Williams v. Donaghe's

February 10.

delivered the opinion of the court.

The evidence abundantly proves, that the debt which was the consideration of the note in the bill mentioned, was contracted with Hugh Donaghe by Joseph Williams, one of the partners of the firm of Joseph & Cumberland D. Williams, on the credit, and for the benefit of the firm. It did not cease to be a debt of the firm, by the said Joseph Williams giving his individual note therefor ; nor by his applying, to his individual use, some of the property *305for which the debt was contracted. Being a debt due ° _ from the partnership, and one of the partners residing out of this commonwealth, the suit was properly brought in chancery ; and the demurrer was, therefore, correctly overruled. The court is farther of opinion, that all the exceptions to the commissioner’s report that were sustained by the chancellor, were correctly sustained. Bpt although there is no sufficient evidence in the record to shew that the 9§ tons of iron, the subject of the 3d exception, were delivered by the appellants to the testator of the appellee ; and although in consequence of the absence of such testimony, that exception was correctly-sustained ; yet, as there is strong reason to believe from the deposition of Cahill, and the answers of the defendants, that the said iron, or a part thereof, was delivered to the said Donaghe, or his order; and as the commissioners having allowed a credit therefor on the evidence exhibited, may have prevented the appellants from producing other evidence, in their power, on that subject; the court is farther of opinion, that under these circumstances, the chancellor erred in pronouncing a final decree; and that he ought to have recommitted the account to a commissioner for farther evidence and enquiry, whether any, and if any, how much iron was delivered to Donaghe, or his order, in pursuance of the agreement evidenced by the letters of the 23d and 24th of August, 1808. The decree, on this ground only, is reversed, and the cause is remanded for farther proceedings, &c.