Afterwards at the same terra a motion was made for a rehearing. Submitted October 30. Denied October 31.
OaMpbbll, J.A motion for.a rehearing being made on the ground that this case comes within some prior decisions, on which reliance was allowed on the common counts, we do not see their applicability. In those cases there was an assignment in fact to a third person, and not to a co-partner, and there was a joroper claim informing the defendant *587brought directly to his' notice. In this case there was no express assignment, and without notice of dissolution the defendant had a right to deal with either partner. The declaration practically alleged.a sole transaction, and the plaintiff- sued as an original creditor of Lewis, who would have been a proper co-plaintiff with Nobinson, but who could not sue as one of the firm and deprive Lewis'of any of his privileges as a debtor of the firm. When sued in this way we do not think he was bound to meet such a peculiar claim as that relied on in the testimony, and the circuit court could not substantially aid plaintiff to change the issue as made before the justice.
The motion is denied without costs.
The other Justices concurred.