Bullard v. Kinney. admissions made by the prisoner to the witness, the day after the deceased was shot by the defendant. The counsel of the prisoner moved to strike out this testimony, upon the ground that it had not been first shown by the prosecution that these admissions were made freely, and not under the influence of fear or other improper inducements. This motion was refused; and this is assigned as one ground of error. It is laid down as a rule, that "before any confession can be received in evidence, in a criminal case, it must be shown that it was voluntary." (1 Greenl. Ev., p. 327, § 219.) The same rule is stated in 1 Phil. Ev., 401. But in Williams' case, cited in Roscoe's Cr. Ev., 57, it was said by Taunton, J., that "a confession is presumed to be voluntary unless the contrary is shown." We think there was no error in this refusal of the Court to strike out the testimony, for two reasons: first, the objection should have been made to the introduction of the testimony, but by not making it at the proper time, the onus of proving that the confession of the prisoner was made under the influence of improper inducements was thrown upon the defendant; second, the facts stated in the testimony of the witness showed, prima facie, that the confession was voluntary. It is insisted only in general terms that the charge of the Court to the jury was erroneous. The charge is very full and complete upon all the points arising in the case, and we can see no error in it. There was no error in refusing a new trial; and we can see nothing in the other points made by the defendant's counsel. Judgment affirmed. BULLARD v. KINNEY et al. Where there is nothing in the constitution of a joint-stock-company which regulates the remedies of the shareholders, as between themselves, the general law of partnership must govern them. Where two shareholders in such company sold to the company goods to a large amount, and afterwards, during the existence of the company, sold their stock to A, and assigned their account for such goods to B, who sued such company on said account by attachment: Held, that such action could not be maintained, there having been no final settlement of the partnership accounts, no balance struck, and no express promise on the part of the individual members to pay their ascertained portion. The assignees of such account were placed in no better situation by the assignment, to sue, than the assignors before the assignment. APPEAL from the District Court of the Eleventh Judicial District, County of El Dorado. This was an action of assumpsit, brought by the plaintiff on an Bullard v. Kinney. account assigned to him by Sotzen and Goodnow, for goods, wares, and merchandise, sold to the defendants. The defendants composed a joint-stock-association, known as the "Columbus Quartz-Mining Company." While Sotzen and Goodnow, merchants, and partners, were shareholders in the company, they sold to the company, goods, wares, and merchandise, to a large amount. They afterwards, and during the existence of the company, sold their stock to one White, and assigned their account against the company to plaintiff. There was nothing in the constitution of the company which regulated the remedies of the shareholders, as between themselves. Nor was there any final settlement of the partnership accounts, or any balance struck, or promise on the part of the other shareholders to pay this account. The plaintiff commenced his suit by attachment against the property of defendants. The defendants had judgment in the Court below, and the plaintiff appealed. Sanderson and Hewes for Appellant. 1. A joint-stock-company, in respect to its liabilities to third persons, is the same as an ordinary partnership, and is governed by the same law; but, in respect to the rights of its shareholders inter se, it differs materially from an ordinary partnership, and is governed by its constitution and by-laws, or, in legal phraseology, its deed of settlement, and rules of law not applicable to partnerships. For instance, a joint-stock-company carries on its business. through agents solely. Its shareholders are sole and independent owners of their shares, and may sell or pledge them at pleasure, and such sale does not work a dissolution. Shareholders may make independent and insulated contracts with the company, and maintain action thereon. Collyer on Part., p. 945, §§ 1119, 272. 2. The rule that one partner can not sue another, has its exceptions, and this case comes within those exceptions. For instance, on partner may sue another for a balance due on settlement. Collyer on Part., pp. 247-251, et seq. Particular transactions may be withdrawn from the partnership account, and give rise to actions between the partners. Ib., p. 249, § 274. In this case there was a contract between Sotzen and Goodnow, and the company, to the effect, that if Sotzen and Goodnow furnish the goods, etc., the company would pay them their value out of the joint funds of the company. By such contract, this particular transaction was separated from the partnership account and insulated therefrom, hence, under the authorities, Sotzen and Goodnow could have maintained this action. 25 Wend., 450. Bullard v. Kinney. 3. Concede, for the sake of argument, that at common law this rule that one partner can not sue another would apply to this case, we then say that this is purely a technical one, and the reason given for it is, because a party can not sue himself; or, in other words, be both plaintiff and defendant in the same action. Hence, we say that although Sotzen and Goodnow could not maintain this action, their assignee can, for the rule can not operate against him, for he is in no sense a partner. Practice Act, § 4. We think not. The general D. K. Newell for Respondent. Can the action be maintained? law governing partnerships is applicable to joint-stock-associations, except where a different rule has been established by the association in its deed of settlement. Collyer on Part., p. 904, §§ 1115, 1116, 1117. Could Sotzen and Goodnow maintain this action? We think, certainly, no: 1. Because one partner can not sue his co-partners at law. 2. Because the account sued upon is not the amount due to Sotzen and Goodnow. They would only be entitled to recover whatever balance might be found due them after taking full account of all the partnership, and then ascertaining, after allowing the advances of every member, the amount, if any, which may have been advanced by Sotzen and Goodnow towards the common enterprise, more than their proportionate share. That would then be the amount due them, and not the amount of the original advancement; and this can only be ascertained by a suit in chancery for a settlement of the partnership affairs. But it is contended by the plaintiff that this is one of those debts upon which an action may be maintained by one member of a partnership against the residue. We admit that there are some debts upon which such an action may be maintained, such as an account stated by the parties, as balance struck, and some others, but this is not such a one, for these reasons: 1. That there has been no direct promise by the other members to pay Sotzen and Goodnow this account. 2. Because this is not the only remaining unsettled item of the partnership. Collyer on Partnership, §§ 272-275, and a number following. To authorize the action of assumpsit to be maintained, there must be no other unsettled matter between the parties, or then there must be an express promise by one or more of the company to pay the residue some certain fixed amount. BURNETT, J., delivered the opinion of the Court. The only question arising in the case is, whether the plaintiff can sue in this form? Bullard v. Kinney. There was nothing in the constitution of this company which regulated the remedies of the shareholders, as between themselves; and, therefore, the general law of partnership must prevail. (Collyer, § 1115.) There having been no final settlement of the partnership accounts, and no balance struck, and no express promise on the part of the individual members to pay their ascertained portion of this amount to Sotzen and Goodnow, they could not maintain assumpsit. As they could not sue, it is difficult to see how their assignee could do so. To permit a partner, who has a claim against the firm, and who can not, therefore, sue the firm at law, to avoid this disability by assignment of the debt, would defeat all the substantial reasons upon which this rule is predicated. This rule rests upon three grounds: 1. The technical ground, that a man can not, at the same time, in the same suit, be both a plaintiff and a defendant. 2. Because it would be useless for one partner to recover that which, upon taking a general account, he might be compelled to refund; and thus a multiplicity of suits be permitted, where one would answer. 3. The contrary rule would defeat the equitable right of the other partners to set-off their advances against those of plaintiff, and would force them to first pay the amount, and then rely upon the individual responsibility of the partner for a return of his proportion. The first ground being merely technical, may be considered as not so material under our system of pleading; but the other two grounds are substantial in their character. There is another objection that arises under the attachment law, as it then existed. Sotzen and Goodnow could not resort to the harsh remedy by attachment; but their assignee could, if he could maintain this suit. Such a remedy was not contemplated by the parties at the date of the transaction, and can not be invoked by the single act of one. Judgment affirmed. FIELD, J.-I concur in the judgment. Hart v. Burnett. HART v. BURNETT et al. In an action pending in the Superior Court of the City of San Francisco, plaintiff had verdict and judgment. Defendant filed a statement to be used on motion for a new trial. Plaintiff filed and served certain amendments to the statement, but gave no notice within two days of the settlement of statement before the Judge. The Court made an order, directing the motion for a new trial to be heard on the twenty-ninth day of April, 1857. On that day, the Court adjourned the hearing of the motion to the thirtieth, which was the last day of the existence of that Court. On that day, a motion for a new trial was denied. On the next day, papers and records of said Court were transferred to the Fourth District Court. On the twenty-seventh day of May, 1857, Fourth District Court made an order for the plaintiff to show cause why the order of the Superior Court denying a new trial should not be set aside, and on the day fixed to show cause why, District Court set aside said order of the Superior Court: Held, that the order of Superior Court granting a stay of proceedings had the effect of extending the jurisdiction of the Court, and that District Court had the right to make the order. An order denying a motion for a new trial, when there is no statement settled on file, is erroneous. APPEAL from the District Court of the Fourth Judicial District, County of San Francisco. The action in which the order appealed from was made, was one brought originally in the late Superior Court of the City of San Francisco, to recover possession of certain real estate situated in that city. A verdict for the plaintiff was rendered in said action in the Superior Court on the third day of April, 1857, and judgment therefor entered in the same Court on the eleventh day of April, 1857. The respondents, Biedman, Hawes, and Hosmer, gave notice of their intention to move for a new trial, and within such time thereafter as was allowed by the Court, or by the stipulations of parties, prepared, filed, and served their proposed statement for a new trial, in accordance with the thirtieth rule of practice of the Fourth District Court, the rules of the Fourth District Court having been previously adopted, and being then in force as the rules of practice of the Superior Court. The plaintiff prepared his amendments to the statement, and within the time allowed by the Superior Court, or by the stipulations of said parties, to wit, on the twenty-fourth day of April, 1857, in accordance with said rule of Court, filed and served his amendments, with the statement, upon the respondents' attorney, Horace Hawes, for which the said Hawes gave his written receipt of that date. The respondents having given no notice within two days thereafter of settlement of the statement before the Judge, an order of the Superior Court was obtained by the plaintiff on the twenty-eighth day of April, 1857, requiring the respondents to file their statement and amendments on the same day, with the clerk of said Court, and directing the motion for a new trial to be heard on the following day, to wit, |