
    Robert H. Buckner vs. George P. Bierne et al.
    In order to warrant a dissolution of an injunction upon bill and answer, it is necessary that the answer should deny every material allegation with the same clearness and certainty with which they are charged in the bill.
    Therefore, where R. B., against whom B. & H. had obtained a judgment at law, filed his bill for an injunction and other relief, on the ground that he had been compelled to pay as surety for B. & H., upon a note made by H., of the firm of B. & H., and discounted in bank for their benefit a greater amount than the judgment in their favor against him, and that they were insolvent; and B., of the firm of B. & H., answered the bill, denying that the note of H. was discounted for the accommodation of B. & JEL, as H. had no authority to raise funds for the firm in that way : Held, that the answer was not an explicit denial that the discount was for the benefit of B. & H., and the injunction should not be dissolved.
    In error from the chancery side of the circuit court of Madison county; Hon. John H. Rollins, judge.
    Robert H. Buckner filed his bill, and subsequently an amended bill against George P. Bierne and George W. House, partners under the firm and style of Bierne & House, in which in substance he states these facts.
    A judgment was rendered in the Madison circuit court for $378 and interest, in favor of Bierne & House, who sued for the use of Bierne against one Wadlington P. Mills and Buckner, on a note made by Mills, and indorsed by Buckner to Bierne & House. This judgment Buckner sought to enjoin, on the ground that he had paid, since the judgment, $1000 on a note made by House, and indorsed by Buckner for House’s accommodation, and discounted for the benefit of Bierne & House, at the Clinton Branch of the Commercial and Railroad Bank of Vicksburg. That Mills was insolvent, and Bierne & House non-residents, and, as he believes, wholly insolvent. He claims a set-off against the whole judgment, or one at least equal to the original interest of House in the note sued on.
    The injunction was granted.
    Bierne answered and admitted the execution and indorsement of the note, the judgment, and that House was insolvent, but denies that he is so. He states that the effects of Bierne & House are insufficient to pay the debts of the firm. He has paid $14,000 of those debts, none of which sum will be repaid from said effects. He denies that House had authority to raise funds for the firm, by obtaining a discount on a note so made and indorsed. The language of the answer is as follows :
    “ This respondent denies the allegation in said complainant’s bill, that the note referred to therein of said House, on which said complainant was indorser, was for the use or benefit of said Bierne & House; said House had no authority to raise funds for ^aid firm in that way, and never did so raise them with the knowledge or assent of this respondent.”
    On this answer, the injunction was dissolved, and Buclmer prosecuted this writ of error.
    
      Van Winkle and Potter, for plaintiff in error.
    1. The injunction was improperly dissolved. The answer does not deny that the note was discounted for the benefit of Bierne &. House. Bierne declares that House had no authority “to raise funds for said firm in that way, and never did so raise them with the knowledge or assent of this respondent;” and therefore he denies that the note was for the use or benefit of the firm. The answer shows that this denial is a mere inference, based upon an alleged want of authority in House so to raise money for the firm ; but there is nothing to show that this was a limited partnership, and known to be such, and therefore the act of House was bindiñg on the firm, if such act was within the scope of an ordinary partnership. There can be no doubt that one partner can, in the absence of known restrictions on his authority, so borrow money for the firm.
    2. The allegations, in the answer, of the dissolution of the partnership, of the insufficiency of partnership assets, of payments by Bierne, &c., are all of new matter, and to be disregarded on motion to dissolve on bill and answer. We say, then, that the averment of the bill is not denied, and the offset stands good as against the judgment.
    3. Again. If the answer is taken as a denial, the offset is good to the extent of the original interest of blouse in the note sued on. The fact that Bierne is the usee in the judgment does not alter the case, for he admits that it is a part of the firm assets. But, if it were not, it is shown and admitted that House is insolvent, and so Bierne must be regarded as the sole paying partner of the firm. He will not be permitted to force from Buckner the amount of the judgment, when he is liable for the $1000 paid by Buckner for the firm; nor will he be allowed to collect the share of House in the judgment and apply it to the use of the firm; for House is insolvent, and Buckner would be remediless, without relief in the mode sought, in case the $1000 be considered as paid for the benefit of House alone. Moreover, both defendants are non-residents. In a case like this, the rule as to mutual demands, <fcc. in matters of set-off, does not apply. Insolvency and non-residence take the case out of the rule. Chamberlin v. Stewart, 6 Dana, 33; Pond v. Smith, 4 Conn. 302.
    
      Hughes, for defendants in error.
    The complainant, in his original bill, insists that he is entitled to relief, because the judgment against him was and is in favor of Bierne So House, use of House, and he had paid for House, who was insolvent, about one thousand dollars in bank. By his amended bill, he admits that the judgment was not for the benefit of House, but for the benefit of Bierne, and alleges that the note he had paid in bank, was discounted for the benefit of Bierne & House, which the defendant Bierne denies, and there is no proof; the injunction was therefore properly dissolved.
   Mr. Justice Thacher

delivered the opinion of the court.

The bill and its amendment, in the circuit court, in chancery, of Madison county, was filed to enjoin a judgment at law obtained by Bierne & House, for the use of Bierne, against Mills, maker, and Buckner, indorser of a promissory note. The bill alleges, that since the judgment, Buckner has paid an amount much greater than the judgment at law upon a promissory note made by House, and indorsed by Buckner, for his accommodation, and discounted for the benefit of Bierne & House at the Clinton branch of the Commercial and Railroad Bank of Vicksburg ; that Mills is insolvent, and Bierne & House are nonresidents, and believed to be insolvent, and concludes by claiming a setoff at least equal to the original interest of House in the promissory note, upon which the judgment at law was obtained. The separate answer of Bierne admits the rendition of the judgment, and that House is insolvent, but denies the allegation of insolvency as to himself; it alleges that the assets of the firm of Bierne & House are insufficient to meet its liabilities, and that he has paid a large amount of the partnership debts, for which he expects no return from its assets or effects. The answer further denies, that the note indorsed by Buckner, for the accommodation of House, was for the use or benefit of Bierne & House, alleging that House had no authority to raise funds for the firm in the manner described, and did not do so within his knowledge and assent.

It is clear from the answer, that Bierne does not deny the material' allegation of the bill, that Buckner’s indorsement of the note of House was made, and that the note was discounted in bank for the use and benefit of the firm of Bierne & House. He alleges that no such discount was authorized or obtained with his knowledge or assent, and this is merely an allegation of a want of knowledge of any such discount. The denial that the note was made for the use or benefit of the firm is not absolute, but rests upon another allegation; that House had no authority to raise funds in that way. In order to warrant a dissolution of an injunction upon bill and answer, it is necessary that the answer should deny any material allegation with the same clearness and certainty as they are charged. 3 Bland’s Ch. 163.

The decree must be reversed and the cause remanded.  