Mr. Chief Justice Murray concurred.

This was an action brought on certain promissory notes. The main defence is, that the notes were made by one partner in the firm name, but for his own private uses.

This defence would be good against a holder with notice of the fraud. *142But it is found by the District Court as a fact, that the plaintiff is an innocent holder, in which case the recovery cannot be defeated. The principle involved we decided in this ease when it was here before. See 4 Cal. R.

The remaining defence rests upon the claim of certain payments. As to these, the Court below finds that they were adjudicated upon as set-offs in another suit between the same parties. This is sufficient to prevent their consideration a second time.

Judgment affirmed.