Thomas Forrest against Robert Waln and Benjamin R. Morgan, assignees of Israel Wheelen, 4 Yeates 337

Tilghman, C. J. The first question is reducible to a single point, whether Israel Wheelen, received value in his separate capacity, for the note on which this action is founded. The note is joint and several from Wheelen and Miller, after the dissolution of the partnership. It confesses value to have been received, but at what time or in what capacity, is not expressed. We must look elsewhere then, to find the nature of this value. For if we confine ourselves to the face of the note, it will not appear, whether it was not given for a book account due from Wheelen and Miller.

The state of the case explains the matter. A note drawn by the late firm of Wheelen and Miller, and indorsed by Dunwoody, was given up by the plaintiff and cancelled. There was no other value received. Now although the firm of Wheelen and Miller was dissolved, as far as they could dissolve it, yet it existed as far as the rights of third persons were concerned. They were still liable to be sued as partners, for debts due from the firm, and could be sued in no other manner. The cancelling of the old note discharged them from a joint debt, and not from a debt due from Wheelen, in his separate capacity.

And this is all the value he received for the new note. Now it was expressly the intention of the assignment of Wheelen, to give a preference to those persons, from whom he had received value in his separate capacity ; and to postpone those from whom he had received value in his joint or partnership capacity. From the special manner in which this clause is expressed, I suspect that when the assignment was made, Wheelen must have had an eye to debts of the nature of that in question.

I am of opinion, that upon the facts stated in this case, he received no value from the plaintiff in his separate capacity; and therefore the defendant is not liable to pay the plaintiff any dividend, before the three first objects of the assignment are accomplished. 2d. I am of opinion, that the plaintiff’s demand is not within the fourth description in the assignment. This description is confined to persons, who made or endorsed notes, for the accommodation of the late house of Wheelen and Miller. There are no facts stated in this case, which shew any such accommodation.

Neither do I think that the plaintiff’s debt comes within any other description in the assignment. If there was more than enough to satisfy the several classes of creditors particularly described, the surplus was to be returned to Israel Wheelen, and he remained responsible to the plaintiff. *1 am of opinion upon the whole, that the plaintiff is not entitled to receive any dividend from the defendants. [*340 Brackenridge, Justice, concurred. Judgment for the defendants.