As we understand the declaration in this case, it is founded upon promises made to the plaintiff as surviving partner of the firm of J. G. Bancroft & Co., and as surviving partner of the firm of G. A. & J. Q,. Adams, and also upon promises to the plaintiff, in his individual capacity. And the objection is taken by the defendant that these are different causes of action, which cannot be joined in one suit.
We suppose the objection is, not that the causes of action are of a different nature, and therefore cannot be joined, but
It is not disputed that the plaintiff is the surviving partner of the two firms, and it is well settled, that where a firm consists of two persons, and one of them dies, the rights of action which were vested in the firm survive to the remaining member. Not to him as to an administrator or executor, representing another person, but as the survivor of the partnership, representing himself, and being all that is left of the firm. The cause of action is in him; and hence it has been often held, that in an action at the suit of a surviving partner, he may include a count for a debt due to himself in his own right; as both causes of action are in him. Slipper & a. v. Stidstone, 5 D. & E. 493; French v. Andrade, 6 D. & E. 582; Golding v. Vaughan, 2 Chitty 436; Richards v. Howther, 1 Barn. & Ald. 29; Smith v. Barrow, 2 D. & E. 476.
On the death of one of two or more joint obligees, promisees, &c., the action must be brought by the survivor, or, if there be more than one, by all the survivors. 2 Salk. 444; Garth. 170; 1 Bos. & P. 445; 1 Saund. 291, f. n. 4. The remedy, at law, survives entire to the surviving obligee or promisee, who receives the share of the deceased in the avails of the suit, as trustee to his personal representatives, and must account for it with them. 1 Ld. Ray. 340; 1 Ves. 242, 252; Toller on Ex’rs. 155,163,444.
As it is clear, upon authority, that a surviving partner may, in an action brought by him as such survivor, include in his declaration a count for a debt due to himself in his own right, no reason occurs to us why he may not also, in the same suit, join another count for a debt accruing to him as survivor of another firm. The causes of action are all in him,-and the principle in the one case must be the same
The plaintiff seeks to recover, first, the note given by the defendant to Bancroft & Co.; second, an account of the firm of G. A. & J. Q,. Adams against the defendant; and third, a claim due the plaintiff in his individual right.
In regard to the note, the defence is, that it was given in part for liquors sold in violation of law. As applicable to this point the case finds, that on the 31st day of March, 1849, J. G. Bancroft & Co. were duly licensed to sell spirituous liquors for any purpose for the term of one year, and the license was duly recorded. After they were licensed and before the 10th day of August, 1849, the day on which the note was made, they had sold the defendant goods, mostly liquors, and on settlement the note was given. A small part only of the liquor was sold after the 6th of July, 1849, when the act under which the license was granted was repealed.
Now although it may be probable, from this statement, that a small amount was included in the note for liquors sold after July 6,1849, yet that fact is not distinctly found. The note was given on a settlement, and there may have been credits, which were applied by the parties at the time, for the payment of the liquors sold after July 6, 1849. A promissory note is prima facie evidence of a good consideration, and imports a consideration until the contrary is shown. Horn v. Fuller, 6 N. H. Rep. 511; 2 Stark. Ev. 280; 9 Johns. 217. The -illegality of the consideration should be made clearly to appear, before the note is held to be void.
But assuming that a part of the consideration of the note was for liquors sold after the passage of the act of July, 1849, still we are of opinion that it may be recovered. Bancroft & Co. had a general license, authorizing them to sell until April 1, 1850. It was a license granted by virtue of law. It had cost them a consideration to make it perfect; the fees for recording; and although the amount is
But the other matters sued for cannot be recovered. The whole amount, except the $6,90, was for liquors attempted to be sold under a license granted by virtue of the act of July 6, 1849. The case finds that these liquors were sold under a license granted by the selectmen of Nashville, by virtue of the act of July 6,1849, to George A. & J. Q.. Adams, “ to sell wine and spirituous liquors, for medicinal, mechanical and chemical purposes, and for no other use or purpose that they were all sold for a purpose different from either of those mentioned in the license; that they were sold to be used by the defendant as a beverage, and to be sold again to such persons as wished to purchase them of him for any purpose.
Now it is perfectly apparent that these sales were not for either of the purposes specified in the license. The liquors were not sold to be used for medicinal, mechanical or chemical purposes, but to be used by the defendant as a beverage. The sale was therefore in violation of the general statute, and being illegal, it raises no consideration which can be inforced.
The court had occasion to put a construction upon this statute in the case of The State v. Perkins, 6 Foster’s Rep. 9, and it was there held, that if a person having a license • to sell for the purposes specified in the act of July, 1849, should sell for other purposes, he was indictable for the offence in the same manner as before the passage of the
These sales, then, were made contrary to law, and the account cannot be recovered.
■ As to the $6,90, the payments made by the defendant far exceeded that sum, and that account is thus cancelled.
This disposes of the whole matter; and the result consequently is, that the plaintiff must have judgment for the amount of the note and interest.
Judgment for the plaintiff.