latter allegation.-Held, that the
bailor could recover the balance

of the price agreed. Foster V.
Magee.

182

solution and a settlement of the
firm accounts between the mem
bers thereof, except as to an out-
standing partnership claim, col-
lected the claim, and paid it over,
in different amounts to two of the
partners, there being five alto-
gether. One of the partners, who
had received none of the moneys,
sued all the rest for an accounting,
claiming to recover his proportion
of the sums so paid; the referee,
without ascertaining the amount
which each partner had received,
directed judgment against them
all as claimed.-Held, that there
was no joint liability of the de-
fendants, but that they were liable
severally for the plaintiff's propor-
tion of the sum received by them
respectively, and that such sums
being unascertained the judgment
was erroneous and must be wholly
reversed. Rhiner v. Sweet. 386

Sce ACCOUNT STATED.
APPEAL, 2.

CORPORATION, 1, 2, 3.
PAYMENT, 1.
PLEADING, 2, 3.

PARTNERSHIP.

PAUPER.

1. After notice has been given to a
firm creditor by cach of the part-
ners, that one of them has with-
drawn, and that the other will
continue the business, and has
agreed to pay individually the firm
debts, transactions between the
creditor and continuing partner
must be considered with a refer- 2.
ence to the new relations of prin-
cipal and surety existing between
the late partners, in determining the
question whether any such trans-
action amounts in favor of the re-
tired partner to a payment of the
firm debt. Colgrove v. Tullman. 97

2. Where a member of a partner-
ship firm advances money for its
business beyond what is required
of him by the copartnership
agreement, he is entitled to inte-
rest on such advances. Lloyd v.
Carrier.

364

3.

4.

439

PAYMENT.

1. In June, 1864, T. sold out his in-
terest in the firm of B. & T. to B.,
who assumed payment of the firm
debts; C., the holder of a firm note,
was duly notified of the dissolu-
tion and assumption, and was re-
quested by T. to collect the note at
once; payments on the note were
made by B., and when, in June,
1865, C. formally demanded pay-
ment in full, for the purpose, as he
said, of investing in United States
bonds, B., who held bonds more
than sufficient to balance the note,
offered to give C. instead of money,
a receipt for an equal amount of
bonds; the balance due on the
note and its equivalent in bonds,
were adjusted between them, and
B. gave C. a receipt, stating that
he had received from C. the bonds,
to be held by him for safe keeping,
and to be returned to C. on sur-
render of receipt, which was duly
stamped and delivered; the note
was not, in fact, surrendered by
C., and the bonds remained in pos-
session of B., who made a further
payment on the note, and in July,
1866, made a general assignment
for the benefit of creditors; C. then
demanded possession of the bonds,
but did not get them, and subse-
quently, for the first time, demand-
ed payment of the note from T.,
and on refusal sued B. & T. on the
note; B. had told T. that the note
was paid, but on the trial before a
referee there was a conflict as to
whether C. had promised to sur-
render the note and hold the re-
ceipt in its stead. On appeal by
T. from a judgment for the plain-
tiff-Held, reversing the referee's
finding of fact, that the receipt for
the stock was taken in payment of
the note, and the judgment against
the appellant could not be sus-
tained. Colgrote v. Tallman.

See EVIDENCE, 6.

LIMITATIONS, STATUTE OF, 1.

97

4.

5.

The plaintiff sued the represent-
ative of a deceased judgment debt-
or, and the surviving co-judgment
debtor, upon a judgment in usual
form, recovered nearly twenty
years previously on contract
against the defendants therein,
alleging execution returned un-
satisfied against the said defen lants
and the insolvency of the survivor.
-Held, on demurrer, for want of a
cause of action, that the complaint
was good. Stahl v. Stahl.
CO

It is sufficient, in such an action,
if the complaint states the survi-
vor's insolvency, without averring
the issuing and return of an exe-
cution unsatisfied against him. Id.

POLICY OF INSURANCE, 1.

PAYMENT OF FREIGHT.

See BILL OF LADING.

wrongful taking and carrying
away, and conversion of the
plaintiff's timber from certain de-
scribed premises, and the answer
denied the plaintiff's ownership
of the locus in quo, and evidence
had been admitted without objec-

8. Neither section 430 nor section
432 of the Code, confers upon the
attorney-general, the power to
prosecute an action in the name of
the people, against commissioners
appointed under an act of the legis-
lature, to restrain them from issu-
ing, etc., town bonds, provided for
by such act, without performance
of the conditions precedent re-
quired thereby; nor has he such
power at common law. People v.
Miner.
396

9. After trial of an action by the
court, the successful party, unless
by express direction or special
agreement, is not required to sub-
mit a draft of the judgment, be-
fore entry thereof, to the adverse
party, or have it settled upon no-
tice. People v. Church. 459

10. Semble, That upon a motion to
set aside, or modify a judgment,
on the ground that no notice was
given of its settlement, its entry,
in some material particular, other-
wise than in accordance with the
findings of law, or fact, must be
pointed out.

Id.

11. A motion to set aside a judg
ment, is not the proper remedy
for an omission to find a fact, sup-
ported by the evidence.
Id.

12. Semble, That if the fact is estab-
lished by uncontroverted evidence,
the remedy is by appeal.
Id.

13. And that when the evidence up-
on the fact is conflicting, the course
is to deliver to the judge, when the
case is presented for settlement, a
request to find the desired facts
and conclusions of law, and that
exception lies for his refusal. Id.

14. Where the decision after a trial
by the court, provided for a de-
cree, among other things, direct-
ing a delivery by the receiver ap-
pointed in the action, of the prop-
erty in controversy, to certain of
the defendants, and the decree had
been entered pursuant to the de-
cision,-Held, that assuming the
judgment to be still incomplete, so
that no appeal could be taken
thereon, and that so much of the
decree as directed such delivery |

16. After the entry of judgment in
an action by the people, declaring
the rights of certain defendants to
the exclusion of others, to hold
and exercise the office of directors
of a railroad corporation, vacating
a receivership, and directing de-
livery of the property of the cor-
poration to the directors declared
to be entitled, it seems an order
staying" all proceedings upon the
judgment until the entry of an or-
der on a motion to set aside the
judgment," does not stay proceed-
ings to obtain possession from the
receiver of the keys of the cor-
poration safe and property.

Id.