#### Nathan Haskell *et al. versus*Henry Adams.

Where several of the partners in a company consisting of a number of persons, at a meeting of the company gave their note, by discounting which, money was raised with which the debts of the company were paid ; it was *held,*that the partners who gave the note could not maintain *assumpsit*against another partner for a contribution for his proportion of the note, even after the company had ceased to do business, no settlement between the partners having been made, and debts still remaining due from the company.

*•Assumpsit*to recover 41 dollars paid by the plaintiffs for the defendant’s benefit.

At the trial in the Court of Common Pleas, before *¡Strong*J., the plaintiffs offered to prove, that in *1825*the plaintiffs and divers other persons associated together for the purpose of running a line of stagecoaches between Boston and Greenfield; that each associate then paid 40 dollars a share to purchase horses, carriages, &c.; that the company held meetings at which votes respecting the partnership affairs were passed, which were recorded in a book kept for the purpose, and by which it was supposed that all the partners were bound ; that at a meeting of the company in January, 1827, it was voted that William Clark, the agent of the company, be directed to borrow 3000 dollars to pay the debts of the company, which was then deeply in debt; that the agent and others present thinking that the loan could not be obtained on the credit of the company, it was then proposed that a note should be made to the agent and signed by individuals of the company, and accordingly a note for 3000 dollars payable in one year with interest to Clark, was signed by the plaintiffs ; that Clark had the note discounted and applied the money to the payment of the company debts ; that the whole number of shares in the company was eighty, of which the defendant owned one from the time of its formation until it ceased to act; that on Novem her 5, 1827, the company disposed of its property and aban *63doned the business for which it was formed. The plaintiffs admitted that no adjustment of the partnership affairs had ever been made between the partners, and that the company was still in„debt.

*Oct. 4th*

*April term*1828.

*Strong*J.

being of opinion that the evidence was not sufficient to support the action, ordered a nonsuit. To this opinion and order the plaintiffs filed their exceptions.

*Bigelow*and *Brooks,*for the plaintiffs, admitted the principle, that one partner could not generally sue another before a settlement of the partnership accounts ; but they said that the rule had not been enforced so strictly in this country as it was in England; and contended that even in England an action would probably lie where there was an express promise to pay, and that the circumstances of this case were equivalent to an express promise. There was a tacit request, at the meeting of the company, to the plaintiffs to give their note in order to raise the money. They cited *Venning*v. *Leckie,*13 East, 7 ; 3 Stark. Ev. 1082. The partnership was dissolved when the business was stopped and property sold.

*Newton,*for the defendant. No promise on the part of the defendant, either express or implied, can be found in this case. It does not even appear that he was present at the meeting when the note was given. The only promise implied is to settle the concerns of the company. No promise by one copartner to another can be inferred from the circumstance of the latter’s having paid more than his proportion of the partnership debts. He cited *Wilby*v. *Phinney,*15 Mass. R. 116 ; [Rand’s ed. 121, note a;] Montag. on Partn. 114, 115, *et seq.*

*Per Curiam.*

This being a case of a partnership, the concerns of which are not closed, and there being no express promise to pay, the judgment of the Court of Common Pleas, that the action cannot be maintained, was right, and is affirmed.1

1

 See *Fanning*v. Chadwick, 3 Pick. (2nd ed.) 423, note 1, and 424, note 1; *Clark*v. *Dibble,*16 Wendell, 603; *Williams*v. *Henshaw,*11 Pick. 79, and 12 Pick. 378; *Marshall*v. *Winslow,*2 Fairfield, 58.