#### EMRIE *v.*GILBERT & CO.

A nonsuit will not be ordered because tiiere is an item in the plaintiff’s evidence, tending to prove’him a partner with the defendants, but that will be left to the jury.^Nor will the court rule out such evidence on the application of the plaintiff after it is in.

The transaction attending a settlement, When a receipt in full was gitfen, may be shown, and if there be a mere mistake in the amount, the receipt is not conclusive; but if by agreement a receipt be given for the sum in full, without mistake, though for less than due, it will be conclusive.

If the parties were partners when the suit was commenced, that ¡s a good defence under the general issue; but if the partnership had been closed and a balance found due the plaintiff, he may recover in assumpsit.

If an order has been given- to be accounted for when paid, proof of payment, or that it has availed the holder the same as money, is necessary to a recovery.

Where parties have transferred property for fraudulent purposes, the law will not aid them, but leave them with their fraudulent gains.

Assumpsit, common counts — plea, non assumpsit, with notice of setoff.

The plaintiff was sworn to his book account, and then called Bryan, a witness, who testified that the defendants were partners, and he understood from being in and out of the office the plaintiff was also one of the firm.

O. *Parish*

now moved for a nonsuit, because the plaintiff had shown he was a co-partner with the defendants.

*G. Swan*

objected, and moved to rale out Bryan’s evidence. He cited 5 O. JR. 517.

Wright, J.

The evidence is from the plaintiff’s- own, witness, and will not be ruled out. The motion for a nonsuit is overruled. The evidence is not conclusive of the fact of partnership — the jury can act upon it. Thetestimony is, that lie understood, from being in and out, that the plaintiff was a partner.

Much evidence’ was then introduced by the parties touching their accounts, and of the declarations of the parties at various times as to the partnership. The defence gave in evidence a receipt from the plaintiff in full of all demands, and gave evidence that when the Hemisphere was established the parties were in partnership; but the plaintiff became embarrassed, when they came to an understanding, and the receipt was given to keep up the appearance of a dissa*765lution, and to prevent the plaintiff’s creditors from attaching the ■property.

O. *Parish*

objected to proving the contents of the order without producing it.

Bryan,

Was recalled to explain the transaction, when the receipt was given, and the order passed.

Parish,

objected.

*Kirby,*contra,

stated his object to be to prove the whole transaction fraudulent, which could not avail the defendants, and to show that the receipt was not in fact given for money.

*‘Kirby*and *G. Swan,*for the plaintiff^

argued to the jury, and

*Gilbert*and O. *Parish,*contra.

. The plaintiff in rebutting, called a witness, in reference to an order on Kesling, transferred to the Cincinnati type foundery, and that Gilbert said he was to account to the plaintiff for it when paid, and that it had been put in suit.-

Wright, J.

The party is only proving the fact of the ^existence of the order and its transfer, to introduce the declarations of the defendant, that he was to account. He is not seeking 'to prove the contents of a writing kept back. Admitted.

Wright, J.

It is competent to correct a *mistake*in the receipt in the amount, and to show the real state of the transaction, and if it shall turn out, that upon controversy about the amount due, a receipt was given for a certain sum *in full*to settle, that will, conclude the parties. The evidence may be given.

Wright, J.

to the jury. If the plaintiff was in partnership with-the defendants when the suit was brought in the matter in controversy, he cannot recover. But if a dissolution took place before suit, and the partnership transactions were settled, and a balance found due the plaintiff, he may recover for such balance. And if the partnership transactions were fully settled, and satisfied either with money or by a negotiable, note, as expressed in the receipt, the plaintiff cannot recover, although the note remains unpaid, because he must resort to the note, which is an outstanding subsisting contract, and either sue on it, or produce and cancel it, if he rely upon the common declaration.

As to the order on Kerlin, if the evidence satisfies you that the defendants were only to account for that when collected, then the' plaintiff cannot recover on it until there is proof of its payment in whole or in part, or a discharge availing the defendant as money. If given without such condition, and it has availed the defendants as money, the plaintiff may recover without proof of payment.,'

*766As to the receipt. If it were given for the fraudulent purpose of covering up the property of the plaintiff, when that fact appears, neither party will be permitted to derive advantage from the use of the fraudulent instrument. Its notice may be shown, and if ascertained to be fraudulent, courts of justice will not restore either party to what he has parted with under the arrangement, but leave the parties just where they have placed themselves.

Verdict and judgment for the plaintiff.