Allstan's Adm'r. v. Contee's Ex'r.

-Johnson, J. delivered the opinion of the court. The declaration in this case is in the usual form, containing amongst others, a count on an account, and an insimul computassent„ The questions which arose were as to (he form of the action, and as to the merits of the subject in controversy. The facts, as the plaintiff offered evidence to prove, are that T. and A. Contee were indebted to J. C. and //. All-stan, under the firm of Alistan and Brothers. The partnership of Alistan and Brothers was dissolved on the 31st December 1803, and the next day J. and C. Alistan commenced business, and took upon themselves the collection and payment of the debts which were due from and to Alistan and Brothers. T. and A. Contee were acquainted with the dissolution , of the first, and commencement of the new partnership, and continued their dealings with J. and C. Alistan. In the account rendered by J. and C. Alistan to T. and A. Contee, long before the suit was brought, they are charged with a balance which toas due to Alistan and Brothers, as then due to J. and C. Alistan. And whether that item could be recovered in this action, is the subject of the first bill of exceptions. In this bill of exceptions the plaintiff offered evidence to prove, that T. and A. Contee, before the account of J. and C. Alistan was presented to them containing a charge for the above balance, had been furnished with an account by which that balance was ascertained •to have been due to Alistan and Brothers) and that with [357] this information on the part of T. and A. Cantee, they acknowledged the balance as charged to be due, and promised the payment thereof. On this evidence “the defendant prayed the court to direct the jury, that in forming their ■verdict, they are not to consider, as a charge against the defendant, any balance originally due to Alistan and BrothersWhich opinion and direction the court gave. The broad ground taken by the court below, that if the debt was originally due to Alistan and Brothers, the suit tould not be sustained, seems to rest on a principle, that the assignee óf a debt resting on an open account, could in Ho instance support an action in his own name to recovet such debt. The law on authority appears tobe otherwise. In Fenner vs. Meares, 2 W. Blk. Rep. 1269, the assignee of a bond, on a promise by the obligor to pay him the debt, sustained an action of assumpsit on the promise. The principle, that in certain instances the assignees of debts may sustain actions in their own names, is also established in Israel vs. Douglas, 1 H. Blk. Rep. 239. Surtees vs. Hubbard. 4 Esp. Rep. 205. And in 2 Peake’s Evid. 240, 241, the action was sustained in the name of two partners to ré* cover a debt which was originally due to one. If then a suit can be sustained in the name of two to recover a debt originally due to one partner, surely no reason exists why tivo partners should not, in then own names, recover a debt which Was due to three, when one of them has transferred to the others his interest, and when the debtor, with the knowledge of the fact, acknowledges the debt to be due, and promises them the payment. To the debtor it is of no moment in what right he is compelled to pay the debt provided he is not liable again for the money in a different right; but, as the payment to the assignee of an account or bond, would exonerate the debtor from the original creditor, so will a judgment on the assigned claim also discharge him from the original cause of action, whether the recovery is founded on a formal count stating the original debt, assignment and promise, or on an account disclosing the nature of the original transaction. On the second bill of exceptions the court refused to give the opinion as prayed on the part of the plaintiff, that “if the jury find from the evidence that./. and C. Alistan had accounted with the firm of Alistan and Brothers for the sura due from T. and A. Cantee, and that they, with a knowledge thereof, and that J. and C. Alistan settled with Ali-stan and Brothers, promised to pay the amount to ./. and C. Alistan, then the action for that item was sustainable.M The court below refused to grant the prayer, not because the law was against the application, but because the court were of opinion that there was no evidence of such facts. In this opinion we think the court were mistaken; for the various accounts disclosing the whole transaction, united with the repeated promises to pay, together with the parol evidence admitting a large sum to be daa, were cimun-stances proper to be left to the jury. [358] The same considerations which induced the belief that court below erred in the second bill of exceptions, are equally applicable to the third. The fourth bill of exceptions, in which the jury were precluded by the opinion of the court from applying the payments made by T. and Jl. Cantee to discharge the item in the account of J. and C. Mistan, which was due to Mistan and Brothers, is not very material to the merits of the cause; for as the plaintiff has a right to recover for that item, it is unimportant how the credits are applied. But this court are of opinion, that as the claim of Mistan and Brothers composed a part of the claim of J. and 6. Jlllstan, and was prior to the debt due to ,/. and C. Jlllstan, without any special direction the payments ought to have been applied to that claim, more especially as the fund» from whence the money was received, was forwarded to Mistan and Brothers before the new partnership commenced, and there is nothing in the account, on which the suit is brought, to preclude sucli application. These remarks are equally applicable to the fifth and sixth bills of exceptions, except in the last, the defendant’s defence, and the opinion of the court, would be sustained if the act of limitations barred the action. But this court are of opinion that the evidence takes the case out of the act of limitations. This court are of opinion, that the court below were mistaken in the'opinions given in all the bills of exceptions* JUDGMENT REVERSED, AND PROCEDENDO AWARDED.