Solomon vs. Solomon, Ex'x. gain between them, a particular transaction may be separated from the winding up of the general concern, and when thus insulated, is taken out of the general law of partnership, constituting between the partners a separate and independent debt on putting an end to the joint concern." Vaughan B. in the same case, says—“If any matter be withdrawn from the adjustment of the partnership concerns, and made the subject of a distinct settlement, the general rule, that one partner cannot sue another in respect of a partnership transaction, till the whole partnership concerns are adjusted, does not apply." Now it is respectfully contended that this very separation took place between Henry and James Solomon in respect to the sum of $3,500, which forms the only matter in controversy in this record. Both partners consented that $3,500 might be withdrawn by Henry Solomon for his own use, and that James Solomon might leave the same amount in the hands of the factors, on which he wished to realise to himself the whole profit of the sterling exchange. As a further illustration of the severance as to this particular item of $3,500, let us consider the rights of Henry Solomon to a proportion of the sterling exchange on that sum, supposing it to have been realised. It has been held, in the case of Gray vs. the Portland Bank, 3 Mass. R. 364, that one partner might maintain an action against his co-partners for withholding from him his proportion of the profits of a branch of the business, within the terms of the co-partnership. Could Henry Solomon, in any form of action, recover against James Solomon or his representative, any portion of that exchange? The same evidence which has been adduced on this trial in the Court below, would be conclusive against him, as to his relinquishment of all community of interest in that portion of the profits of the partnership. The rule must then be mutual. The severance of this item, from the general concerns of the partnership, was complete by the assent of the parties, and the arrangement thus made, contravening no principle of law, cannot be impeached. IV. In support of the instruction to the jury, asked for by counsel for defendant in the court below, reference is made to the following cases and authorities. 4 Tyrwh. 335; Turn. & Russ. 523; 5 Barn. & Ald. 954; 3 Mees. & Wels. 357; Jacob 144. Each partner may give separate instructions to their joint factor. Stor. on Part. 5; 1 Dougl. 371; 1 H. Bla. 37; 9 Bingh. 297; 2 Johns. Cas. 329; 8 Cra. 50; 3 Mason. 138. Solomon vs. Solomon, Ex'x. V. The principles on which new trials are granted, on account of a misdirection of the Judge, are very clear. It may not be amiss, by way of refreshing our recollections on this point, to refer to the observations of a learned writer on this subject. "So universal is the practice" says he (in commenting on the granting new trials for a misdirection of the Judge in matters of law,) and with such deep reverence are the principles of law regarded, that perhaps there cannot be found one instance of injustice done, in a clearly ascertained case of misdirection, where a new trial has not been directed. It is a favourable ground of relief, has the ear of the court, is treated with marked respect, has every facility afforded, and when successful, the relief is uniformly granted without costs. The error of the judge calls for correction as a matter of right, not of discretion, and a motion for a new trial on this ground is an appeal to the well settled principles of law."-Graham on New Trials 261. How was the charge of the Court to have been understood by the jury, when they were told, that verbal admissions "when deliberately made or precisely identified are usually received as satisfactory?" Are they ever received otherwise? In the words of the same author from whom the quotation is made, is not the "evidence they afford often of the most satisfactory nature? And when acted upon by others, are not the admissions conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced?" Why suggest a doubt in the minds of the jury as to the satisfactory nature of the repeated statements and declarations of James Solomon that "Henry had been more fortunate than he, had saved the most of his part of the cotton, and he (James) should lose his?" Were they not evidence? Such a suggestion could not fail to lead the jury to illegal results, and such has been the effect. This misdirection then affected the result and the case at bar is within the rule. VI. In support of the sixth assignment of error, reference is made to the case of Thomason vs. Smithson 3 Verm. R. 272; to 2 Desaus. 323; 1 Bibb 253; 1 Day. R. 156; 3 Hayw. 192; 1 Conn. R. 711; 3 Wheat. R. 527. VII. And lastly to support the seventh assignment of error, reference is made to the case of Gaither vs. Caldwell 1 Dev. & Batt. 508; 1 Desaus. 134; 2 John Ch. R. 92; 6 Wheat. R. 468. POE & NISBET for the defendant in error. Solomon vs. Solomon, Ex'x. By the Court.-WARNER J. delivering the opinion. The complainant in this case filed her bill against the plaintiff in error in the Court below, calling upon him to account for the proceeds of a lot of cotton purchased by the complainant's intestate, James Solomon, in his lifetime, and the defendant as co-partners. From the record as transmitted to this Court, it appears that the defendant and his brother James, advanced about the sum of thirtyfive hundred dollars each, to purchase cotton on speculation, to share equally of the profits and loss of the adventure. In pursuance of the agreement between them, about three hundred and fifty bales were purchased and forwarded to Wimberly & Jones, their factors in Savannah, which were by them shipped to Isaac, Low & Co. at Liverpool. It also appears that Wimberly & Jones drew against the cotton so shipped by them to Liverpool, the sum of seven or eight thousand dollars. After the cotton had been shipped to Liverpool, Henry Solomon, the defendant, proposed to draw on Wimberly & Jones on account of the cotton, the sum of thirty-five hundred dollars, for his individual use; to which James Solomon assented, but declined drawing any money for himself, saying he had no use for the money, and wanted the benefit of the sterling exchange, &c. The cotton was sold in Liverpool, and the proceeds, over and above the sum drawn by Wimberly & Jones, was two thousand and thirty-six dollars, including the sterling exchange, which was equally divided between the partners. It also appears from the record, that suit was instituted by the partners against Wimberly & Jones, for the money drawn by them against the cotton remaining in their hands, and a judgment rendered therefor, for the sum of four thousand four hundred and seven dollars and nine cents, which has never been collected, Wimberly & Jones having become entirely insolvent. The complainant, as the adm'x of James Solomon, now claims the one half of the thirty-five hundred dollars drawn by Henry Solomon against the cotton, in May 1840, for his individual benefit, and that he account with her for the proceeds of the sale of the cotton, &c. which has come into his hands as one of the partners in the joint adventure. The defendant refuses to account with the complainant, on the Solomon vs. Solomon, Ex'x. ground that the drawing the thirty-five hundred dollars, in May 1840, from Wimberly & Jones, by the consent of his co-partner, was a dissolution of the co-partnership to that extent, and, therefore, he has a legal right to appropriate the amount so drawn to his individual use, without accounting to his co-partner therefor. On the trial of the cause, the jury found a verdict for the complainant, for the one half of the thirty-five hundred dollars, with interest thereon from May, 1840. The case now comes before this Court on a writ of error and bill of exceptions to the charge of the Court below, to the jury. [1] The Court below charged the jury-"If the answer of the defendant and other evidence satisfies them, that Henry Solomon and James Solomon, purchased the cotton jointly, paid equal portions of the purchase money, were to pay equal portions of the expenses and transportation of the cotton, and were to share in the losses and profits, it is a co-partnership. There is no difference between a joint adventure, when the joint adventurers purchase jointly, and are to participate in the losses and profits, and a co-partnership. Such an adventure is a co-partnership.” "The contract of co-partnership imports entire good faith between or among the partners. Partners are bound to use the partnership property for the benefit of the partnership interest, therefore, if one partner draws upon the partnership funds and applies the proceeds to his own individual use, he is liable to account to his co-partner for a moiety, with interest from the time he received the fund so drawn. The interest each partner has in the partnership property, is his share in the surplus, after the partnership accounts are settled, and all just claims satisfied." "The only ways a co-partnership for a single adventure, enterprise, or business, can be dissolved are-first, by the extinction or destruction of the subject of co-partnership; or secondly, by a total separation or severance of it, before the completion of the business or enterprise; or thirdly, by a completion or ending of the adventure, business or enterprise. The Court does not recognise any such thing in law, as a dissolution pro tanto of a co-partnership for a single adventure, enterprise or business-there must be a total severance. If James Solomon, when he gave Henry Solomon leave to draw the thirty-five hundred dollars against the cotton, for his (Henry Solomon's) use, agreed also, that he would take the risk of the failure of the Savannah factors and Liverpool consignees, and that the future loss should fall upon him, then the jury ought to Solomon vs. Solomon, Ex'x. find for the defendant, otherwise for the complainant. With respect to verbal admissions, they ought to be received with great caution, and if made by a party when ignorant of his rights, are not binding upon him; yet, when made deliberately, and precisely identified, are usually received as satisfactory." Defendant's counsel asked the Court to charge that it was competent for James and Henry Solomon, during any period of the adventure, to have severed by agreement any part of their interest in the subject matter of the enterprise; therefore, if the jury should be of the opinion from the evidence, that James Solomon agreed that Henry Solomon should withdraw thirty-five hundred dollars of his part of the proceeds of the cotton, and that James Solomon preferred to leave the whole of his share with the view to realize to himself the profit of the sterling exchange, they ought to find for the defendant, which the said Court refused to charge; but charged the jury" that it was competent for Henry and James Solomon at any time before the termination of the adventure, to agree to a total separation of their interests, or that Henry Solomon might draw for thirty-five hundred dollars and appropriate the same to his own use, and if James Solomon assented to it, and that James would run the risk of future loss, then the jury would find for the defendant." We have carefully examined the instructions given to the jury by the Court in this case, in reference to the law of partnership, and give our sanction to most of the principles advanced by the Court below, as applicable to the case then before it. If, however, the Court intended to be understood as saying, that co-partners, as between themselves, could not alter, modify, or dissolve a co-partnership for a single adventure, enterprise, or business, by contract or agreement, then we are of the opinion the Court below erred in its judgment as to the law. Partnerships for a single adventure, enterprise, or business, are formed by agreement between the partners, and where no certain limit is fixed for their duration, may be dissolved at the pleasure of either of the partners. Story on Part. 286, sec. 269; 3 Kent Comm. 53. The co-partnership existing by the contract of the parties, [2.] may be modified, altered, or dissolved by contract, as between themselves, either in the whole, or in part, provided such contract does not violate any principle of law, or public policy. This portion of the charge of the Court below is assigned for error, and unexplained by the other portions of the charge, we should have |