
    *Niday v. Harvey & Co. & als.
    July Term, 1852,
    Lewisburg.
    (Absent Allen and Samuels, Js.)
    1. Res Judicata — Claim Hade in Answer Having No Connection with Relief Sought — Does Not Conclude the Question When Set Up in Cross Bill. — A claim is made in the defendant’s answer, but has no connection with the relief sought in the bill, and is not necessary to be decided in deciding upon the case so made in the bill. Though the court in its decree expresses an opinion in favor of the defendant, this decree does not conclude the question when it is afterwards set up by the defendant by a cross bill in the cause.
    2. Partnerships — Bond Given for Simple Debt by One Partner after Dissolution — Release of Other Partner. - Whether a bond and deed of trust to secure it, given by a partner after the dissolution of the partnership, for a simple contract debt of the partnership, releases the other partner in equity, depends upon the intention of the parties in giving and taking them; and this intention may be ascertained from the attendant circnmstances.
    3. Depositions — Failure of Justice of Peace to Forward to Clerk — Effect.—A justice of the peace having failed to forward a deposition taken by him to the clerk of the court in which the cause is pending, and the canse having been heard and decided without it, is no ground for a bill of review.
    David Niday, in November 1835, exhibited his bill in the Circuit Superior court of law and chancery for the county of Botetourt, against John M. Harvey & Co., George W. Wilson, trustee, and others, praying an injunction to the sale of real and personal property which had been conveyed by John Wood, one of the defendants, to Wilson in trust to secure a debt due from him to Harvey & Co., and which property was then advertised by the trustee for sale. An injunction was granted; but Harvey & Co. and their trustee disregarding it, made sale of the property. Niday then filed a supplemental bill to have said sale set aside. The pleadings and proofs make the following case:
    *Tn the fall of 1833 John Wood purchased a tract of land from James Wiley, paid part of the purchase money and took his bond for the title. Upon this tract of land he afterwards erected a furnace. Subsequently Niday entered into partnership with him upon the following terms: To advance 700 dollars and pay one-half the expense of conducting the business, in consideration whereof he was to have half the property and to receive one-half the profits.
    The partnership was dissolved in August 1834, upon the following terms: Wood was to take all the partnership property and pay all the debts, and refund to Niday the advances which had been made by him, amounting to 1091 dollars 46 cents. To-secure the performance of these conditions on his part, he assigned to Niday the title bond of James Wiley, and executed a deed conveying to Andrew Taylor in trust certain personal property for the purposes, aforesaid.
    On the 4th day of October 1834, subsequent to the transactions just mentioned, Wood conveyed his lands and a quantity of personal property to Wilson, in trust to secure a debt of 2485 dollars 5 cents due from him to Harvey & Co., also an account which Wood was to have with them for goods, wares and merchandise which they agreed to furnish him for twelve months then to come. And upon his failure to pay the said bond with interest from the date of the deed within twelve months, and all that may be due them upon the running-accounts at the expiration of that period, the trustee is authorized to sell. This deed embraces the personal propertj’ which had been conveyed as aforesaid to Andrew Taylor, and the tract of land, the title bond for which had been previously assigned to Niday; and it was to enjoin the sale which had been advertised under this deed that he applied for and obtained an injunction, as before mentioned.
    *The bill sets forth several grounds upon which he prayed the injunction. It will only be necessary to mention the following:
    First. That there was a large balance of the purchase money for the land which had been advertised to be sold, due the vendor James Wiley, the. amount of which had not been precisely ascertained, and that it was important that the amount should be ascertained before the land was exposed to sale.
    Secondly. That a claim had been set up by one Caleb Hank to a part of the land, adversely to Wood, which had thrown a cloud over the title, which it was necessary should be removed before the sale was made: And the said Wiley and Hank were made parties defendants. The bill was filed also for another purpose, to wit:
    To assert Niday’s right to a preference over Harvey & Co. to satisfaction out of the property. He alleges that he had paid debts of the firm which Wood, by the terms of the dissolution, was bound to pay; and that there were other debts of the firm which were unsatisfied for which he was responsible, though Wood had taken upon himself the obligation of paying them, in addition to the debt of 1091 dollars 46 cents, which was due from Wood to him; and he insists upon his right to a preference over Harvey & Co. to the satisfaction of his individual debt, as well as the debts of the firm, out of the said property. James Wiley and Caleb Hank both answered, and Harvey & Co. filed their answers, both.to the original and supplemental bills. James Wiley also by leave of the court filed a cross bill, alleging that there was a balance of the purchase money due him for the land, asserting the vendor’s lien, and praying that it might be enforced.
    J. M. Harvey & Co. in their answer state that at the sale of the land Harvey agreed with Wiley to pay his debt, and therefore that claim did not injure the sale; *and as to any claim of Hank it had not been heard of. They contest the right claimed by Niday to a preference over them to satisfaction out of the property ; and they allege that the debt for which Wood gave his individual bond was the partnership debt of Wood & Niday; and they insist -that the taking the individual bond of one of the partners for a partnership debt does not in equity release the other.
    At the April term 1839 the court pronounced an interlocutory decree in these causes. That decree sets aside the sale made bj" the trustee Wilson as irregular after notice of the awarding of the injunction to Harvey & Co. and himself, and whilst a cloud hung over the title. It sustains the bill as to the propriety and necessity for an injunction, and sustaining the claim of James Wiley, directs that the land shall be sold by a commissioner of the court to satisfy the balance due Wiley of the purchase money, the amount of which is ascertained by the decree. But the decree sustains the defendants Harvey & Co. in the allegation that the debt for which they had taken the individual bond of Wood, was the partnership debt of Wood & Niday.
    The commissioner appointed for the purpose by said decree, made sale of the land, and from his report it appears that the land sold for an inconsiderable amount over and above paying the sum decreed to Wiley, after deducting expenses of sale.
    At the April term 1842 of said court Harvey & Co. by leave of the court, filed a cross bill against Niday in this cause, by which they demand of him the amount of the said bond of John Wood, subject to a deduction for the amount made by the sale of the personal property by the trustee Wilson. They insist upon the liability of Niday for this debt, because, as they allege, he and John Wood were partners, and that *their claim above mentioned is a debt which was contracted with them by Wood & Niday as partners.
    The answer of Niday denies that any partnership existed between him and Wood prior to the spring of 1834, or subsequent to 26th of August of the, same year, when the partnership was dissolved; or that he and Wood, as partners, had anj’ dealings with the plaintiffs prior to the former period or subsequent to the latter. The answer admits that a portion of the plaintiff’s claim described therein was a debt which had been contracted with them by Wood & Niday as partners, and denies that the remainder of it was contracted by them as partners, but alleges that it was the individual debt of Wood.
    Th answer further alleges that in order to obtain the said deed from Wood, Harvey & Co. had released Niday from all liability for said debt, and that Wood positively refused to give the deed until Harvey & Co. agreed to release Niday and surrender up the notes which he held on Wood & Niday to be canceled. He further insists upon the statute of limitations as furnishing a complete bar to the plaintiff’s demand against him.
    Upon these issues on the cross bill, and upon the proceedings had upon the original and supplemental bills as before mentioned, the causes came on for final hearing on the 6th of October 1843, before the Circuit Superior court of law and chancery for the county of Bedford, to which it had been transferred. The court was of opinion that the debt for which Wood executed his said bond to Harvey & Co. was contracted by the firm of Wood & Niday, and that the settlement of the account and execution by Wood of his separate bond and. deed of trust, though it extinguished his partner’s liability at law, had not the effect to discharge his liability in equity; and that the remedy of Harvej' & Co. *against Niday for the said debt, was not barred by the statute of limitations; and decreed that Wood & Niday should pay to the said John M. Harvey & Co. the sum of 2485 dollars 5 cents, with interest thereon from the 4th day of October 1834 till paid, and the costs, subject to a credit for 147 dollars 62 cents, the value of the personal property sold by Wilson, trustee, as of the 30th November 1835; also 95 dollars as of the same date, the amount recovered by said Wilson as trustee; also for 70 dollars 86 cents, as of the date of the decree, being the balance of the proceeds of the sale of the land, after deducting' cost and expenses. And the court further decreed that the original and amended bills be dismissed, as to John M. Harvey & Co. and G. W. Wilson, and that the plaintiff pay to them their costs expended in the defence of said suit.
    The facts bearing upon the questions in these causes are sufficiently stated by Judge Daniel in his opinion, and need not be repeated.
    After the foregoing decree was made, viz : in January 1844, Niday applied to the judge of the Circuit court of Bedford county in vacation for a review of the decree and proceedings in the foregoing suits, and for an injunction to the execution of the decree of October 1843. The bill charged that previous to that decree he had, in March 1843, taken the deposition of William W. Campbell, to be read as evidence in said causes; that the justice who took it was directed to send it to the clerk of the Circuit court -of Bedford, and the plaintiff supposed it was sent accordingly, but that in fact the justice had not sent it, and that the cause had been heard and decided in the absence of said deposition. That the deposition (which was exhibited with the bill) showed that 466 dollars 89 cents of the debt for which Harvey & Co. had obtained a decree against the complainant, was the individual debt of John Wood.
    *The bill also charged errors in law on the face of the decree, first, because the statute of limitations, which had been relied on by the complainant in his answer to the cross bill, was a bar to the claim of Harvey & Co. ; second, because Harvey & ■Co. had not been charged with the full value of the personal property sold by the trustee Wilson; the proofs showing, as complainant contended, that it was sold at half its value; and third, because the court had given a decree in the first suit against the complainant for costs, and in not giving him a decree in that case for costs against Harvey & Co.
    The judge gave leave to file the bill, and awarded the injunction as prayed for.
    John M. Harvey answered the bill, contesting the complainant’s right to have the decree reviewed on the grounds stated in the bill. And .thereupon, the cause came on to be heard on the 3d of October 1844, when the court was of opinion that under the circumstances the plaintiff had reason to believe that the deposition of Campbell had been filed before the decree of October 1843 was made, and that said deposition proved conclusively that 473 dollars 74 cents, a part •of the sum for which the said decree was rendered, was the individual debt of Wood; and without deciding any other question in the causes, the decree of the 6th of October 1843 was set aside, and the causes redocketed ; and a commissioner was directed to enquire and report how much of the bond of the 4th of October 1834, executed by Wood to Harvey & Co., was the individual debt of Wood, and how much of it was the debt of Wood & Niday. There were other enquiries directed, not necessary to be stated.
    The commissioner reported that individual debts of Wood to the amount of 1227 dollars 6 cents were included in said bond. And then the cause came on again to be heard on the 16th of September 1847, *when the court held that the decree of the 6th of October 1843 might be reviewed for the purpose of considering the deposition of Campbell, and extending to the plaintiff such relief as that deposition might show him entitled to; but that the decree should not be reviewed for any other purpose. And the plaintiff was credited on that decree for the sum of 473 dollars 74 cents, as of the 1st of July 1834; arid the decree of October the 3d, 1844, and all proceedings under that decree, were set aside. Brom the decrees of October 6th, 1843, in the original and cross cause, and the decree of September 16th, 1847, upon the bill of review, Nidayapplied to this court for an appeal, which was allowed.
    John T. and F. T. Anderson, for the appellant.
    Boyd, for the appellees.
    
      
       Judge Allen had made a decree in the cause in the court below
    
    
      
      Res Judicata. — Upon this question the principal case is cited and followed in Tarter v. Wilson, 95 Va. 24. 27 S. E. Rep. 818. See also, Fishburne v. Ferguson, 85 Va. 321, 7 S. E. Rep. 361; Blackwell v. Bragg, 78 Va. 529.
    
    
      
      Partnerships — Bond Given for Simple Debt by One Partner after Dissolution — Effect as to the Partner. — In the principal case it is held that, whether a bond given by one partner after dissolution, for a simple contract debt of the partnership, releases the other partner in equity, depends upon the intention of the parties. See, citing the principal case, Karn v. Blackford, 1 Va. Dec. 845; McArthur v. Chase, 13 Gratt. 704; Meade v. Grigsby, 26 Gratt. 616, and note, , foot-note to Steptoe v. Pollard, 30 Gratt. 689. i
    
   DANIEL, J.

I think that the judge of the Circuit court of Botetourt did not err in his opinion and decree of April 1839, in holding, “that as by the terms of dissolution Wood was to pay the debts of the firm, and for that purpose took all the property, real and personal, it was not competent for the retiring partner (Niday) to acquire an incumbrance on any part thereof, to the prejudice of the rights of a creditor of the firm.” The truth of the proposition of law involved in so much of the opinion is obvious, and was not seriously controverted in the arguments of the appellant’s counsel here. It is, I think, also evident, that regarding the testimony in the view most favorable to the cause of the appellant, and estimating the personal property at the highest valuation which any of his witnesses place upon it, there is a sufficient amount and more than a sufficient amount of partnership debt shown to be embraced in the bond and deed of trust of the 4th of October 1834, to absorb any surplus that could *arise out of the avails of the trust fund, after satisfying the prior and well established lien of Wiley.

If I am correct in this view, it is manifest that there is no longer any question (except that of costs) arising out of the interlocutory decree of 1839, and the final decree of 1843 in the original suit, which Niday could now ask us to consider; the real object of that suit being not to determine any controversy as to the personal liability of Niday for the debt claimed by Harvey & Co., but to enjoin a sale of the property under the deed of trust, till the amount and priority of the several liens could be ascertained and adjusted; and then to have a disposition of the fraud according to the respective rights of the several claimants. There is, I think, however, a manifest error in the final decree in regard to the costs of the suit, which Niday has a right to have corrected. In any aspect of the case he came properly into court. There were clouds over the title of the property which he had a right to have removed; conflicting claims to the fund, which he has a right to have settled before a sale should take place. Having thus come properly into court, he ought not to have been subjected to payment of costs, but ought, on the contrary, to have had a decree for costs.

The main matter of controversy, which it is of moment now to Niday to have considered, is that which arises out of the cross bill filed by Harvey & Co. in 1842. After applying so much of the proceeds of the trust fund as was applicable thereto to the payment of the bond for 2485 dollars 5 cents, there remains a large balance due upon it; and Wood, who is shown to be wholly insolvent, has left the state. In this state of things Harvey & Co. seek by their cross bill to make Niday personally responsible for his balance. They allege that Niday and Wood were partners, and that the claim of 2485 dollars 5 cents, for which Wood gave his individual bond, was a debt contracted with them by *said Wood arid Niday, as partners. They refer to the proceedings in the original suit of Niday, and to the opinion of the judge expressed in the interlocutory decree of 1839, holding that the bond was taken for a debt contracted by the firm of Wood & Niday, and that the execution of his individual bond by Wood did not operate, in equity, a discharge of his copartner Niday.

Niday in his answer admits that the bond was given in part for debts due by the firm, but alleges that much the larger portion of the consideration on which it was founded was the individual indebtedness of Wood. He states that a dissolution of the firm of Wood & Niday took place in August 1834; and that by the terms of the dissolution Niday' was to give up his certain interest in the partnership property, and Wood, in consideration thereof, agreed to become solely responsible for the debts: That in October 1834, after the dissolution of the firm, Harvey, with a view of securing the debt from Wood, proposed taking a deed of trust upon the said Wood’s property, including the iron works property: That Wood refused to give the deed, unless Harvey would consent to release Niday from the several notes and claims which had been executed in the name of Wood & Niday to Harvey & Co., and would surrender up the said notes, to be canceled: That Harvey thereupon agreed to surrender the said notes, and release Niday from the payment thereof, provided certain individual debts due from Wood to Harvey & Co. were also embraced in a bond to be given by the said Wood, and secured by such deed: That this condition was assented to by Wood, and the bond and deed of trust accordingly executed. He calls upon the plaintiffs to produce their account against the firm of Wood & Niday, and all the evidences of debt which they may have against them, and also to furnish proof of the indebtedness of Wood & Niday to the ^amount of the bond; and he also contends, that as the claim of the plaintiff is founded on simple contract, and more than five years have been permitted to run before the filing of the cross bill, he is now protected by the statute of limitations, which he asks to be permitted to rely on as fully as if it was especially pleaded.

The judge of the Circuit court in his decree has carried out the views of Harvey' & Co., and made Niday personally' responsible for the debt. In this I think he had erred. I think that the execution of the bond and deed of trust, taken in connection with the attendant circumstances and the subsequent conduct and declarations of Harvey, ought to have been regarded by the court as operating an extinguishment of all personal liability on the part of Niday,- as well in equity as at law. It was argued by the counsel of the appellees that this question was adjudicated by the interlocutory decree of 1839 rendered in the original suit; and that as the said decree had never been set aside, the court was bound, when it came to render the decree in the cross suit, to act in conformity with it, and to hold Niday personally responsible for the debt. I do not think so. It is true that the judge in rendering the decree of 1839 did express the opinion, that as it appeared by the testimony in the cause that the debt due to Harvey & Co. was contracted by the firm of Wood & Niday', the settlement of the account, and the execution by Wood of his separate bond and deed of trust, would not operate in equity as a discharge of his copartner. It is also true that Harvey and Mitchell, in their joint answer to Niday’s bill, aver, that by taking the individual bond of Wood, they did not relinquish their recourse against 'Niday, as one of the partners of the firm of Wood & Niday; and that Harvey' in his separate answer says that the firm of Harvey '& Co. never intended, by taking Wood’s bond for the balance due from Wood & Niday, to thereby release Niday, or *lessen their security in any way; and that he is advised that the firm of Harvey & Co. will have a just and legal claim upon the complainant (Ni-day) himself for any balance of their debt not paid by the proceeds of the sale under the deed.

Still, when we look to the object of Niday’s suit, the character of the allegations made in his bill, and the relief sought, it is obvious that no issue was properly made as to the effect of the execution of the bond and deed of trust upon his personal liability for the debt; and that in order to determine which should be first satisfied out of the proceeds of the trust fund, Niday or Harvey & Co., it was not necessary to decide whether the execution of the bond and deed of trust by Wood extinguished the liability of Niday, or still left him personally responsible for the debt. The expression of any opinion as to the effect of the execution of the bond and deed of trust upon the personal liability of Niday being thus out of the real issue between the parties when the decree of 1839 was rendered, I do not think that the said decree can be relied on as concluding Niday in a proceeding subsequently instituted by Harvey & Co., with a view to obtain a personal decree against him for the debt. The question as to Niday’s continuing liability for the debt, was first fairly presented for decision in the cross suit; and when the original and cross suits came on to be finalty heard together in 1843 it was I think competent for the court, notwithstanding the interlocutory decree of 1839, and without any formal motion for rehearing it, to look fully into the whole case, to refer to all the evidence bearing on Niday’s liability that had been taken in the original suit previous to the rendition of the said interlocutory decree, and also to the deposition of Looney that seems to have been taken a short time thereafter, and to decide the question of Niday’s liability, untrammeled by what was *said by the judge in reference thereto, in rendering the before mentioned interlocutory decree of 1839.

Looking at the case thus presented, it seems to me that Niday should have been regarded as no longer bound, either at law or in equity, for the payment of the debt.

It has been held in some cases that a bond given by one partner for a simple contract debt due from a firm, to the creditor, and accepted by the latter, operates of itself, an extinguishment of the simple contract both at law and in equity; that the giving and acceptance of the bond amounts to a release at law of the other partner, and an extinction of the simple contract debt; and that though equity will interpose its aid when a remedy is wanting at law, the demand continuing, yet it cannot revive a debt which in law is extinguished. The case of Williams v. Hodgson, 2 Har. & John. 474, is one in which this doctrine is fuly maintained.

It may however, I think, be stated as the well settled doctrine of this court, that whilst the mere acceptance of such higher security by a creditor from one member of a firm for a partnership debt due by simple contract, destroys the right of the creditor to proceed at law against the member who was not a party in giving such higher security; yet that a court of equity will look at the orig-inal character of the debt, and will not withhold relief against the member not uniting in the higher security, merely because of the merger and destruction of the legal remedy against him; but will treat that simple contract as a debt still subsisting in foro conscientiaa, unless it is shown that the creditor intended by accepting such higher security to abandon all recourse upon his original demand. In other words, that in a court of law the higher security operates per se a destruction of the simple contract; about that in a court of equity, whether such is-to be the effect of the transaction, is a question to be decided *by proof of the intention of the parties. If by taking such higher security it was not the design of' the parties that the social debt should be wholly extinguished, equity will still hold -all the partners bound. If on the other hand, the higher security is given and accepted as a substitute for the original simple contract of the firm, and with the intention to absolve the firm, all remedy upon the latter is gone in equity as well as at law.

Testing the case by these principles, it seems to me that Nidaj^’s defence to the cross bill is fully sustained. The 'proofs tending to show that in giving and taking the bond and deed of trust, the parties intended that Niday should be ho longer looked to for payment of the debt, are numerous, and when taken all together, are to my mind conclusive:

1st. Niday, though residing in the neighborhood, is not consulted as to the arrangement. The individual bond of Wood is taken, payable twelve months after date, and the deed of trust, which is not to be closed till the end of a year after its date, embraces horses, oxen, wagons, and all the stock of goods then on hand and which might be on hand at the expiration of the time for closing the deed; property which, from its nature, was liable to be wasted and consumed, or greatly deteriorated in value by the use.

2d. It is proved that Harvey placed a high value on the real estate embraced in the deed, and that he desired to purchase it, and also to purchase paper on Wood, declaring that it would be as good to him as cash.

3d. It is proved by Taylor, the trustee in the deed of trust of the 21st August, executed by Wood in part for the security of Niday, that in a conversation held between himself and Harvey just before he obtained the bond and deed of trust of the 4th October 1834, Harvey stated that Wood owed a large debt which he *had then come to see if Wood would make arrangements to secure; and further stated that if Wood would give him a deed of trust on his property he would give him time. That he then informed Harvey of the existence of this deed of trust of the 21st of August, and at his request showed it to him, and that Harvey read it and made remarks upon its contents. That deed, among other things, recited that by the terms of the dissolution Wood was to remain in possession of all the partnership effects, real, personal and mixed, as his oWn property, and was to be responsible to all the creditors of the said Wood & Niday, and also to the said Niday for all the debts due by the firm of Wood & Niday, and also for the private debt due by Wood to Nidajn The agreement between Niday and Wood that Wood alone should be responsible for the debts of the firm, could not of course, by itself, affect the right of any creditor of the firm to prosecute his demand against Niday. either at law or in equity. But proof of its existence,'accompanied by full knowledge of its provisions on the part of Harvey, is strong, if not conclusive, to show that Harvey as well as Wood, by the arrangement of the 4th October, designed to release Niday from all further responsibility for the debt.

4th. Niday, in his answer, avers that it was part of the understanding between Wood- and Harvey that the latter should deliver up to be canceled all the notes held by Harvey & Co. upon the firm of Wood & Niday; and he calls for the production of the account and all the evidences of debt held by the plaintiff, against the firm of Wood & Niday. The account is produced, and it appears therefrom and the evidence in relation thereto, that Harvey & Co. did hold several notes on Wood & Niday. These notes are not produced. Does not the failure to produce them and to account for their nonproduction, go far to sustain the statement of Niday, and to show that by the understanding and arrangement ^'between Wood and- Harvey, he was not to be regarded as any longer bound for the debt?

Sth. By the deposition of Booney it is proved that in a conversation with Harvey in December 1835, the latter stated that if he had known that Niday was good he would not have released him from the payment of a debt against him and Wood. The particulars of the conversation, it is true, are not detailed, nor is there anything said referring the statement of Harvey to the particular debt in question. If, therefore, this deposition stood unaided by the other circumstances in the case, it would perhaps be unsafe to attach much importance to it in determining the rights of the parties. No other debt, however, is shown to have been due from Wood & Niday; and it is not shown that Harvey had released Niday from any other liability. Taking the deposition, therefore, in connection with the other proofs in the cause, it cannot be treated otherwise than as evidence of Harvey’s understanding of the effect of the transaction between him and Wood as a release of Niday from the debt secured by the bond and deed of Wood.

Without further .comment on the proofs and circumstances in the cause, it seems to me that they disclose such a dealing with Wood on the part of Harvey; such a trusting to and giving of time to him, without consulting Niday; such a relying on the individual liability of Wood, as shows that his obligation and the means provided for its payment were alone looked to for the satisfaction of the debt: And in declaring that the execution and acceptance of the bond and deed of trust of the 4th October 1834 operated to release Niday, as well in equity as at law, we shall be giving effect to the real intention and understanding of the parties concerned.

It is argued that such a course on the part of this court would conflict with its former decisions; and we *are referred to Williams v. Donaghe’s ex’or, 1 Rand. 300; Sale v. Dishman’s ex’or, 3 Leigh 548; Galt’s ex’or v. Calland’s ex’or, 7 Leigh 594; and Weaver v. Tapscott, 9 Leigh 424. It is true that in each of these cases it was held that the giving by one of the partners of his individual promise or obligation for a debt of his firm, and its acceptance by the creditor, did not, under the circumstances, release the other partner in equity. But in neither of these cases were the circumstances attending the transaction similar to those found in the case under consideration. In the case of Williams v. Donaghe’s ex’or, no higher security was in fact taken. An account due by a firm was closed by the individual note of one of the partners, so that there was no release of the simple contract, either at law or in equity. There was no circumstance to show that the creditor intended, by taking the note, to look along to the individual responsibility of the partner giving it. It was alleged in the bill that the partner who gave the note (which was payable twelve months after date) was about to leave the state, and that the other partner was a nonresident, but a man of wealth and owning large possessions in the state. The court said that the debt did not cease to be the debt of the firm because of the execution of the note; and that the nonresidence of one of the partners gave jurisdiction to the court; and gave relief.

In Sale v. Dishman’s ex’or, a quantity of corn had been delivered by Sale to the firm of Berryman & Dishman, in pursuance of a covenant which had been signed and sealed by Sale, and by Berryman alone, in the name of the firm of Berryman & Dishman; but it appeared that Dishman had advised Berryman to purchase the corn. Dishman died before the debt was paid, and shortly after his death, in a settlement between Sale and Berryman the surviving partner, a balance was found due on account of the corn; for this balance Berryman *gave his bond to Sale, who, however, declared at the time he took it, that he would not give up his recourse against Dishman’s estate. Some four years after the execution of the bond Sale filed his bill, alleging the insolvency of Berryman, and seeking a decree against the executors of Dishman. This court reversed a decree of the chancellor dismissing the bill, and sustained the demand. They held that it was clearly the intention of the parties that the firm should be liable on the original contract; and neither the death of Dishman, nor the taking of the bond of Berryman, absolved the estate of Dishman in a court of equity. As to the effect of the execution of the bond, Judge Tucker said that “the implication that the taking of Berryman’s bond was intended to absolve the partnership, was not only weakened by the fact that he was the only surviving partner, but was expressly repelled by Sale’s declaration at the time that he would not give up his resort to Dishman’s estate.”

In Galt’s ex’ors v. Calland’s ex’ors, the bond was executed by Bullock, in the name of the firm of Galt, Bullock & Co. It was given for money loaned to him for the firm, and upon its credit. It was shown that the creditor was regularly credited by the amount on the books of the firm, and that Galt had often inspected the books, seen the credit, and made remarks on the heavy balance. There was not only the absence of any proof to show that Bullock alone was looked to, but the presence of the most convincing circumstances to show that the creditor and the partners of the concern all regarded and recognized the debt as a debt of the firm.

In Weaver v. Tapscott, the bond was given by Trimble, with Tapscott as security for the hire of slaves to be employed as boatmen, for the benefit of the firm of Weaver & Trimble. There was no circumstance in the case from which it could be inferred *that the firm of Weaver & Trimble was discharged, and that the individual responsibility of Trimble was looked to. Judge Tucker said that the bond was the only ground of such inference, and that lost all its force when it was considered that it was most probahjy adopted in conformity with general usage in the hire of slaves, and in compliance with the notions and requisitions of the owner.

There is, I think, nothing in either of these cases which militates at all with the conclusions to which I have arrived in this ; and I think that the Circuit court, instead of rendering a decree in favor of Harvey & Co. in their cross suit against Niday, ought to have dismissed their bill with costs.

It does not seem to me, however, that there is any error apparent on the face of the decree entitling Niday to a bill of review, nor do the facts which he states, with respect to the deposition of Campbell, bring his case within the scope of that relief which is given by a court of equity, on the score of newly discovered matters. I think, therefore, that the decrees of the 3d October 1844, and the 16th September 1847, should be both reversed, and the bill of review dismissed at Niday’s cost.

The other judges concurred.

The following is the decree of the court:

In the original suit, the court is of opinion, that Niday came properly into court to enjoin the sale under the deed of trust of the 4th October 1834, till the cloud over the title of the real estate therein embraced could be cleared up, and the ( priorities of the competing liens on the trust property adjusted and settled; and therefore that it was error in the Circuit court, after having properly entertained his bill for this purpose, and given him relief on that score, to dismiss *the bill at his costs. The decree of the 6th October 1834 is, therefore, for that cause reversed. And this court proceeding, &c. the bill is dismissed at the costs of the appellees, Harvey & Co.

In the cross suit, the court is of opinion that the execution of the bond and deed of trust of the 4th October 1834 by Wood, and the acceptance thereof by Harvey, under the circumstances disclosed in the record, operated to absolve Niday, as well in equity as at law, from all further personal liability on account of the debt of the firm of Wood & Niday, for which the said bond was given. That the Circuit court therefore, instead of rendering a decree against Niday for the balance due on said bond, ought to have dismissed the bill of the appellees with costs. The decree in the cross suit therefore of the 6th October 1843, is reversed. And this court proceeding to render, &c., the bill is dismissed at the costs of the appellees.

The court, however, is also further of opinion that there is no error of law apparent on the face of either of said decrees of the 6th October 1843, which entitled Niday to a bill of review, and that the facts alleged by him in his bill of review and proved, in reference to the deposition of Campbell, do not fall within the scope of that relief which is afforded by the court in cases of the discovery of new matter. And that the Circuit court therefore erred in giving relief to any extent on the bill of review. The decrees of the 3d October 1844 and of the 16th September 1847, are therefore both reversed. And this court proceeding, &c., the bill of review is dismissed at Niday’s cost.

The court is further of opinion that Ni-day is entitled to his costs in this court, and decrees accordingly.  