
    M’Pherson vs. L. Rathbone and others.
    A sealed instrument, attested by a subscribing witness, may be proved by proving the hand writing of the witness, if his absence be accounted for, as that he is dead, or cannot be found after diligent inquiry, or resides beyond the reach of the process of the court.
    If the hand writing of the witness cannot be proved, and an ineffectual effort to- prove it by the brother of the witness is sufficient evidence of such inability, the instrument may be proved by proving the hand writing of the party.
    
      It seems, though a partner cannot, after dissolution, bind his co-partner to the payment of a debt by a note, yet he may liquidate a previous account, as by so doing he does not create a debt; that was previously in existence.
    This was an action of assumpsit, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges.
    The suit was against Lyman Rathbone, Moses Rathbone and Samuel Rath bone ; the declaration was for goods sold and delivered, and also contained the money counts. The plaintiff claimed to recover for goods sold in September. 1825, and July, 1826. To prove the partnership of the defendants, he offered in evidence a memorandum of dissolution of partnership, signed and sealed by Samuel Rathbone alone, bearing date 15th August, 1826, in which it was stated that a partnership had existed between the defendants, and was on that day dissolved by mutual consent. This evidence was objected to by the defendant, but the objection was overruled, and the defendants excepted. The plaintiff next introduced articles of partnership entered into by the defendants, bearing date in May, 1823, by which they agreed to enter into copartnership as merchants, under the name and firm of “ L. Rathbone & Co,” *the partnership to continue as long as the parties should mutually agree to its continuance. The articles purported to be signed and sealed by the three defendants, and to have been executed in the presence of H. A. Rathbone. The plaintiff called Samuel Rathbone, junior, to prove the signature of H. A. Rathbone, the subscribing witness. He testified that he was the son of the defendant, Samuel Rathbone, and brother of Henry A. Rathbone, who was at the time of the trial a resident of the state of Tennessee; that he did not know the signature of H. A. Rathbone, subscribed to the articles as a witness, to be the hand writing of his brother Henry A. Rathbone; that he did not think it resembled the present handwriting of his brother, and that he did not know his hand writing at the date of the articles. Upon this evidence the plaintiff offered to prove the hand writing of the defendant Samuel Rathbone subscribed to the articles; the defendant objected to such proof, insisting that either the subscribing witness must be produced or his hand writing proved. The judge overruled the objection, and the defendants excepted; whereupon the signatures of Samuel Rathbone and of Lyman Rathbone were proved, and the articles were read in evidence as their admission of the partnership. It was further proved, that at the time of the existence of the partnership, the other defendant, Moses Rathbone, was always reputed to be a member of the firm. A. witness for the plaintiff then testified that in March, 1827, he presented an account of the items of the plaintiff’s demand to Lyman Rathbone, who admitted the same to be correct, and gave his note for the balance stated to be due, signing the same in the partnership name, to wit, “ L. Rathbone & Co.” The note was produced and deposited with the clerk of the circuit, and the jury, under the charge of the judge, found a verdict for the plaintiff for the amount of his demand, with interest. The defendants having tendered and obtained a bill of exceptions to be signed, move for a new trial.
    S. Stevens, for the defendants,
    insisted that the plaintiff, relying upon the articles of partnership to prove the joint liability of the defendants, was bound to prove them in the same manner as if the action was directly upon the articles. *That he had failed to do so, inasmuch as he had not proved the hand writing of the subscribing witness, and until that was established, evidence of the hand writing of the defendants was inadmissible. He also contended that the proof of indebtedness was not sufficient to entitle the plaintiff to a recovery ; the only evidence adduced to this point was the admission of one of the partners, made after the dissolution of the partnership.
    B. F. Butler, for the plaintiff.
    The article of dissolution was properly received, as it went directly to charge Samuel Rathbone, and the other evidence in the case was sufficient to charge the two other defendants. The articles of partnership were sufficiently proved. The brother of the subscribing witness was called, and could not prove the hand writing of the witness, with which he was acquainted; he said it did not resemble his brother’s hand writing. It might, therefore, with propriety, be considered a spurious signature, and secondary evidence resorted to. But conceding that the articles were not proved in the manner that would have been necessary, had the issue been directly upon the due execution of the same, they were properly received in evidence as the written admission of partnership of those defendants whose signatures to the same were proved. As to the objection to the proof of indebtedness, it cannot be urged here. The case is before the court on a bill of exceptions, and no exception appears to have been taken to that point.
   By the Court,

Savage, Ch. J.

It was undoubtedly competent to have proved the partnership of all these defendants by general reputation, but pro bably no such reputation could be shown as to Samuel Rathbone. The prin cipal question is, whether the articles of copartnership were sufficiently proved, as respects Samuel Rathbone.

Where a sealed instrument is attested by a subscribing witness, the testimony of such witness is the best evidence of its execution. If the subscribing witness is not produced, his absence must be sufficiently accounted for: as that he is dead, or cannot be found, after diligent inquiry; or that he resides #out of the state, and is beyond the reach of the process of the court, &c. 2 Stark. Ev. 337. 1 Phil. Ev. 419. In such case, proof of the hand writing of the subscribing witness proves the execution of the instrument. 1 Phil. Ev. 420. 5 Cowen, 485, 9 id. 148. 2 Stark. Ev. 341, 2, n. 1. Such is the rule in this state, but it is different in some of the other states ; and some of the English cases say, that in addition to the proof of the hand writing of the witness, proof should also be given of the hand writing of the party. 2 Stark, Ev. 342. 1 Bos. and Pull. 300. If the hand writing of the subscribing wit ness cannot be proved, after proper dilligence has been used for that purpose, the' party must then resort to the same testimony as if there had been no subscribing witness ; the hand writing of the party executing the instrument may be proved by any one acquainted with it. In this ease, the execution of the instrument was sufficiently proved, if, under the circumstances, enough was done to prove the hand writing of the absent subscribing witness. It must be conceded, I think, that the plaintiff had procured a witness who would be most likely to know the hand writing of the absent subscribing witness. If his own brother could not prove his hand writing, the court was justified in assuming that it could not be proved, and in receiving evidence of the hand writing of the party.

Assuming the partnership of the defendants to have been proved, as I think it was, then there can be no doubt of the plaintiff’s right to recover. The indebtedness accrued during the existence of the partnership. And though one partner cannot bind his copartner by a note, after the dissoluion of the partnership, yet he may liquidate a previous account. By doing so, he does not create a debt; that was previously in existence. I am therefore of opinion that a new trial must be denied.  