The opinion of the Court, Shepley, C. J., Tenney, Howard, Rice and Appleton, J. J., was delivered by

orally. — William Stevens sues as surviving *227partner. The action then is to be considered as brought by the firm. Before a recovery can be had, it must be proved, that the firm paid the bill.

But the instruction allowed a recovery, if William alone paid it upon his individual account. That was erroneous.

Exceptions sustained.