pronounced the opinion of the Court.
If the defendant ever had any claim against the firm of Richard P. Hart & Co. for his present demand of $61, it was before French became a member of the firm. Had he commenced an action for the same, he must have sued Richard alone, ox Richard and Philip, Jr. He could not have recovered against Hart and
This demand was so far from being a debt against French, that any attempt of Hart and Tomlinson to make it a debt against French, by putting it into a note or otherwise, would have been a fraud upon French, and unavailing in law and equity. When French became a partner on the 1st ol April, the deal of the old firm with this defendant was on the books of the old firm, which were balanced on the 29th of the same month. After this, if French saw those books at all (and it seems he had no interest to see them) he must have seen the account balanced. The defendant was there in the fall, and learnt how the books stood, and says he objected to the allowance of the discount, but does not say that French then knew of his objections, nor that he obtained any assurance of relief from any persons ; nor, in fact, that he sought any. The next winter, after all this, the account now in suit was begun. We discover no reason why French should be considered a debtor to the’tiefendant in this matter. If he was no debtor,and liable to no suit for the same, he is no more liable to have it come in upon the rendition of accounts; which, to be allowed, must be mutual.
But, it is suggested, that this demand of the defendant, being against Richard P. Hart, and French being dead, and Hart pursuing this action as survivor, the demands have become mutual. The facts do not support the reasoning. It is very probable, and indeed almost certain, that the demand of the defendant is against Richard P. Hart and Philip Hart, Jr. They constituted the firm when the draft was received. That, prima facie, shows them jointly accountable for the avails. And nothing appears in the case to alter that liability. Hence it does not appear that the defendant could pursue Richard P. Hart as his sole debtor. If
The judgment of the County Court is affirmed;