
    Simpson and Morrison ads. Robert Geddes.
    
      Columbia,
    
    
      1804.
    
    Where one copartner appears, and the other makes default,there-gular mode of proceeding is, for the plaintiff to go oa and get judgment for the whole debt &- gainst the one appearing, audio execute his writ of inquiry against the one making default, for the whole also.
    A letter written by one co* partner afteF the dissolution of the copart-nership, acknowledging the justness of a debt, wiU hind theotheru And endor&e-s ment of a note by one executor, is good $ hut if the letters testamentary are called for, they must be produced, to shew I)is authority for that purpose.
    ASSUMPSIT, tried in Laurens district. Verdict for plaintiff. Motion for new trial.
    The declaration in this case contained two counts;
    1st. For goods sold and delivered to the copartnership; and
    2d. Another on a note of hand endorsed to the plaintiff, by the executor of William Gist, deceased.
    To this action, one of the defendants, Mr. Morrison, appeared, and pleaded separately to the first count, non assumpsit; the other made default. To the 2d count, the copartner who appeared, pleaded the same plea of non assumpsit, and the other made default, in like manner as above.
    On the trial, plaintiff’s counsel urged, that this separate plea of one copartner to a joint action, was an evasion of a just demand on the part of the copartner who put in those separate pleas to a joint debt, which he considered as tantamount to making default; he therefore moved for leave to go on and prove his case against them both, as for a joint mercantile transaction, which was granted. He then produced a letter from one of the copartners, Mr. Simpson, acknowledging the receipt of an account current from the plaintiff, and that the balance was justly due to the plaintiff, as therein stated. To this evidence, Morrison, the other defendant, took an exception, alleging that this letter did not bind him, as it was written since the dissolution of the copartnership, by Simpson the other copartner, without his knowledge or approbation. But the presiding Judge (Bay) overruled this objection, inasmuch as this was no new contract or undertaking, since the partnership was dissolved; but-the acknowledgment of a debt contracted while the copartnership existed, which was binding on all . ° the copartners. It was therefore permitted to go to the iurv , , , as evidence against them both.
    
      len-ofFart-asr. * “i-.u’
    To support the second count in the declaration, on the endorsed note of hand given by the defendants to the de- ■ ceased William Gist, and negotiated by one of his executors after his death, the plaintiff’s attorney then called two witnesses one to prove the hand-writings of the defendants to the note, and the other to prove the endorsement of the note by one of William Gist’s executors, transferring the note in question. Upon which, Morrison’s attorney called for the letters testamentary on old Gist’s estate, to show that the executor had a power to transfer this note. But this the presiding Judge overruled, as there was no proferí of the letters testamentary in the count in the declaration on the note, nor was oyer of them demanded by the defendant, Morrison, when he filed his plea.
    The plaintiff’s attorney then proved the note and endorsement, and had a general verdict on both counts for the whole demand.
    This was a motion for a new trial, on the several grounds ©f the exceptions taken at the trial. When, after hearing counsel on both sides, the court resolved, that the most regular mode of proceeding in a case like the present, where one copartner appears, and the other makes default, is for the plaintiff to go on and get judgment against the one appearing for the whole amount, and to execute his writ of inquiry for die whole amount against the one. making default, by which means both will be bound for the whole amount, as if they liad both appeared, or both made de-» fault. But as no injustice has been done the defendant Morrison, who alone contested the plaintiff’s claim, and as he has had every advantage of his pleas that the law could allow him, the court did not think this a good ground for a new trial. With respect to the_ testimony offered in support of the first count, they had no doubt but it was regu» lar and proper. It was not like anew contract made since the dissolution of the partnership, but only evidence of one made and fully due while the copartnership existed, and the acknowledgment of any one copartner on the behalf of the others, and who knows, and probably has been most conusant of the partnership concerns, will bind the others, as much as the acceptance of a bill of exchange by one on behalf of the whole, will bind the rest.
    3 Salk. 120. ;i Bac.
    
    1 Cromp. 3ó:>.
    See also flic enseof 7VWv/>~ son and Howard ads. Jtd-minisiratcritw ’ Kelly9 post.
   In regard to the second count in the declaration, a majority of the judges, Grimke, Waties and Lee, were of opinion, that the letters testamentary should have been produced, to show the power of the executor of William Gist to transfer the note ; and that there should be a new trial, unless the plaintiif would agree to release as much of the damages as the note and interest amounted to, which would leave the note out of the question,

BREVARD,

contra, was of opinion, that the not demanding oyer of the letters testamentary, was a tacit admission of them, and that it was too late, after verdict, to take advantage of the party’s own laches, in not making such demand, if he was doubtful of the executor’s authority to negotiate the note.

Bay,

who had presided at the trial, and who had overruled this objection, could give no opinion on this motion»

There was, therefore, a rule for new trial nisi, fee»,

N. B. The plaintiff’s attorney afterwards released the damages on the 2d count, which left the Verdict on the 1st one unimpeached.  