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VAN NESS Court below demurred specially, and the Defendant

joined in demurrer. FORREST.

On argument, the demurrers except to the third plea, were overruled, and the pleas sustained as to the 2d, 3d and 4th counts, but the demurrers were sustained as to the 1st and 5th counts of the declaration. The demurrer was also sustained as to the 3d plea, which was adjudged bad as to all the counts.

On the trial of the issues, Van Ness objected to the evidence offered by the Plaintiff below, to support the first count, and his objection being overruled, excepted to the opinion of the Court. This exception brings on the whole question made by the pleas on the point, that the goods for which the note was given, were partnership goods belonging to a company of which both the Plaintiff and Defendant were members.

The jury found a verdict for the Plaintiff below, on which judgment was rendered, and the cause is brought into this Court by writ of error.

JONES, for the Plaintiff in error, contended, 1st, That this action is not sustainable, it being brought by one partner against another. And 2d, That the separate note of Crossfield was a discharge of the original debt due from Crossfield and Van Ness.

1. An action does not lie by one partner against another, unless for a balance stated and acknowledged upon settlement of the partnership accounts.

The suit was as much for the use of Van Ness, as of any other of the stockholders. The Plaintiff was only a conventional president. The stockholders must all join in the action, and then Van Ness would be both Plaintiff and Defendant.

2. The plea states, that the Plaintiff agreed to take the separate note of Crossfield in full satisfaction for the goods sold and delivered. This was decided by this Court to be a good defence in the case of Sheehy v. Mandeville. 6. Cranch, 253.

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It is true that one partner cannot sue another on an FORREST. implied promise, but he may upon an express promise. 2. T. R. 479, Foster v. Allanson. 1. East. 20, Wright v. Hunter. After verdict, the promise shall be taken to be express-4. Cranch, 224, Grant v. Nailor.

The Defendant cannot set up a trust to defeat tho
Plaintiffs legal right to recover.

If the trustee of a
feme sole should bring an action against the husband, he
could not defend himself by pleading that the money if
recovered, would be for the use of is wife, and that the
wife could not sue him at law. The Defendant cannot
be permitted to look behind the legal Plaintiff for the
purpose of setting up an inequitable defence. If this
doctrine were to prevail, private banking companies
could not recover money lent to stockholders.

The causes of demurrer assigned are, that the plea amounts to the general issue and that the plea neither admits nor denies the promise laid in the declaration.

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Jones, in reply.

The cases cited do not take this case out of the general principle, that one partner cannot sue another.

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This is not an express promise of the Defendant. It is only by implication that he is charged. It is a promise that the law raises upon the fact, that he is a partner with him who expressly promised. In all the money counts, the promise is implied.

As to the objection that the plea amounts to the gene-
ral issue—that point is settled also in the case of Sheehy
0. Mandeville.
MARSHALL, Ch. J. after stating the case, delivered

.
the opinion of the Court as follows:

It is contended by the Plaintiff in error,

1st. That this action is not sustainable, it beivg
brought by one partner against another.
VOL. VIII.

5

VAN NESS 2d. That the separate note of Crossfield discharges

the original debt, due from Crossfield and Van Ness. FORREST.

As the first error assigned by the Plaintiff, is, if it be really an error, apparent on the bill of exceptions, as well as in the pleas, it is not necessary to examine the formality of the pleas respecting it.

It is alleged that, at law, one partner can sue another, on a claim growing out of the partnership, in no other case than for a general balance on a stated account.

The terms in which this proposition has been laid down are perhaps too general.

In the case at bar, the suit is instituted on a promis. sory note given, not to the company, but to Joseph Forrest, president of the company. Although the original cause of action does not merge in this note, yet a suit is clearly sustainable on the nute itself. Such suit can be brought only in the name of Joseph Forrest. It can no more be brought in the name of the company, than if it had been given to a person, not a member, for the benefit of the company. The legal title is in Joseph Forrest, who recovers the money, in his own name, as a trustee for the company. Upon the record, and technically speaking, he is the sole Plaintist, and the Court can perceive no reasonable or legal objection to his sustaining an action on the note. The principle that a company cannot sue its members, does not apply to the case; nor does the principle, that a partner cannot sue a partner on a partnership transaction, apply to any case where a note in writing is given for money, not to a firm, but to an individual member.

The third plea alleges, that the Plaintiff in the Court below agreed to accept the separate promissory note of Crossfield in payment, and that, in execution of this agreement, Crossfield made the note in the declaration mentioned, which was accepted in payment of the several assumptions stated in the declaration.

Now the note, in the declaration mentioned, is a joint note, so that this plea in one place alleges it to be a joint note, and in another place to be a several note.

3

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It becomes unnecessary to inquire into the effect of VAN NESS
this repugnancy, if it be one, because the plea, if to be
understood as averring that the note, in the declaration FORREST.
mentioned, is a several and not a joint note, would
amount to the general issue. The plea is no more, to

he first count, than non assumpsit. For if the note was
not the note of Van Ness, he had not made the assump-
sit stated in the first count. This is ill upon a special
demurrer, when assigned as cause of demurrer.

The Plaintiff in error supposes the case of Sheehy v.
Mandeville & Jameson, reported in 6th Crunch, 253, to
be a case in his favor, on this point. The Court thinks
otherwise. In that case, as in this, a note was given by
one partner for a debt contracted by the firm. In that
case, as in this, one count in the declaration was special,
on the note, stating it to be a joint note, and other counts
were general, on the original transactions. The De-
fendant, whose name was not on the note, stated it to
have been received in discharge of the open account.
The Court decided, that the plea was good, not in bar
of the special count on the note itself, but in bar of the
general counts, for goods sold and delivered.

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Upon the special count, the Court was in favor of the Plaintiff below, who was also Plaintiff in error, and the judgment of the Circuit Court, which had been against him, was reversed. The case of Sheehy v. Mandeville & Jameson, then, is not in favor of the Plaintiff in error, so far as his third plea applies to the first count in this declaration.

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This Court is of opinion, that there is no error in the judgment of the Circuit Court either in sustaining the demurrers to the several pleas filed in that Court to the first count in the declaration, or in admitting the note, in the declaration mentioned, to be given in evidence to the jury, on the trial of the issue of fact. This opinion renders it unnecessary to examine the decision of the Circuit Court, as it respects the pleas to the other counts, since, should their decision respecting the pleas to those counts even be deemed erroneous, their judgment will stand.

Judgment affirmed with costs and damages, at the rate of 6 per cent. per annum, and costs.

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1814.

THE BANK OF ALEXANDRIA v. HERBERT.

Feb.

14th.

Absent.... WASHINGTON, J.

ol,

could not.

The trustee of an insolvent

THIS was an appeal from the Circuit Court for debtor in the the district of Columbia, sitting in chancery, at Alexandistrict of Co

dria. lumbia, represents the creditors of the in:

A bill in chancery was brought by W. Herbert, junisolvent, & can take advantage

trustee for the creditors of John Potts, an insolvent of a defect in debtor under the act of congress for the relief of insol. a mortgage, of which the in

vent debtors within the district of Columbia, against solvent himself tie bank of Alexandria, to recover the proceeds of a

tract of land, the property of Potts, whiih had been sold by consent and the money deposited in the bank. Thuis land had been conveyed by Potts to Ludwell Lee in trust to secure the payment of money b rrowed of the bank by Potts, but the deed of mortgage had not been recorded within the time limited by the lure of Virginia, which governs this case, and which declares that all deeds of mortgage whatsoever, although good between the parties, shall be void as to creditors and subsequent purchasers without notice, unless they be recorded within eight months after their date.

Swann, for the Appellants.

Although the deed to Lee would be void as to a subsequent purchaser for valuable consideration without notice, yet it is not void as to Herbert, who is the trustee of Potts under the insolvent law for the district of Columbia-(Laws U. S. vol. 6, p. 294.) A trustee under that law is like an assignee under a commission of bankruptcy in England. He stands merely in the place of the insolvent. He takes the estate as the insolvent held it. He is bound by the same equity, and liable to the same obligations. Cooper's B. L. 128. 307, 2 Vez. 633. 1 Atk. 94, 162. 2 Vern. 564, 609, Taylor 0. Wheeler. 1 Br. C. C. 269. Russel v. Russel. The deed to Lee being good against Potts, is equally valid against Herbert.

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