
    William Mathews, v. B. P. Colburn & Co.
    The testimony of a deceased witness given at a former trial, is not admissible as evidence at a subsequent trial, although the same question be involved between the same parties, if another person be added as a party at the subsequent trial; nor is such testimony admissible where, if the parties to the trial in which the evidence is sought, had been parties to the former trial, the deceased witness must have been joined and could not have testified.
    Where one withdraws from a co-partnership, taking a release from all its liabilities, and leaving it in possession of all its assets, and the remaining partners compound the old debts, by giving notes subsequently made and endorsed for their accommodation, the endorser, after paying the notes,cannot recover against the retired partner,either as maker or on a count for money,paid and expended to his use.
    No person can, by a voluntary payment of the debt of another, make himself that man’s creditor, and recover from him the amount of the debt so paid.
    Tried before Mr. Justice Richardson, at Charleston, Fall Term, 1848.
    This was an action of assumpsit, in which the plaintiff declared against B. P. Colburn, Isaac Mordecai, and James S. Colburn, as partners, under the style of B. P. Colburn & Co., on twenty-two notes signed B. P. Colburn & Co., payable to plaintiff, the earliest bearing date the 22d November, 1841, and the others coming down from that date to the year 1843. The declaration likewise, contained the money counts. James S. Colburn plead separately ‘'non assumpsit.”
    
    The first witness introduced, was
    
      Mr. Syme, who pro ved the signatures of the notes to be in the hand-writing of B. P. Colburn, one of the firm of B. P. Col-burn & Co.; that the witness had been the clerk of said firm from the year 1833; that the recognized partners were B. P. Colburn and Isaac Mordecai; that James S. Colburn was the father of B. P. Colburn; visited very frequently the store of the concern: that he was consulted both by B. P. Colburn and Mordecai, as to the affairs of the firm, and that his advice had manifestly great influence with them; that upon every matter of importance they had recourse to him for advice; that said James S. got what goods he wanted, and whenever he wanted, and they were charged to him at cost. This was a dry goods store in King-street; said James S. had a dry goods store himself, under his own name, lower down in the same street. He had great experience as a dealer in dry goods, but not greater, witness thought, than Mordecai. From these facts, witness had considered James S. a partner in the concern. Witness had never heard him or B. P. Colburn or Mordecai, speak of the first as a partner: and knew nothing further than already stated, going to show his interest, except what he heard from J. II. Colburn, as to the dealing of the firm with the house of the Jewetts in New-York.
    Witness, on cross-examination, stated, that the above firm failed some time in 1841; that, shortly after the failure, an angry quarrel arose between James S. Colburn and his son, B. P. Colburn; that, after this quarrel, James S. Colburn ceased to visit the store of B. P. Colburn & Co., and was never, to his knowledge, afterwards consulted by either his son or Mordecai: that he knew of no intercourse, afterwards; that long after the quarrel, witness continued to be clerk, and accounted for what he sold to B. P. Colburn, and did not know what he did with the money, or what was the value of the stock of goods, &c., when James S. ceased to come about the concern.
    The notes in this suit were given to various creditors of the concern, after the failure, in compromise of old debts, they being taken at less than the amount of the debts with Mathew’s endorsement.
    
      Mr. Lemon proved that he was a clerk in the same establishment, from 1833 to 1837, and that during that time he witnessed all the circumstances detailed above, going to show the interest of James S. Colburn, in the concern; and further, that James S. knew the private marks of the goods, and had them changed when he thought them too high or too low; and in all respects, as it appeared to him, exercised as much, if not more control ? than either B. P. Colburn or Mordecai. He was not acknowledged as a partner publicly, however, and witness never heard any of defendants speak of him as a partner. He knew nothing of the concern after 1837.
    
      J. Henry Colburn stated, that he came to this State in 1836, at the request of his father, James S. Colburn, and was by him sent to the store of B. P. Colburn & Co.; his father stating to him, that he took one-third of the profits, and was a partner in fact, though it was unknown to Mordecai, and his father requested him to say nothing of this fact to Mordecai. He proved like acts of authority and control, with the other two witnesses, on the part of James S. up to the period of the quarrel. The quarrel he said took place in the fall of 1841, some time after the failure of the concern. A fter that time, he never saw any intercourse between James S. and B. P. Colburn, and Mordecai. James S. never came to the store, nor did he, after this, as far as he knew, draw any part of the money, or in any other way interfere in the business. Witness, however, did not think there was a dissolution of co-partnership: he knew of no notice being given, and he, witness, continued in the store upon the same footing as formerly. Witness could not state what that footing was. He did not think he was a clerk or a partner, or principal or agent. He received no salary, but was to draw what money he pleased, and do what he pleased. He was accountable to nobody. Was put there by James S. under the promise that he would transfer his interest in the concern to him, but James S. did not say when, or whether it was to be in his life time, or after his death. Never saw James S. in the store after the fall of 1841, or had any intercourse with him, or knew oí his drawing any thing from the store, but witness considered himself as on the same footing after that time as before.
    Witness and Mordecai bought out the concern of B. P. Col-burn & Co. in 1844; they gave, he thinks, their notes for $6,000, which was afterwards paid into the hands of B. P. Colburn. Theyr (he and Mordecai) paid $5,000 more, which they were not bound for, of the indebtedness of B. P. Colburn & Co., This money passed through the hands of B. P. Colburn. At the time of the failure, witness stated that James S. sent him to New-York, to get an extension of time on the debts. He did not succeed. After his return, the creditors of B. P. Col-burn & Co. compromised at 50 cents in the dollar, taking for that amount the firm notes signed by B. P. Colburn & Co., and endorsed by William Mathews, the plaintiff. Believes the compromise notes to be the notes sued on. Did not know of his own knowledge, whether Mathews paid those notes or not. Witness and Mordecai, when they purchased in 1844, had nothing to do with James S. Colburn, nor was any money passing' through his, witness’ hands before that, paid over by witness, or accounted for by him to James S. Colburn.
    William Mathews had at times endorsed for the concern to large amounts, previous to their failure. Had no interest in. doing so, but good feeling. He was the father-in-law of B. P. Colburn. Witness saw Mr. Mathews endorse the notes given at the compromise; the same notes he supposes now sued.
    The record of a judgment in favor of James S. Colburn against B. P. Colburn & Co., for $51,000, was introduced, dated July 1841, and assigned to plaintiff.
    Witness heard his father speak of this judgment, and say that it had the first lien, and would swallow up the assets of the concern of B. P. Colburn & Co. Witness did not know whether this judgment was paid or not, who owned it, or what became of the assets of the concern, except what was sold to himself and Mordecai. Nothing arising from this source, to his knowledge, ever went into the hands of James S. Colburn.
    
      F. A. Colburn, residing in Boston, Mass., examined by commission, stated, that in the year 1828, he formed a co-partnership in the city of Charleston, under the style of F. A. Colburn & Co.; that his co-partners in said firm were James S. Colburn and Isaac Mordecai. The whole capital was owned by one of the partners, and that individual was James S. Colburn, the other parties merely contributed their labor and skill. The profits were divided in this manner: Mordecai was to receive one third, and deponent was to receive two-thirds, which two-thirds were to be equally divided between James S. Colburn and said deponent. This division between James S. Colburn and said deponent, said deponent has reason to believe was unknown to Mordecai. That when he left the concern, his brother B. P. Colburn took his place in the concern on the same terms—the partnership in other respects being the same: James S. was to take the same share of the profits, and was to continue dormant. Witness has for six or seven years conferred with James S. only by letter. That from James S. he learned by a letter, which he had lost, that he was a partner, and he had heard the same thing verbally from Mordecai and B. P. Colburn.
    Defendants’ counsel then stated the grounds of defence to be:
    1. That there was no such co-partnership, as made James S. Colburn liable on the debts of the concern of B. P. Colburn & Co., because his interest, if he had one, was unknown to Mordecai, and matter of private arrangement with B. P. Col-burn alone.
    2. That if James S. ever was a partner, he was a dormant partner unknown to Mathews, and had withdrawn from the partnership before the notes sued on were given, and of course before the money was paid by plaintiff on his endorsements thereon.
    Defendants’ counsel then introduced Alexander Mazyck, and proposed to prove by him, that Isaac Mordecai, who is since dead, swore in a former trial, to which plaintiff, and defendant, James S. Colburn, were parties, and in which this partnership was put in issue, that he, Isaac Mordecai, had never stated to Frederick A. Colburn, that James S. was a partner, and further, that he did not know that he, James S. Colburn, received or claimed any part of the profits of the concern. And to prove that in the same trial, B. P. Colburn, one of the defendants in this case, had sworn, that said Morde-cai, he believed, knew nothing of the interest of James S. Colburn in the concern:
    This testimony was objected to by the counsel for plaintiff, and the objection sustained by the Court. Defendants’ counsel then read the following instrument of writing, the execution of which had already been proved by the witness Syme.
    
      
      {Copy.)
    
    State op Soutii-Carouna.
    Know all men by these Presents, That we, Benjami: P. Colburn and Isaac Mordecai, of the city of Charleston, in the State aforesaid, as well for and in consideration of three dollars to us in hand paid by James S. Colburn, of the said city and State, at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, as for divers other good causes and valuable considerations, have remised, released, quit claimed, and forever discharged, and by these presents for ourselves, our heirs, executors, and administrators, and every of them, of and from all, and all manner of action and actions, cause and causes of action and actions, suits, debts, dues, duties, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, agreements, promises, damages, judgments, executions, claims and demands whatsoever, in law or equity, or otherwise howsoever, which against the said James 8. Colburn, we or either of us ever had, now have, or which, we or either of us, our heirs, executors, or administrators, hereafter can, shall or may have, for or upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents.
    Witness our hands and seals this twentieth day of November, in the year of our Lord one thousand eight hundred and forty-one, and in the sixty-sixth year of the Independence of the United States of America.
    
      iSigned, sealed and delivered ) {Signed) B. P. Colburn, [l. s.] in Ine presence of ) “ I. Mordecai. [l. s.]
    H. Casey.
    J. P. Syme.
    Mr. Memminger, on behalf of defendant, proved that he was of counsel for B. P. Colburn, in an angry controversy, that arose between him and James S. Colburn, seme time in the year 18 41, subsequent to the failure of the firm of B. P. Col-burn & Co. The son insisted that James >3., his father, was a partner, and the father denying it; that a very bitter, heated and painful altercation was lor some time continued between tbem, and he, witness, was called in professionally, to adjust the difference; that an adjustment was effected which was intended to be final; that the “Release” exhibited was then executed, and there was, in his presence, a full, and, as was said by the parties, a final settlement of all business relations between them. To the last, the co-partnership was affirmed, on one side, and denied on the other. B. P. Colburn & Co. had before this, confessed judgment to James S. Colburn, to the amount of 50 or 60,000 dollars. This judgment had the first lien on the goods of the concern. This judgment was in the adjustment transferred to Mr. Mathews, and he, Mr. Mathews, gave for it his bonds for $12,000 or $12,500, payable to James S. Colburn, and agreed to endorse certain notes, which were to be taken by the creditors of B. P. Colburn & Co., in compromise of old debts of the concern. Witness, as attorney for some creditors, agreed to take such notes in satisfaction of claims he held, as attorney, against B. P. Colburn & Co., receiving in notes thus endorsed, 50 cents in the dollar of the claims. Being asked by plaintiff’s counsel whether he did not consider James S. Colburn at that time, a partner, as to third persons; witness stated that he examined the books of the concern, and made all the investigation he could, and came to the conclusion that he, James S. Colburn, could not be made liable as a partner, and it was therefore that he compromised by taking half of the debts, with Mathews as security. He did not know then that any witness would swear that James S. received one third of the profits, and had admitted himself a partner. If he had known this, it would of course have altered his views, but witness would have thought any one, who witnessed the settlement he did, mad, to suppose that the relation of partnership existed after that time.
    The alleged partnership was the very gist of the controversy. By the adjustment, James S. on his part transferred his judgment of 50 or 60,000 dollars to Mathews, for 12, or 13,000 dollars, and B. P. Colburn and Mordeeai, executed on their part, their release in full. Witness had hoped that the painful controversy was thus settled forever. Defendant here closed.
    Upon this state of facts, the presiding Judge charged the jury, that this was a case in which the law was simple, though there might exist difficulty in its application. That his views as to facts, and the inferences to be drawn from them, should not bind them, but that his views of the law should control. His charge was, that if James S. Colburn was proved, to their satisfaction, to have participated in íhe profits of the concern of B. P. Colburn & Co., he was undoubtedly liable for all losses. That participation in the profits constituted partnership, and that as to third parlies, creditors for instance, it was immaterial whether this was known to Mordecai, or not; an arrangement with B. P. Colburn alone would be sufficient to create a liability to pay the debts of the concern, contracted during the period that he was thus interested. The weight of evidence, he told the .jury, to his apprehension, proved a co-partnership: but of this they were to judge. James S. Colburn, however, if a partner, was a dormant partner, and if Mathews did not know him as a partner, he ceased, as to Mathews, to be a partner the moment he withdrew from the concern.
    Whether he did withdraw, he charged the jury, was for them to determine, but that to him it appeared that there was a withdrawal from the partnership on the part of James S. at the time of the settlement and execution of the release. He charged further, that if the jury agreed with him, as to that withdrawal, the plaintiff could not reco ver on the notes as notes, inasmuch as it was not permitted by the law, that one partner should bind another, by note, after dissolution of the co-partnership, and that in this case, want of notice of dissolution, made no difference. But he was equally clear, that if the plaintiff, by the endorsement of those notes, and the subsequent payment of them, had satisfied old debts of the concern, for which James S. Colburn might have been made liable, he was entitled to recover on the money counts of his declaration, as for money paid and expended to the use of defendant. That though it was true, as contended by defendant’s counsel, that one man could not force himself on another as a creditor, yet where one man paid a bona fide debt of another, and thereby lifted from him the burthen of the debt, he by this act, at once acquired prima facie, a right of action against the party bene fitted by the payment. The turning point in the case, therefore, he told the jury, was whether or not, James S. was a partner in the firm of B. P. Colburn & Co., and if yea, did plaintiff, by endorsing and paying notes, or in any other way, pay debts, for which he, James S. Colburn, was liable. If these questions were answered in the affirmative, they should find for the plaintiff, if in the negative, then for the defendant.
    The jury found for the plaintiff, the amount of the notes sued on, with interest, and defendant appealed and moved for a new trial.
    1. Because his Honor, the presiding Judge, rejected evidence which was offered to prove that Isaac Mordecai, who is now dead, and Benjamin P. Colburn, who is a party to this action, had testified on the trial of another cause, in which the defendant James S. Colburn was plaintiff, and the plaintiff in this cause was defendant: that they had never informed Frederick A. Col-burn that James S. Colburn was a partner of the concern of B. P. Colburn & Co., or that there was any agreement made by them or either of them, with James S. Colburn, that he should take a share of the profits of the concern, the said Frederick A. Colburn being a witness in this cause examined by commission, and having testified that he had been so informed by the said Isaac Mordecai and B. P. Colburn. And also to prove that the said Isaac Mordecai had testified on the same trial, that if James S. Colburn was a partner in the concern of B. P. Colburn & Co., or there was any agreement that he should share in the profits, he, the said Isaac Mordecai, did not know it.
    2. Because his Honor charged the jury, that if there was an agreement between B. P. Colburn and James S. Colburn, that the latter should take a part of his share of the profits of the concern, though such agreement was unknown to the said Isaac Mordecai, it was sufficient in law to constitute James S. Col-burn a partner with B. P. Colburn and Isaac Mordecai, in the concern of B. P. Colburn & Co.
    3. Because his Honor charged the jury, that if James S. Colburn ever was a dormant partner of the concern of B. P. Colburn & Co., though the notes sued on might have been made by the other partners, after he had ceased to be a partner, and therefore he was not liable to be sued on them as notes; yet if the notes were given for debts of the co-partnership contracted while he was a partner, and were paid by the plaintiff, the money paid on them was money paid to the use of James S. Colburn, as well as the other defendants, and the plaintiff might therefore recover on the count for money paid to the use of the defendants.
    4. Because his Honor charged the jury as follow's, to wit; that supposing it proved to their satisfaction that James S. Colburn was originally a dormant partner in the firm of B. P. Colburn & Co., and that a dissolution took place on or previous to the 20th November, 1841, then the said James S. Colburn was not liable as a partner on notes given, after the dissolution, by B. P. Colburn in the name of the firm, but that though said notes were not binding on the said James S. Colburn, as motes, yet, if they were given in compromise of pre-existing debts, for which said James S. was liable as partner, and plaintiff afterwards paid said notes, he, plaintiff, was entitled to recover from James S. the amount so paid, under the money counts of plaintiff’s declaration. That though it was true, that a* party could not force himself on another as a creditor, yet the payment of money on plaintiff’s part, by which a burthen of debt was lifted from James S. Colburn, gave plaintiff, prima facie, a right of action for money paid to the use of said defendant; and that the facts of co-partnership,.and bona fide indebtedness to third parties being proved, a payment by plaintiff on such indebtedness, though after the dissolution of the partnership, entitled plaintiff to recover on the money counts.
    
      5. Because the charge of the Court, and the verdict of the jury, were in other respects contrary to law and the evidence.
    Hayne, for the motion.
    The testimony of deceased witnesses given in a former trial between the same parties, good evidence in a subsequent trial. It may be read in equity; 1 Greenleaf Ev., 193,197, and 199; Gresleya. Gresley, 17 Sargt. & Rawls, 4012. This is secondary evidence, on the loss of the primary, and therefore good, as the best to be obtained. There was no privity between Mordecai and J. S. Colburn; Story on Partn. 2, 3 and 6. The consent of all must be obtained to the admission of a new partner. There was no reciprocity between Mordecai and J. S. Colburn; he could not have bound him by signing notes including him. In Mersey v. Bogvit, 14 Johns., 318, creditors failed to subject one, not recognized as a partner by all the firm. There was no request to pay, nor was it done at the instance of Colburn; these arc necessary to be averred and proved in every declaration; Bank of South Carolina' v. Humphrey & Mathews, 1 M’C., 3S8. Simple benefit, will not do; 1 T. R., 20; 8 T. R., 310; 8T.R..,CIS; I Saund. Re., 264; 3 Johns., 434; 8 do., 340; 6 do., 137; 10 do., 361. Refusal to sanction the binding destroys the assumpsit; Lord Galway, v. Mathews & Smithson, 10 East., 264. Story on Part., 438, 459, 474, and 481; Cheves, 209.
    Yeadow, contra.
    
    As to third persons, parties may be made liable as partners contrary to the contract inter se se. The thing is community of profit and loss; Story on Part., 52 and 54; Grace v. Smith. A secret partner diminishes the profits by which a creditor is to be paid; 1 II. 131., 155; money applied to the benefit of a partnership, can be recovered on the common count. The Tradesman’s Bank, v. Asi or, 11 Wend., 87. The request of one partner is the request of all, and all had the benefit.
    Rhett, contra.
    
    Said the case of the Bank of South Carolina v. Humphries & Mathews, could not apply in this case.
    Walker, for the motion.
    Profits can be sued for by the party entitled to them; Story on Part., section 50 and 33. There must be mutuality in the contract. A partner has a right to an account in equity; Bray v. Fromont, 6 Mad. E. R., 5; Brown v. Detastet, Jacob’s E. R., condensedR., 133. A sub-contract is not a partnership; Exparte Barrow, 2 Ruse’s Rep., 253 and 254; Colyer on Part., 203. There should be some evidence of a party being accepted as a partner; Colyer on Part., 103. If the partnership, in this case, ever existed, it was dissolved by the release. No notice of a dormant partner’s retiring, necessary; Story on Part., 249, section 159. The liability of a dormant partner ceases as soon as a participation of profit ceases, without notice; Story on Part., 194; do. 246; 3 Pick., 177. Upon the dissolution, the power to endorse or make a note ceases, 1 M’C., 16. These notes cannot therefore be valid against J. S. Colburn; nor is he liable on the money counts. No new contractcanbcmade after dissolution; Colyer on Part., 370. Nor can any contract made by the firm after the retirement of the dormant partner, bind that dormant partner. No credit is given to a dormant partner; Mathews paid no money on account of J. S. Colburn. There was no contract between them; 6 Cowan, 497; Lord Galway v. Smithson, 10 East., 264. One of a firm may give notice of his intention not to embark it, such a speculation, and pro tanto, a dissolution, as to such speculation.
   O’Nkali. J.

delivered the opinion of the Court.

Upon the second ground of appeal there is some diversity of opinion in the Court; it is therefore intended, that it should not be at all considered in this opinion. As to the first ground, we all agree with the Judge below, that the evidence mentioned in it was inadmissible, and could not be heard. The rule is well settled by cases in our Courts as well as elsewhere, that the testimony of a deceased witness, in a cause between the same parties, or their privies, and where the same matter was in issue, may be given in evidence. It would be enough to say, that the case in which the testimony was given, was not between the same parties, although involving the same question. The parties were, in that case, James Smith Colburn and William Mathews. One other person is a party. But at the trial of the case, in which Mordecai was examined, if the parties now before the Court had been parties, he also as a partner, must have been joined, and then he could not have testified. This makes it plain, that his testimony cannot be evidence now. Under the 3d and 4th grounds, the question arises, whether James Smith Colburn is liable to be charged with the debts claimed by the plaintiff? We agree with the Judge below, that he could not be charged as one of the makers of the notes sued on. They were not only not made during the time he is alleged to have been of the firm of B. P. Colburn & Co., but they were also not given as renewals of existing debts. They were liabilities created by B. P. Colburn and Mordecai, in compounding for the debts of the firm. They were made at last by the ostensible partners, and all who were known to the plaintiff, or the persons to whom the notes were made, and upon whoso credit they were endorsed or accepted. It is. therefore plain, that James Smith Colburn, who can, in no event, be regarded as a partner at the making of the notes, cannot be bound by them. But we do not agree to the position contained in the charge of the Judge below, that “if the plaintiff, by the endorsement of those notes, and the subsequent payment of them, had satisfied old debts of the concern, for which James Smith Colburn might have been made liable, he, the plaintiff» was entitled to recover on the money counts of his declaration, as for money paid and expended to the use of the defendant.”

The rule is clear, that “no person can, by a voluntary payment of the debt of another, make him that man’s creditor, and recover from him the amount of the debt so paid;” that the plaintifl cannot, in the most favorable point of view, be regarded as standingon any other ground, than,as having without request, in fact, or legal necessity, paid the debts ofB. P. Colburn & Co., including, as he alleges, Janies Smith Colburn. For the debts which he has paid, are beyond all doubt the debts of B. P. Colburn and Mordecai. The former debts were compounded as the debts of the same persons, and paid by these notes, endorsed by Mr. Mathews. If James Smith Colburn is to be regarded as a member of the firm, the payment thus made, if it can at all be ascribed to the plaintiff, is purely voluntary; for there was no necessity, so far as he was concerned, that Mr. Mathews should pay his debts, for the other partners liquidated them. He had ceased to be a member of the firm; and if there be any right to charge James Smith Colburn, it cannot be on the money paid, it must be on the old debts themselves. But we don’t place the case on this narrow ground. We think that James Smith Colburn can, in no aspect, be charged by the plaintiff, with the debts now before the Court. The payment of the old notes or debts was made by the notes of B. P. Colburn and Mordecai, endorsed by Mathews; being accepted as satisfaction from B. P. Colburn and Mordecai, it was their payment. Could they have recovered against James Smith Colburn? Their release, executed at the settlement between them and him, prevents the possibility oí that. How can the plaintiff claim under such circumstances? But this case, in fact, stands upon still plainer grounds. If it be conceded that the firm of B. P. Colburn & Co. originally consisted of B. P. Colburn, Mordecai, and James Smith Colburn, still it is plain, that on the 20th November. 1841, that firm ceased to exist, so far as James Smith Colburn was concerned. He then retired from the concern, leaving it in the entire possession of all its assets. The continuing partners, as I understand from the testimony, compounded the old debts at 50 cents in the dollar, and the plaintiff endorsed for them. This, unquestiona-ably is any thing else than a right to charge the defendant, James Smith Colburn. The plaintiff and the other members of the firm, have paid what the continuing partners undertook to pay, by their release of the liability of the retiring partner to them. The debts, therefore, paid by the plaintiff, are in law, the debts which he supposed them in fact to be, the debts of B. P. Colburn and Mordecai, constituting, certainly, after the 20th November, 1841, the firm of B. P. Colburn & Co.

The motion for a new tidal is granted.

Wardlaw J., Frost J., Withers J., concurred.  