
    Pateshall vers. Apthorp & Wheelwright.
    In an Action or Insimul Computassent count acknowledged by one Partner against the Company, it is competent for the other to show that the Transaction was not in Partnership.
    
      ACTION upon an Insimul Computassent. It appeared that Wheelwright had made the Settlement, as joint Partner with Apthorp, and, on the Account so stated, the Company were indebted to the Plaintiff in a certain Sum, and that Wheelwright had given his Angle Note to balance the Company’s Debt. The main Question was, whether this discharged the Company.
    
    1765.
    The Acceptance of the Note of one Partner for a Company Debt, and balancing the Company Account therewith, is no Discharge of the Company. Lynde, J., dissentiente.
    
    An incidental Question was debated, whether Apthorp should be admitted to give Evidence, that, in this particular Transaction, there was no Privity between him and Wheelwright.
    
      Mr. Auchmuty.
    
    One Partner can never be admitted to prove his Ignorance of his Partner’s Transactions; for this would be to render all Transactions in Trade with Partners precarious and uncertain, and is directly against all the Rules of Law.
    
      Mr. Fitch.
    
    The Insimul Computassent is signed only by Wheelwright, and not by Apthorp, and the fole Question is, if we may not prove Apthorp had Nothing to do with it.
    
      Ch. Just.
    
    Is there not a previous Question, whether it is in the Power of one Partner, thus to charge another ?
    
      Mr. Fitch.
    
    We have an Authority to that Point. 1 Salk. 126, Pinkney vs. Hall. It is not in every Case that one Partner shall be bound down by the other’s Act, so as not to shew he had no Concern in a certain Affair.
    
      
      Mr. Gridley.
    
    The Exception is this — that it is to no Purpose to shew we had Nothing to do in this Matter, because Wheelwright has said, we had. Can it be imagined, that one Person has a Power by his Notes, his Bills, his Bonds, at his Caprice to charge his Partner? If this is Law, an End of Partnerships. The Authority we have produced is in Point. You shall not charge ad Libitum, but you may charge in the Affairs of the Partnership, and no further. Leap this Boundary—no End—no feeing to the End of the infinite Mischiefs which will flow in upon us. Shall one Partner’s barely ordering certain Affairs into the Books, charge the other, and eftop him from Proof of his having no Concern? It can never be.
    
      Mr. Auchmuty.
    
    Their Authority is not in Point, for it is founded upon the Custom of England.
    
      Mr. Gridley.
    
    No: the Common Law.
    
      Mr. Auchmuty.
    
    I take it to be only a particular Custom; but if on the Common Law, let us fee if the Inconveniences which will flow from their Doctrine, will not exceed any which may happen on admitting our Supposition. If it is once known that a Man may thus slip his Neck out of the Collar, who will have Anything to do with Partners? But there is an Authority right under theirs, clearly with us.
    
      Mr. Gridley.
    
    There the Transaction was in Partnership.
    
      Mr. Auchmuty.
    
    To extend their Authority as far as is contended, would be inconvenient with a Witness. Who, if there must be an Inconvenience, is to suffer? — One who relies on the Faith and Credit of the Copartners, or the Partners themselves who are thus folemnly united? Shall Apthorp be allowed to prove himself clear, when his Partner has declared, under his Hand, that he is jointly concerned?
    
      Ch. Just.
    Suppose my Partner had charged me, by his Note of Hand— shall not I be admitted to prove that I had Nothing to do in that particular Transaction?
    The Evidence was unanimously admitted, and the Chief Justice said, that Want of Clearness, or Ambiguity, ought not to be an Objection to Evidence, but the Jury should be left to judge.
    On the main Question, it was insisted by Mr. Auchmuty, that the Note given by Wheelwright was no Payment, and consequently no Discharge of the Company. Words and Paper alone can never discharge a Debt without any Payment. Hob. 68, Lovelace & ux. vs. Cocket. Mod. Cases in Law and Equity, () 290, Springet v s. Chadwick. 1 Salk. 124, Clark vs. Mundal. A Contract remains in full Force till discharged, and blank Paper will not discharge it; they have given us no more. Nothing but a Satisfaction can discharge; not even a Bond, by different Parties (says Lord Hobart), shall discharge without Payment. And shall this Note discharge without Payment? Never! and why? "It is no Satisfaction actual and present, as it ought to be.” Hob. ub. supra
      
    
    
      Mr. Gridley & Mr. Fitch
    
    offered some Evidence to induce the Jury to think this was not a Partnership Affair, and therefore Wheelwright could not make Apthorp chargeable. Upon the main Point, Mr. Gridley said:
    
      Mr. Gridley.
    
    The grand Question is, whether Apthorp Hands indebted to Pateshall, according to the Settlement here produced. This is an Insimul Computassent, a particular Mode of Action. You must prove as you declare, or you must fail, as in the Case of a Bond.
    This is an Agreement of the Parties, in which Pateshall has balanced the Account. The Agreement of the Parties must be taken altogether. — No dividing—No, days the Law-no Partition of what a Man says. What does Wheelwright here say? Why, that he and Apthorp owed.—Yes: but in the same Breath he says that he has paid Pateshall. There it ends. A Settlement is one undivided, indissoluble Thing; and the Law says, if you ground yourself upon it, you shall take it altogether, or discard it altogether. — But let us see the Law.
    Their first Authority is of a Bond; nothing to the Purpose. But one Note may discharge another; as where the Note is of later Date. The Custom of the Place must always be regarded; and it has ever been here held, however it may have been in England, that one Note would discharge another. It is every Day’s constant Practice, to settle Accounts and give Notes in Discharge. And I appeal to you, Gentlemen of the Country, what Confusion would overwhelm us, if all Settlements should be thus wiped away, and made of no Value. What is Law? What is the whole Common Law? It is the General Uiage. No Common Law found written, but handed down; and there is a Customary Law; and you, Gentlemen, know what has been the uninterrupted, unvarying Custom of this Country.
    The Settlement is what it is; and you cannot vary from it; if you do, you make it what it is not. The Concession on one Side is, that Apthorp and Wheelwright are indebted; but the Concession on the other Side is, that it is paid by Wheelwright’s Note. One Note may balance another, and surely then it may balance an Account. 6 Mod. 36.
    The Sum of what is said is, that ’tis a Settlement. You must fettle it as it is settled, or ’tis your Settlement— not ours. ’Tis like a Law, or a Will — you cannot alter or change it. You must take it as you find it. ’Tis as much a Concession in the Plaintiff, that the Note balanced the Account, as it was in Wheelwright, that the Balance was owing from the Company. Wheelwright said, there was a Debt due. Pateshall said, Wheelwright had paid it.
    
      Oliver, ’Justice.
    There are two Points. As to the first, it is pretty plain from the Evidence that Wheelwright and Apthorp were in Partnership. The only Question then is, if this Note was a Payment of the Company’s Debt. I can’t but think, as the Law stands, the Note was no Discharge of the Company.
    
      Justice Custhing.
    
    I agree with my Brother Oliver in the first Point, but as to the chief Point, the Authorities produced don’t seem to come up to the present Question. Equity seems in Favour of the Plaintiff; and I don’t know that the Law is against him.
    
      Justice Lynde.
    
    There is Evidence under Wheelwright’s own Hand, that this Matter was in Company; but there is a greater Difficulty on the other Point. The Plaintiff acknowledges, by relying on this Settlement, that he received the Note, in full Satisfaction. A new Agreement is entered into; for he discharges the Company and takes Wheelwright for his Security.
    One can’t very well account for the Cale in Hobart. It is quite extraordinary, that a Man should give a new Bond, and not take up the old. When Securities are changed, it seems to me that the old must be discharged.
    
      
       Qu. If these Authorities would not have been pertinent: 12 Mod. 537, 86, 406. Cunningham on Bills of Exch. 93, 96, 150, 151, 152. Vid. Noy, 140, Oldfield's Case; 5 Mod. 314; 1 Lutw. 466; 5 Co. 117; 4 Mod. 88; 2 Bac. Abr. 24; Str. 426; Burrow’s Rep. 1 v. p. 9.
    
    
      
      (1) 8 Mod.
    
    
      
       Qu. If 2 L’d Raym’d, 928, &c., would not have been pertinent.
    
   Ch. Justice.

The first Question I take to be, Partnership, or not. If one Partner receives Money, and carries it to the Company Account, clear Evidence that the Money was received in Partnership.

The second Question is, whether the Note given by Wheelwright discharged the Company. Had the Note been from Wheelwright and Apthorp, I should have had more Doubt. The Plaintiff here gives Credit for Note of Wheelwright’s. Now, whether the Contract with the Company can be supposed to continue, after Wheelwright had taken the Company’s Debt upon himself, and Pateshall had received the Note as a Balance of the Company Account, I doubt.

The Jury found for the Plaintiff.

Afterwards, a Writ of Review being brought, the Cause was again argued, before the Chief Justice, Justice Lynde and Justice Russell.

Justice Russell

was full with the original Plaintiff

Lynde, Justice

continued strongly of his former Opinion;, and was strenuously in Favour of the Plaintiff in Review.

The Doubts of the Chief Justice were, on this Tryal, removed, and he said that, from the Authorities, it was very clear, that the Note was no Discharge of the Company. ()

The Jury was of the same Opinion with the Jury upon the last Tryal.

Judgment being entered, Mr. Gridley moved for an Appeal Home, which, not being opposed, was granted. 
      
       Vid. Cun. L. Dict’y Tit. Acceptance.
      
     
      
      
        Qu. if thefe Authorities would not have been pertinent to the Point in Question: 3 Cro. 85, 86. 2 Cro. 650. 1 Mod. Rep. 221, 225. 3 Lev. 55. 1 Brown. 47.
     
      
      (2) The opposite doctrine has long been ectabliched, both in this country and England. See Story on Partn. § 155 and note. Arnold v. Camp, 12 Johns, 409. French v. Price, 24 Pick. 23.
     