Burroughs's Appeal

[266] The opinion of the court was delivered by Lewis, 0. J. A limited partnership was carried on in the name of James I. Boswell. The assets of the firm have been assigned to Bullitt & Eairthorne, for the benefit of creditors, and the court below, after a report from an auditor, rejected the claim of H. N. Burroughs, because it was not a claim on the partnership. The claim of Mr. Burroughs is in the name of James I. Boswell. It does not appear from the face of the papers whether the debt was a partnership or an individual transaction. But there was evidence aliunde to justify the auditor in finding that it was not a claim on the partnership. This renders it unnecessary to decide how the presumption would have stood had no such evidence existed. The case of Mifflin v. Smith, 17 Ser. & R. 165, was a decision at Nisi Prius. The motion for a new trial was refused by the court in banc, but no opinion was given; so that we are left in some uncertainty relative to the reasons for refusing the motion, or how far the court intended to sanction the rule laid down by the judge at Nisi Prius, that where a partnership is carried on in the name of an individual all notes given in his name are prima facie partnership debts. This decision is in conflict with authorities of weight: Bank v. Winship, 5 Pick. 11; Ethridge v. Barney, 9 Pick. 274; Bank v. Binney, 5 Mason 183; Story on Partnership, § 139; Collyer 226; 1 Casey 226. Without deciding the question, it must be apparent that very slight evidence would be sufficient to put the holder, especially if a party to the original transaction, to the proof that it was intended and understood as a partnership act, and was within the scope of the partnership business. The auditor, acting on this principle, rejected the claim of Lewis & Co. We cannot perceive, in his proceeding, any such flagrant error as could justify us in setting aside his decision on these questions of fact. Decree affirmed.