Pateshall v. Apthorp

1 Super. Ct. Jud. 179

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1765
• Status: Published

Opinion

Ch. Justice.

The first Question I take to be, Partnership, or not. If one Partner receives Money, and carries it to the Company Account, clear Evidence that the Money was received in Partnership.

The second Question is, whether the Note given by Wheelwright discharged the Company. Had the Note been from Wheelwright and Apthorp, I should have had more Doubt. The Plaintiff here gives Credit for Note of Wheelwright’s. Now, whether the Contract with the Company can be supposed to continue, after Wheelwright had taken the Company’s Debt upon himself, and Pateshall had received the Note as a Balance of the Company Account, I doubt.

*

The Jury found for the Plaintiff.

Afterwards, a Writ of Review being brought, the Cause was again argued, before the Chief Justice, Justice Lynde and Justice Russell.

Justice Russell

was full with the original Plaintiff

Lynde, Justice

continued strongly of his former Opinion;, and was strenuously in Favour of the Plaintiff in Review.

The Doubts of the Chief Justice were, on this Tryal, removed, and he said that, from the Authorities, it was very clear, that the Note was no Discharge of the Company.† (²)

The Jury was of the same Opinion with the Jury upon the last Tryal.

Judgment being entered, Mr. Gridley moved for an Appeal Home, which, not being opposed, was granted.

Vid. Cun. L. Dict’y Tit. Acceptance.

Qu. if thefe Authorities would not have been pertinent to the Point in Question: 3 Cro. 85, 86. 2 Cro. 650. 1 Mod. Rep. 221, 225. 3 Lev. 55. 1 Brown. 47.

2 (2) The opposite doctrine has long been ectabliched, both in this country and England. See Story on Partn. § 155 and note. Arnold v. Camp, 12 Johns, 409. French v. Price, 24 Pick. 23.