
    Bruen against Marquand.
    One partner of a firm may sign ^0⅞⅛,°! “"jj release a debt „0¾>⅛ part" Where a deed wi^eutemf'in-to between &•. ⅞,,⅞⅛*cred-¡tow,, by which the former assigned all their property to M. and oihers, in trust for their creditors, and who, by the histru-&c.,wiróhdeecí trustee ami ‘“‘⅜ glased ⅛„⅛ ⅛”™ was executed by M. as a trustee who'^wás «*- of a pro-drawn'by s°$ B- of which B 4* Sons, partners in trade, were holders, described in a schedule of debts annexed, to ⅛ 1⅛¾ "¡hidl was by g., one of qJls held/ that the holder» of the the' endorso,-] ior ufKm lhe uon of the whole a-as creditor, as ⅛⅛*'; linquished all right of action against, the makers, and was to be considered as .assenting to a discharge of the makers by the holders also, with a full understanding that his liability to them, as endorsor, was not to be thereby impaired,
    THIS was an action of assumpsit, brought by the plaintiff, as holder of a promissory note, against the defendant, as en-dorsor. The defendant pleaded non-as sum.]) sit, and gave notice of a set-off. The cause was tried at the New-York Sittings, on the 28th of November, 1818, before the late chief justice. The note was dated April 6th, 1816, drawn by Shelton & Beach, for 500 dollars, payable to the defendant, sixty days after date, and endorsed by him. It appeared that M. Brum &f Sons were second endorsors, and that the note had been discounted at the City Bank, and passed to the credit of that - - - firm, and was, afterwards, tafeen up by them after it became due. The firm consisted of ihe plaintiff and his two sons, George M. Bruen and Harman Bruen. But the second endorsement was erased, before the trial.
    #The defendant gave in evidence the following receipt: “ Received, New-York, October 26th, 1816, from Isaac Marquand, Edward W. estate of dividend of 45 per cent, on the amount of a debt secured to be paid, as in the first class of creditors specified in the assign merit of Shelton & Beach to them. M. Bruen &f Sons.” Wilkins, and James M. Hoyt, assignees to the Shelton &f Beach, the sum of' 225 dollars, being a
    The defendant, also, gave in evidence a deed of assignment and n haw, and the schedules thereunto annexed, made the 8th of Jan f.’lHfi, between Shelton ⅜ Beach, of the first part, Marquand, Wilkins and Hoyt, of the second part, and the creditors of S. &f B., named in the schedule A. annexed, of the third part. By this deed S. & B. assigned over all their property to the parties of the second part, in trust for their creditors, who, in the schedule, were distinguished into three classes ; those in the first class were to be first paid out of the proceeds of the property. The deed was executed under the hands and seals of the parties, and, among other creditors, by George M. Bruen, and the defendant. In the schedule (A.) of the debts due by S. & B. of the first class, was written as follows : Isaac Marquand, endorsed to M. Bruen 8f Sons, 500 dollars.” By the deed, the parties of the third part, released and discharged the parties of the first part, S. & B., of and from all actions, debts, dues, and demands whatsoever, &c.
    The plaintiff's counsel objected to the deed and release being evidence, as it was not executed by all the partners of the firm of M. Bruen & Sons, but by one of them only. The chief justice overruled the objection, and the deed was read, on proving the execution thereof by George W. Bruen, one of the said firm, and by the other parties. The chief justice charged the jury, that, if they believed that the note for 500 dollars, mentioned in the schedule annexed to the deed of assignment, as endorsed by the defendant to M. Bruen & Sons, was the same note produced at the trial, they ought to find for the defendant ; and the jury found a verdict for the defendant.
    
      E. Pendleton for the plaintiff.
    Admitting that the plaintiff was a party to the assignment, the release does not, on *the face of it, purport to release the rights or claims of M. Bruen 6 Sons, or of M. Bruen: it can only release any individual claim which George M. Bruen might have against S. & B. A discharge of an endorser, or acceptor, is never implied. Nothing but an express declaration of the holder is sufficient for that purpose. (Dingwall v. Dunster, Doug. 247. 2 Catnpb. N. P. Rep. 185, 136.)
    Again ; the plaintiff cannot be deemed a party to the assignment;, by the execution of it by his partner, who has no authority to bind his co-partner by deed. (4 Term Rep. 313. 7 Term Rep. 267. 9 Johns. Rep. 285.)
    But if the release is to be considered as releasing the rights of M. B. &f Sons, as holders of the note, yet, as the plaintiff and defendant were both parties to, and assenting to, the release of the maker, their respective rights, as between eacli other, cannot be affected by it. Indeed, it is apparent, from the release itself, that it was the understanding of the parties, that the amount of this note was to be provided for by the defendant.
    
      Slosson, contra.
    The schedule, annexed to the assignment and’ release, expressly states, that M. Bruen &f Sous vs ere the holders of the note; and, therefore, on the face of the instrument, they were the creditors and persons to be paid, and the fund was to be distributed among the creditors of S. & B., the makers of the note. One partner may release a debt due to the copartnership. (Pierson v. Hooker. 3 Johns. Rep. 68. Buckley v. Dayton, 14 Johns. Rep. 387. 4 Binny’s Rep. 375.) If the holder of a lull or note compounds with or discharges the acceptor, or maker, he cannot, afterwards, look to the other parties to the bill or note. (Lynch v. Reynolds, 16 Johns. Rep. 41.) It is said that the defendant, being a party to the assignment, cannot set up the release. But the assignment and release is, in effect, a satisfaction of the debt. (Ex parte Wilson, II Vcsey, 410. 2 Caines, 121. 7 Johns. Rep. 209. 2 Sound. 48. note. 13 Johns. Rep. 286.)
    D. B. Ogden, in reply.
    That the deed is so executed as to release a partnership debt cannot be denied; but it must *appear, on the face of the instrument, that it is a partnership debt. There is nothing which shows this, except the schedule, and that describes the note as if it were to be paid to the defendant. In Pierson v. Hooker the release was in the partnership name.
    It is true that, if the holder of a note or bill does discharge the maker, or acceptor, or drawer, he discharges all subsequent parties. The reason is, that the maker is considered as the original debtor, and the endorser as a surety; and that, by discharging the original debtor, the surety loses all right to have recourse against him. (3 Esp. JS. P. Rep. 2 Bos. & Pull. 61. 6 Mass. Rep. 85.) But if the endorser, or surety himself, agrees to the discharge of the maker, the reason does not apply ; he cannot object a discharge of the maker, to which he has consented. Ail the cases cited go upon the ground, that the maker has been discharged without the assent of the endorser. Chitti/, also, puts it on that ground. Why should not the endorser be liable, if he consents to the discharge of the maker? It is just and reasonable ; and it is the fair construction of this assignment and release, that the defendant should remain liable. Ill the fund arising from the property of the makers of the note, went into the hands of the defendant and his co-trustees.
    But we are told this is a release, and that, therefore, the debt is satisfied. How ? By an arrangement made between all the parties for the benefit of the endorsee, the defendant*?
   Van Mess, J.,

delivered the opinion of the court. The assignment must be construed with reference to the schedule, and, taking both into consideration, there can be no doubt that G. W. Brum executed it in behalf of the firm, of which he was a member. He had no private demand of his own against Shelton & Beach, and the only debt against them in which he was interested was the note in question, of which the firm were the holders. The schedule specifies a note of 500 dollars, endorsed by the defendant, and negotiated to the firm, which, no doubt, and so the jury has found, is the note in question. To this may be added the Heceipt, by the firm, of a dividend received from the trustees, which most decisively shows that G. W. tímen, in becoming a party to the assignment, meant, and intended, to act in behalf of the partnership. There can be no doubt that one partner is competent to enter into such a composition as was made in this case, and to release a partnership debt. The question then arises, whether or not the release and discharge of the maker is, in this case, a release of the defendant, the endorser ? The genera! rule is not disputed, but it is argued that this case is not within it. The reason for holding the endorsor discharged, by the discharge of the maker, certainly does not apply here, viz. that the remedy by the former against the latter is materially affected or taken away; because the defendant, who is a party to the assignment, not only as a trustee, but as a creditor to a large amount, as a creditor, released Shelton & Beach from their liability over to him, on this, as well as other notes, en-clorsed by him. He has, therefore, by his own act, relinquished all the remedy he might otherwise have had, in case of his being compelled to pay the whole, or any part, of this note. This is a question of intent, upon the whole instrument. There is no express release of the defendant; and the release of the maker is a discharge of the endorsor, by construction only; and if the intention of the parties was to preserve the liability of the endorsor, it was competent for them to do so. The defendant, is one of the assignees : the funds are to go into his hands, and the note in question is one of the debts which is to be first paid. The assignment contains material stipulations between the three parties, and the defendant must be considered as assenting to the discharge of the makers of the note by the then holders of it; and, it appears to me, with a full understanding, that his liability, as endorsor, was to be left unimpaired. The note in question is inventoried, not specifically, as a debt due to Bruen Co., but thus, “Isaac Marquand endorsed to M. Bruen &f Sons, 500 dollars this, it appears to me, is a plain and unequivocal recognition, by the defendant, that he considered Shelton &f Beach to be his debtors for the amount of the note ; and that his liability, as endorsor, was not to be extinguished by the discharge of the makers. If #this were otherwise, the note would have been mentioned as a debt due from Shelton Beach to M. Bruen &f Co., and not as a debt due from them to the defendant. The intent of the parties clearly appears to have , been, that both the holders of this note, and the defendant, should set the makers free, but that the remedy against the endorsor should remain. It was, no doubt, for this reason that the debt in question was put in the first class. The makers intended to secure (as far as they could) their endorsers, as honorary creditors. As between the holders of this note, and the makers, there was no reason for giving it a preference ; but, as between the maker and endorsor, it was otherwise. I am quite satisfied that this is the true construction of the assignment, and that the defendant must be considered as continuing liable as endorsor; and he must look for indemnity to the funds in his hands,

New trial granted. 
      
      
         One partner, as such, cannot bind his co-partner by writing, under seal, to comply with an award; yet, where an award is made pursuant to such submission, and the amount awarded in favor of the partnership is accepted by one partner, who endorses upon the award a receipt in full, it operates as a release by one partner, or, as an accord and satisfaction, and is a bar to the partnership claim. Buchannan v. Curry. 19 Johns. Rep. 137. See also Cram v. Caldwell, 5 Cowen, 489. M'Bride v. Hagan, 1 Wendalls Rep. 326. Karthans v. Ferrer, 1 Peter's Rep. 228.
     