allowed to prove it aliunde, without first showing a legal excuse for the non-production of the letters.

Judgment reversed, and new trial awarded.  