#### WESTCOTT *v.*PRICE.

Plaintiff cannot sue eí copartner to a bill — discharge of one of several acceptors — bill of exchange.

If a plaintiff was a member of a firm on whose acceptance he sues* he cannot maintain the action.

Drafts may be drawn on a firm by name in anticipation of a partnership, and if accepted after one is formed, the acceptance binds the partnership. -

A discharge by the holder of a bill of one of several copartneis accepting, is a dischargs of the others.

Assumpsit, on two acceptances, for ‡725 44, of J. Oliphant &Co. endorsed to the plaintiff, by S. Alden, the payee, one dated the 24th February, and the other the 18th March, 1829. Plea non assumpsit.

It was proven, that prior to March, 1829, the plaintiff and defendant, with one Oliphant, were in copartnership in a shoe establishment in Philadelphia, under the firm of /. *Wescott Sf Co.*and in a house in Cincinnati under the name of *Wescott Co.*About the 16th of March, 1829, Wescott withdrew from the firm, and a new one was established, under the name of *J. Oliphant Co.*composed of Oliphant and Price, the defendant, which was advertised in the Gazette. The defence set up, was, that the drafts were for the company debts, while the plaintiff was a member of the company, and that the plaintiff, when they were endorsed to him for collection, gave one hundred dollars to *Alden,*the then holder, on condition that he should be discharged from liability on account of the old company debt, under an agreement on the part of Alden, to look only to J. Oliphant & Oo. for the debt.

*Storer,*for the plaintiff.

Wright, J.

to the jury. This suit is to recover the principal and interest of two acceptances of *J.*Oliphant & Co. If you are satisfied that the defendant was a member of that firm, at the time of the acceptances, the plaintiff is entitled to recover, unless some of the *221matters set up in the defence are made out. If you think it established, that he was a partner, you will inquire into the defence,which is, 1st. That the plaintiff was a member of the firm of J.Oliphant & Co. and being jointly liable with his copartners, cannot-sue them at law; and, 2d. That *Alden,*the holder of the draft, discharged the plaintiff, on receiving a hundred dollars, which discharge enures to the benefit of all the partners, including the defendant. If the plaintiff was a member of the firm when the drafts were accepted, your verdict should be for the defendant; if not, for the plaintiff. It is in proof, that the firm of *J. Oliphant Co.*never existed, until after Wescott left the concern; and that he never was a member of *that*firm. The dissolution of the old firm, and the formation of the new one, was on the 16th March, 1829. One of the drafts is dated the 24th February, in New York, nearly a month before that time. The question is, when the drafts were *accepted?*If *after*the dissolution, then they are the obligations of the new firm. They may have been drawn upon the new firm, in anticipation of its formation. Of the time of the acceptance, you are to judge, under all the circumstances. If the acceptances were by the ' *new*firm, and the plaintiff afterwards paid one hundred dollars to be discharged from his real or supposed ultimate liability, that would not affect the claim. But if the acceptance was by the *old*firm, the plaintiff was liable as one of the acceptors, and a discharge of *him*would discharge the whole.

Verdict and judgment for the plaintiff, $>895 88.