
    COLLINS vs. TITUSVILLE BANK.
    Notice of protest to one partner, binds all.
    Error to Common Pleas of Crawford County. No. 165 October Term, 1873.
    This was an action of assumpsit on a promissory note endorsed by one member of a firm without the knowledge or consent of the others. The affidavit of defense alleged this fact and further that the firm had no interest in the note, and had received no consideration, and had not endorsed it in the usual course of business. Two of the partners swear they received no notice of protest, but the third failed to deny receipt of notice. The Court entered judgment tor want of a sufficient affidavit of defense. Defendants then took out a writ of error, and in their behalf it-was argued by Messrs. Tyler, McCoy and Douglass that the firm was not liable on the endorsement of one member different from their usual practice and without any authority ; Tanner vs. Hall and Easton, 1 Barr, 417; Dundass vs. Gallagher, 4 Barr, 205; McKinney vs. Brights, 4 H., 399. One partner is the general agent of the firm only within the scope of the business of the partnership; Loudon Saving Society vs. Bank, 12 Casey, 498 ; Winship vs. U. S. Bank, 5 Peters, 561. One partner cannot bind the firm outside of its legitimate business; Thompson vs. Franks, 1 Wright, 327; McQuewans vs. Hamlin, 11 Casey 517; Ganswort vs. Williams, 14 Wendell, 134. The firm was entitled to have notice of protest; Tyler vs. Young, 6 Casey, 143 ; Struthers vs. Blake, 6 Casey, 139; Groth vs. Gyger, 7 Casey, 271; Juniata Bank vs. Hale, 16 S. & R., 157.
    
      M. C. Beebe and R. Sherman, Esqrs., contra.
    
    The affidavits of defence did not make out a clear defence. It must be stated clearly, not left to inference. It does not aver that the bank is not a holder for value; Stitt vs. Garrett, 3 Wh., 281; Brown vs. Street, 6 W. & S., 221; Hutchinson vs. Boggs, 4 Casey, 296; Black vs. Halstead, 3 Wright, 64.
    The authority to bind the firm exists when the other party has no notice that the party is acting in fraud of che rights thereof; Story on Partnership, Section 110; Swan vs. Steele, 7 East, 210; Byles on Bills, 127.
   The Supreme Court affirmed the judgment of the Court below on November 2, 1874, in the following opinion :

Per Curiam.

The affidavits neither singly nor as a whole make out a sufficient defence.

It is not alleged that Collins Brothers are accommodation indorsers. One of the defendants in his affidavit fails to deny notice of the protest, notice to one partner being good as to all, and it is not averred that the bank did not take the note in the usual course of business and without consideration.

We discover no error in the record and the

Judgment is affirmed.  