
    Alonzo Stephens v. Sumner S. Thompson and George Franklin.
    
      Amendment. Partners. Prima facie evidence. Burden of proof. Depositions.
    
    A declaration upon a promissory note may be amended by adding a count upon an account stated. No new cause of action is thereby introduced if a recovery is claimed only upon the original consideration of the note.
    If the creditor of a partnership takes the note or bill of exchange of one member .only of the firm, in satisfaction of his claim, he thereby discharges the others.
    The receipt of a note, “ to balance account,” is, prima facie, a discharge of the account; and imposes the burden of proof upon the opposite party to show it otherwise.
    A party is entitled to a reasonable time to attend, by himself and his counsel, the taking of a deposition; and cannot be required to attend to it during term time.
    Assumpsit to recover the amount claimed to be due to the plaintiff from the defendants, as partners, and for which amount the plaintiff had, on the 16th of November, 1850, taken the note of the defendant Franklin alone. The defendant Thompson plead the general issue, the defendant Franklin not appearing, or making any defense. The declaration, as originally drawn, counted specially upon the note. Upon a trial at the November Term, 1854, the county court, — Peck, J., presiding, — decided that, upon the testimony introduced which consisted of the note and evidence of its consideration, the plaintiff could not recover against Thompson, upon his declaration, as it then was, but allowed the plaintiff to file a new count, counting upon an account stated. To the decision of the court allowing said amendment, the defendant Thompson excepted.
    Upon a trial by jury at the November Term, 1855, — Peck, J., presiding, — the plaintiff read in evidence a promissory note for $74.95, dated November 16th, 1850, payable to the plaintiff, and signed by the defendant Franklin, accompanied with testimony tending to prove that the note was given for the amount due to the plaintiff upon an account which accrued, wholly or in part, in his favor against both defendants as partners. The plaintiff testified that, in the summer of 1850, Franklin told him to present his bill and he would settle it; and that afterwards, at the date of the note, he and Franklin looked over the account and they agreed on the balance at $74.95; that Franklin, after they had so agreed, wrote the note and signed it, and wrote a l-eceipt, and presented him the note, and asked him to sign the receipt; that he told Franklin he would take the amount they had agreed on, but wanted his pay; that lie did not like that note; and that Franklin said it would make no difference, and would be just as well, he would have his pay in a few days, or words to that effect; that he signed the receipt and took the note ; the receipt being as follows, “ received of George Franklin his note to balance account up to this date.”
    Thompson offered in evidence the deposition of one David Greeley, to the admission of which the plaintiff objected. It appeared that it was taken during the term, on Saturday evening, at about five o’clock, the trial being on Monday after; and was taken after notice by the justice, (who took it,) to the plaintiff to attend at the taking, which notice was given verbally at 4-J- o’clock the same evening. The plaintiff attended at the taking, but had not sufficient or reasonable notice to ¡procure the attendance of his counsel, and he objected to its being taken on that account. The court excluded the deposition, and to their excluding it Thompson excepted.
    Thompson requested the court to instruct the jury, that if the note was taken by the plaintiff in payment of the balance found at the time of giving it, the plaintiff was not entitled to recover against Thompson ; that the receipt was prima facie evidence that the note was so taken in payment, and the burden of proof was upon the plaintiff to show that it was not so taken. The court declined so to charge; but did charge that the taking of the note, and giving the receipt; were so ma,ny circumstances to be weighed by the jury, in connection with the rest of the evidence, in determining whether the note was to be taken in payment or not; that if they should, from all the evidence, find that it was the understandiiig of the parties that tlie execution and delivery of the note and receipt, should be in payment, satisfaction or discharge of the account, or that Stevens should look to Franklin alone for payment, the plaintiff was not entitled to recover against Thompson. To the refusal of the court to charge as requested, and the charge on this point, Thompson excepted.
    Verdict for the plaintiff.
    
      Peck § Harvey and TJndemvood fy Hard for the defendant Thompson.
    The only claim set forth in the original declaration, not only on its face appeared to be, but, in fact,.was against Franklin alone. It was therefore error to permit the filing of a count upon a claim against Thompson and Franklin, because the new count was for a different cause of action.
    The receipt of the note “ to balance account,” was prima facie evidence that the note was accepted in payment and discharge of the account. Hutchins v. Olcutt, 4 Vt. 549 ; 1 hatcher v. Hinsmore, 5 Mass. 302; Chapman v. Durant, 10 Mass. 47; Follett v. Steele, 16 Vt. 30 : Torrey v. Baxter, 13 Vt. 452.
    The deposition of Greeley was improperly rejected. If the party in fact attends, the question of the reasonableness of the notice is thereby settled. The statute only requiring that the notice “ shall be given or served so that the party may have a reasonable time to appear and be present.” Acts of 1854, p. 4.
    
      L. B. Fnglesby for the plaintiff.
    Whether a note was given and received in payment of a subsisting claim, is a question of fact which, in this case, has been found in the plaintiff’s favor. FoMett et al v. Steele, 16 Vt. 30, and cases cited. Way dell et al. v. Law, 5 Hill 448.
    The plaintiff was only present at the taking of Greeley’s deposition under protest, and is not thereby deprived of any of his legal rights respecting it.
   The opinion of the court was delivered by

Bennet, J.

The amendment of the declaration was properly allowed by the county court.

The amendment allowed was the insertion of a count upon an account stated, and a note of hand is evidence to support such a coupt; and if the party, in his prqof, is confined to the original consideration, there can he no objection. This was not introducing any new cause of action.

We think the law is too well settled in this state to admit of debate that if a party agrees to take, and does take a separate negotiable note or bill of exchange of one member of a partnership firm in satisfaction of their joint debt, it is a discharge of the other partners, and this'is according to the English cases. See Thompson v. Percival, 5 Barn. & Adol. 933, and cases there cited; and such seemed to be the opinion of .the court below, although it must be admitted, that the case cited by counsel from the 5th Hill, is opposed to this view. The question then before us is, did Thompson make out a prima facie case that Franklin’s note was taken and received in satisfaction of the partnership account. The fact that he received the note to balance accounts is, prima facie, in discharge of the account.

This is the doctrine of the Massachussetts court, and we have followed the Massachusetts cases. See 4 Yt. 549, and 13 Yt. 452.

The jury should have been told that the taking of the note and giving the receipt, in the manner detailed in the bill of exceptions, made a prima fable case for the defendant Thompson, and, unless rebutted, their verdict should have been for him, and there was error in the court submitting to the jury so many circumstances, to be weighed by them, in connection with other circumstances. This was not giving the facts their legal effect.

The deposition of Greeley was properly excluded. It is well settled, as a rule of practice in the county courts, that a party cannot be required to attend the taking of a deposition in term time. The party must have reasonable time to attend the taking of a deposition, by himself and counsel, which was not given in this case.

Judgment reversed and case remanded.  