#### *A. R. Main*vs. *W. Howland.*

Plaintiff and defendant liad been copartners : they dissolved and had a settlement intended to be in full: no account was stated and signed, but the firm being in debt each agreed to give his individual note to the creditor for a certain portion of the debt: the notes were given and afterwards paid: — on bill filed, *held*that the settlement was a bar to any further account, there being no charge of' fraud or mistake.

*Before*DeSaussure, Ch., *at*Charleston, *April,*1831.

DeSaussure, Ch. The object of the bill is that an account may be taken of the copartnership dealings and transactions between the complainant and defendant, in various copartner-ships (which are named,) from the commencement thereof, and also an account of the monies received by the complainant and défendant in regard thereto, and of the stock in trade and debts due to the firms of Main &• Co., and Howland & Co., respectively, at the dissolution of the copartnership, and that defendant may be decreed to pay the complainant the amount stated *353to be due him by exhibit A. To the bill of complaint, .the defendant pleaded in part, and answered in part. The plea is in bar .to the demand of an "account, on the ground that subsequent to the dissolution of the copartnership, to wit: on the 27th June, 1829, the complainant and defendant accounted to-gether for the, transactions' of the said copartnership, and an account stated was drawn ■ out in writing, examined, discussed and mutually agreed to. by and between the said complainant and defendant. That on the said accounting and final settlement, it appeared.that the amount of the debts due by the said concern was the sum, of $2,896 98-100 to Howland, Ward & Spring. And that after the claims and counter-claims of the complainant and defendant,, as between themseíves, had been satisfactorily adjusted and the 'account' stated, it appeared that of the above sum the complainant was bound to pay $2,012 38-100, and the defendant the sum of $884 60-100: and, on the same day, a note was given in the name of the firm, to Howland, Ward & Spring-, for the above sum of $2,896 98-100, and the'several notes of the complainant for $2,012 3^-100, and of the defendant for $884 60-100, of the same .date in favor of Howland, Ward & Spring, were given to them, and an endorsement entered ’on the original note of $2,896 98-100 — that it was held only as a collateral security for the payment of the several individual notes given as aforesaid, which individual notes have been long"since paid; defendant relies on this settlement as final and conclusive, and' insists upon it is a bar to complainant’s demand. The defendant answers, to the rest of the bill. " - ■ '

At the hearing,- the counsel for the defendant offered evidence to prove the plea. This was objected to by the counsel for the complainant, on the ground that the plea was insufficient, because it does not state .the balance between the parties-as it ought to do except argumentatively. This question was argued by the counsel on both sides. The Court determined to receive the evidence. . ’

William Procter, Benjamin Howland and Anthony Willis, *354were examined as witnesses, and gave full and particular evidence as to the transactions of the parties, and the nature and circumstances of the settlement which took place between the complainants and defendants in June, 1829. They state it to have been full and particular, and final and conclusive. So understood by both parties; repeatedly declared; acted upon and notes given by them for the balances due by each of them respectively.

A very able and elaborate argument was then made by the counsel upon the sufficiency of the plea in. bar supported by the evidence. I will not follow the counsel through the positions taken in their argument, but merely state the result. It appears to me that the *examination*of the transactions of the parties, and of the books of the concern, to which both parties had-unlimited access, was full and satisfactory ; and that the settlement was made with the full knowledge of the affairs by both parties, and was intended to be, and actually was, final and conclusive by and between the parties. That it was a losing concern, and the only question was how much was due by them to others, and how and by whom to be paid. That it was ascertained to the entire conviction of both, that the copartnership was indebted to Howland, Ward & Spring the sum of $2,896 98-100, of which Main was bound to pay $2,012 38-100, and Howland $884 60-100, and that each of them gave’ his separate note for the respective sums, which have since been paid and the business ended.

It is true the formalities of a regular settlement were *not*gone through, but, in substance, it was a full settlement, and said to be in the usual mode of settling among merchants in' Charleston; and it strikes me that a settlement between copart-ners, each of whom had complete knowledge of the transactions and access to the books, need not have all the formalities of a settlement between strangers. The notes stating the balances to be paid by each were signed, and this substantially was a signing of the accounts. For it was by an examination of the accounts alone that the results could have been obtained *355how much each partner was to pay of the debt due by the concern, and this settlement was acknowledged repeatedly by both parties to be correct, and acquiesced in and acted upon by both, for each paid his note for the balance decided to be due by him, and for which he gave his note after several renewals thereof. The bill does not charge fraud or surprise in obtaining the settlement, and there is not a tittle of such proof, nor is there any error on the face of the accounts shewn. I am satisfied that it was a fair and just settlement, and I cannot consent to open it on a mere technical. objection, notwithstanding the very forcible- arguments of the Attorney-General on this point. It'appears to me that it would be merely to open and prolong litigation to no useful purpose.

It is, therefore, ordered-and:.decreed, that, the plea, in bar be sustained and the bill dismissed.

The complainant appealed on the grounds :

1. Because the answer overruled the plea.

*.*2. Because there was no proof of an *account stated*sufficient to preclude further inquiry.

Legare, for appellant.

Dunkin, *Grimke,*for defendant.

The opinion of the Court was delivered by

JohnsoN, J.

, The rule very clearly is, that if the defendant plead and answer to the same matter in the complainant’s bill, the answer overrules the plea, or, in other words, the plea stands as a part of the answer. Cooper Eq. PI. 229; Beam. PI. in Eq. 37. But, under the circumstances of this case, I cannot perceive what difference it will make, whether the case is determined on the assumption that the plea is overruled by the answer, or whether it" is entitled to'stand as part of the answer. In either view the question presented is, whether the plaintiff is concluded by having stated an account with- the defendant; for the determination of that question against him *356is a bar to the account, whether it come under the plea or the answer.

The signing of an account stated, it is conceded, is a bar to the claim of either party to a subsequent account, although the party complaining may, upon the ground of mistake or fraud, be permitted to come in and surcharge and falsify any or all of the items; and the rule proceeds on the principle, that signing the account is evidence of the assent of the parties to the correctness of all the items. It is evidence of their admission that it was true, and to repel that there must be proof of fraud or mistake. Upon this principle it has been held that the signing of a security on the foot of an account stated, although the account itself is not signed, will bar an account.

And, I apprehend, that upon the same principle, proof of any other act, clearly and unequivocally showing an account between the parties of all matters between them, and regarded and considered by them as a final settlement, would also be cqpsidered as a bar. Suppose, for example, that *these*parties •had come to a settlement, professedly, of all their accounts, and divided their funds or their responsibilities, and instead of signing an account stated, or a security on the foot of it, they had mutually agreed to destroy all the books and vouchers from which the accounts were made up — surely, upon the principle, that would also bar a subsequent account. How are the facts here ? _ The witnesses, *Wm.*Procter and Benj. Howland, both men of business and eminently qualified for the office, state unequivocally that they were called upon by these parties to make a full and final settlement between them, and that upon a thorough examination of all their accounts with their assistance and in their presence, they made a settlement, the result of which is exhibited in the summary produced on the trial, and that they understood both were satisfied with it, and upon the faith and in pursuance of it, each gave their notes for the sums due by them, according to this settlement, to their creditors; and the defendant states in his answer, that, in the belief *357that this was a final settlement, he neglected to preserve the books necessary to enable him to make another account.

Now it does appear to me, that their giving their separate notes to the creditors, is in exact conformity to the rule which regards the signing of a security on the foot of an account as equivalent to the signing of the account itself. There can be no difference in principle between a security given to a stranger, founded on the result of an account, and one given to the party. The one is as much the evidence of assent to the account as the other.

Wrong may have been done to the complainant in the settlement, either by mistake or the fraud of the defendant, but to entitle him to relief, it was incumbent on him, according to the rules of law and the practice of the Court, to show it. ,He has failed to do so, and his bill was, therefore, properly dismissed.

The appeal is dismissed and the decree of the Circuit Court affirmed.

O’Neall, J., concurred.

*Decree affirmed.*