[Levy v. Arredondo et al.]

cause, which should have been annexed by the complainant to his bill; and which the superior court of, the eastern district of Florida might have called for before it proceeded to make any decree in the cause; it is determined by this Court, without giving any opinion upon the decision of the court of appeals of Florida in the cause, to reverse that decree, and also to reverse the decree of the superior court of East Florida, in the cause upon which it was carried up by appeal to the court of appeals: and both of the same are hereby reversed: and the Court remands the cause for further proceedings; making it obligatory upon the complainant to produce, on the trial, the contracts of the 22d January, 1822, and that of the 13th July, 1824, or satisfactorily to account for the same: with liberty to the parties in the cause to use, on such trial, the evidence already taken, and to adduce such other evidence as either may offer in proof of their respective equities; and to amend their bills and answers: including any answer which the defendant, Entralgo, may offer to make to the complainant's bill; upon such terms as the court below may impose, upon any application made by Entralgo or his counsel to set aside the order, pro confesso, against him.

This cause came on to be heard on the transcript of the record from the court of appeals for the territory of Florida, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the contract of 22d January, 1822, between the complainant and F. M. Arredondo, Jr., and also the contract of 13th July, 1824, between the complainant and F. M. Arredondo, from the manner in which they are set out in the bill of complainant and replied to by the defendant, are such exhibits as ought to have been annexed by the complainant to his bill in the superior court for the district of East Florida, and ought to have been proved as evidence in the cause, or the non-production thereof duly accounted for, and secondary evidence of the contents thereof, as far as practicable, given, before the superior court of the territory of Florida proceeded to render any decree in the premises: that for this defect and imperfection in the proceedings, this Court have not sufficient materials. before them whereon to found any final and satisfactory decree; and that justice requires that the cause should be opened in the court below for further proofs, as well in regard to the documents aforesaid, as in regard to any other evidence which may further establish the merits of the case on either side. It is, therefore, ordered, adjudged

[Levy v. Arredondo et al.]

and decreed by this Court, that the decree of the said court of appeals of the territory of Florida, and also the decree of the superior court of the said territory be, and they are hereby reversed and annulled. And it is further ordered, adjudged and decreed by this Court, that the cause be remanded to the said court of appeals, with directions to allow the pleadings in the said cause to be amended by the parties; the documents aforesaid, or the contents thereof, to be duly authenticated and proved; and such other proceedings in the cause to be had as to justice and equity shall appertain. And the said court of appeals is either to cause such further proceedings aforesaid to be had before itself, or the cause remanded to the said superior court for the same purposes, as the one or the other course may be proper, or may be required by the constitution of the said courts, and the laws and practice appertaining thereto. And it is also decreed that each party pay his own costs in this Court.

Mr. Justice BALDWIN dissented.

N. ROGERS & SONS, PLAINTIFFS IN ERROR V. JAMES BATCHELOR AND OTHERS, ADMINISTRATORS OF ABEL H. BUCKHOLTS, DECEASED.

An action of debt was instituted in the district court of the United States, on an obligation under the hands and seals of two persons. The action was against one of the parties to the instrument. The laws of Mississippi allow an action on such an instrument to be maintained against one of the parties only. The funds of a partnership cannot be rightfully applied by one of the partners to the discharge of his own separate pre-existing debts, without the express or implied assent of the other parties; and it makes no difference, in such a case, that the separate creditor had no knowledge at the time of the fact of the fund being partnership property. Whatever acts are done by any partner, in regard to partnership property or contracts, beyond the scope and objects of the partnership; must, in general, to bind the partnership, be derived from some further authority express or implied, conferred upon such partner, beyond that resulting from his character as partner. The authority of each partner to dispose of the partnership funds, strictly and rightfully extends only to the business and transactions of the partnership itself; and any disposition of those funds by any partner beyond such purpose, is an excess of his authority as partner; and a misappropriation of those funds for which the partner is responsible to the partnership: though in the case of bona fide purchasers, without notice, for a valuable consideration, the partnership may be bound by the acts of one partner.

If one partner write a letter in his own name to his creditor, referring to the concerns of the partnership, and his own private debts, to those to whom the letter is addressed; the letter not being written in the name of the firm; it cannot be presumed that the other partner had a knowledge of the contents of the letter, and sanctioned them. Unless some proof to this effect was given, the other partner ought not to be bound by the contents of the letter.

IN error from the district court of the United States for the District of Mississippi.

In the district court of Mississippi an action of debt was instituted on an obligation executed on the first day of January, 1824, by which John Richards & A. H. Buckholts promised, under their respective hands and seals, to pay to N. Rogers & Sons, on the first day of April, 1824, three thousand two hundred and eighty-eight dollars, with interest from the date.

The defendant, Abel H. Buckholts, pleaded payment, and there was a general replication. After a trial and verdict for the defendant, in 1833, and a new trial granted, the cause was again tried in February, 1836; the administrators of A. H. Buckholts having been.

[Rogers v. Batchelor.]

brought in after his decease; and a verdict was again found for the defendant: the jury at the same time having certified, that the plaintiffs, N. Rogers & Sons, were indebted to the estate of A. H. Buckholts, the sum of one thousand eight hundred and twenty-six dollars.

A bill of exceptions was taken by the plaintiffs to the charge of the Court; and judgment having been rendered on the verdict for the defendants; the plaintiffs prosecuted this writ of error. The bill of exceptions stated, that on the trial of the cause the defendants set up offsets to the demand of the plaintiffs. They were contained in an account made up to April 1st, 1830; and show a balance due to John Richards & Co., which firm was composed of John Richards and Abel H. Buckholts. The balance due was one thousand five hundred and forty-one dollars. The accounts credit N. Rogers & Sons, the plaintiffs, with the amount of the note for which the suit was instituted, and with interest on it for six years, amounting to four thousand eight hundred and sixty-six dollars; and charges several items as payments to the plaintiffs, with interest on the same, showing the balance of one thousand five hundred and forty-one dollars. Two items on the debit side of the account were made the subject of controversy, viz: a charge of one thousand four hundred and fifty dollars, received from Lambert & Brothers, on the 4th of Septem-* ber, 1825; and a charge of three thousand dollars, under date of January, 1827, for John Richards' acceptance of the draft of N. Rogers, &c.

Dr.

The account was stated as follows:

N. Rogers & Sons, in account current (account to April 1st, 1830,) with John Richards & Co.

The debits, among others, were:

1825. Sept. 4. To cash from Lambert & Bro's, $1450.46 Interest on the same

1827. To acceptances of your draft on John

Richards & Co. payable at 6 mo.

Interest,

Cr.

530.62

$1981.08

3000

800

$3800

The credits were:

1827. April 19. By amount of John Richards & A. H.

Buckholt's note due this day,

Interest on same, 6 years,

$3325.25

1541.06

[Rogers v. Batchelor.]

In support of this set-off, the defendants relied upon the testimony of one Rowan, who testified that some time in the year 1830, he was requested by Buckholts to be present at a conversation he expected to have at his office, with a Mr. Rogers, (a member of the firm of Rogers & Sons, as he understands,) relative to their accounts, and requested him to note down and recollect the conversation; that some time after Rogers came. into the office, and a conversation ensued relative to their accounts; that the accounts before them were accounts made out by Rogers & Sons, between themselves and Richards & Buckholts, and John Richards & Co. and John Richards, and Lambert & Brothers, in account with John Richards & Co. Richards and Buckholts, and John Richards, and an account made out by Buckholts, between Richards & Buckholts, and Rogers & Sons: that in their conversation relative to those accounts, Buckholts asked Rogers if the several items charged in his account had not been received, and Rogers admitted they had been; that among other items so admitted, was the item charged in the account of offsets, filed under the plea of payment of one thousand four hundred and fifty dollars and forty-six cents, and the item of three thousand dollars.

The witness stated, that in their conversation about the one thousand four hundred and fifty dollars and forty-six cents item, Rogers admitted that sum had been received by Rogers & Sons, from Lambert & Brothers, in New York, and was part of the proceeds of seventyfour bales of cotton, shipped by Richards & Buckholts to Lambert & Brothers. That very little was said about the item of three thousand dollars; the witness recollected nothing more but an admission that it had been received. That something was said between Buckholts and Rogers about the right to apply moneys to the payment of John Richards' private debts; Buckholts contending Rogers had no right to do so, and Rogers that he had: but which particular item of payment witness did not understand. This was all the evidence introduced by defendants in support of the above two items of one thousand four hundred and fifty dollars and forty cents, and three thousand dollars. The said witness further testified, that he had understood the said John Richards had once failed, before, he went into partnership with the said Buckholts. No other witness was introduced on the part of the defendants. The defendants admitted, that in the account made out by Buckholts between Richards & Buckholts, and Rogers & Sons, abovementioned, about which the said conversation between Buckholts and Rogers took place; that the item of three