Upon the rejection of the record from Virginia, the defendant, for the purpose of making out title by possession, introduced evidence conducing to show that possession had been taken under the patent and to the extent of its boundaries some thirtynine or forty years before the trial, by means of placing tenants on the land under E. McLawrin, the patentee, or J. McLawrin, her alienee, and that the possession had been so held under them and those deriving title from them, and under claim to be possessed to the extent of the patent boundary, until 1837, when the lessor, Robert McLarwin, claiming to be the owner of the land under said patent, and as may be assumed by virtue of the proceedings and commissioner's deed before referred to, took the control and the possession by renting out the land or placing tenants on it, claiming to the extent of the patent boundary, and had such control and possession by his tenants up to the commencement of this action. But it was proved that two of the defendants were in possession, claiming adversely when he thus took possession, and have so continued to hold, and that the defendants took possession after the lessor had taken the control and possession as above stated.

Upon this evidence, we think the following principles apply to the case: 1. Although R. McLawrin was not invested with any title to the land, yet if under claim of title and ownership he leased the land or put tenants upon it, intending thereby to take possession to the extent of the patent boundary, and if his lessees or tenants obtained or held the actual possession under his claim and without restriction of boundary, he became thereby possessed of all the land within the patent boundary which was not in possession of others who did not hold under him or recognize him as their lessor or landlord, unless, which does not appear, there was some conflicting elder patent, within the boundaries of which neither he nor his tenants made actual entry. 2. Being thus possessed, he may maintain an action of ejectment on his own demise against such of the defendants, if there be any such, as afterward entered upon his possession without title or authority, but as mere intruders. 3. But as he is not invested with the title or legal rights of those under whom, as holders of the title under the McLawrin patent, the previous possession was taken and held, he can not, though he may have acquired the possession with the consent of those persons, and from their tenants, avail himself of such previous possession, as the ground of recovering on his own demise against those defendants who entered upon that possession. He did not ac

quire the right of possession to the extent of the patent because there was no valid conveyance of the title to him. At most, he only acquired the possession as actually held under the patent when he took the control and possession, or to the extent that the possession was then vacant and was afterward taken by his tenants, or by him through them. And having no other title but this possession, he can only recover against such defendants as have entered upon it since he acquired it. And can not recover against the others because their possession is older than his, and because in fact he never was possessed of the land which was in their possession when he entered. The mere transfer of the possession to him, without a conveyance of the title, gave him no legal rights beyond the possession then transferred, and did not authorize him to sue in his own name for lands outside of that possession, and of which neither the possession nor the title was transferred to him.

The instructions asked for by the plaintiff (except the last, which was given) were properly refused, because they either assume that the plaintiff was entitled to the benefit of the possession as first taken under the McLawrin patent, or that his own entry by his tenants gave him possession to the extent of his claim though he had no title, and notwithstanding any adverse possession.

The first instruction for the defendant, which asserts in effect that the plaintiff could not recover upon a possession taken and held by his tenants, but must have been in the actual possession himself, and at the commencement of the suit, is inconsistent with this opinion, and is therefore deemed erroneous. The last condition, requiring the plaintiff to have been in possession at the commencement of the suit, was probably inserted through inadvertence, as the action could only be maintained against those who were then in possession.

The third instruction, authorizing an apportionment of the plaintiff's interest, has no basis in the evidence, as there is no proof that he holds title jointly or in common with others.

The report of processioners, dated in January, 1837, with the accompanying survey and depositions offered as evidence of boundary, were erroneously rejected. They were filed with the clerk of the county court in due time. And the statute, though it requires that they should have been recorded, does not make the recording a prerequisite to their admissibility as evidence: Stat. Law, 1099, sec. 2. And we do not perceive any ground on which the jurisdiction of the county court can be denied.

Wherefore the judgment is reversed, and the cause remanded for a new trial.

ADMINISTRATOR'S SALE OF OHIO LANDS BY VIRGINIA COURT is void for want of power: Salmond et al. v. Price et al., 42 Am. Dec. 204; and see Brown v. Bashford, ante, 559.

WARRANT AND SURVEY OF TRACT OF LAND give owner constructive possession of all the land included by his lines, although no part of it be actually occupied by him: Altemus v. Long, 45 Am. Dec. 688; and see Overton's Heirs v. Davisson, 42 Id. 544, and note 550, where other cases relating to extent of claim are collected.

POSSESSION FOR TWELVE OR THIRTEEN YEARS UNDER CLAIM OF TITLE gives a prima facie right of recovery in ejectment against a tortious holder: Cain v. McCann, 4 Am. Dec. 384; or though the possession be for but eight or ten years: Jackson v. Harder, Id. 262; Den v. Morris, 11 Id. 508; Den v. Snowhill, 22 Id. 496.

WARDER & Co. v. NEWDIGATE.

[11 B. MONROE, 174.]

DEBT DUE FROM ONE PARTNER IS NOT VALID SET-OFF against a debt due to the firm.

AGREEMENT WITH INDIVIDUAL PARTNER THAT DEBT DUE FROM HIM SHOULD BE AN OFFSET against one due to the firm can not bind the other partner unless he assents.

CONTRACT OF PARTNER FOR HIS OWN BENEFIT can not bind the firm, unless the other members have assented to it.

PARTNER MAY BIND COPARTNER IN ALL TRANSACTIONS RELATING TO THE PARTNERSHIP in the course of its business.

GOODS FURNISHED PARTNER INDIVIDUALLY ARE NOT PAYMENT of debt due the partnership, though the partner receiving them agrees that they shall be. Such an agreement does not bind the firm.

ASSUMPSIT. The opinion states the facts.

H. Taylor and Harlan, for the plaintiffs.
Hord and Payne, for the defendant.

By Court, SIMPSON, J. Warder & Coburn, being partners in the grocery business, had an account on the books of the firm against Newdigate for upward of sixty dollars. They dissolved their partnership, and their notes and accounts were placed in the hands of Warder, who by the agreement of the parties was to settle and adjust the business of the firm. Notice of the dissolution, and of the arrangement by which Warder was authorized to attend to the partnership concerns, and collect the debts, was duly published in a newspaper in the city of Maysville, where the business of the firm had been carried on.

This action of assumpsit was afterward brought against Newdigate for the account against him on the books of the firm. By the consent of the parties, a jury was dispensed with, and the whole case referred to the court. A judgment was rendered for the defendant, and the correctness of that judgment is the question now to be determined.

It appears that Coburn, one of the partners, agreed with Newdigate that if he would purchase his groceries at their house, he might pay his account in corn, hay, etc., with which he was to supply him for his individual use. The account was created with the firm under that agreement, and Newdigate in compliance with it on his part had furnished Coburn with provender and other articles; his account for which against Coburn, exceeded the amount due by him to the firm. There was no proof, however, that Warder, the other partner, assented to the agreement, or had any knowledge of its existence.

As the account due to the defendant is the individual debt of one of the partners, it is not a valid set-off against the partnership demand sued for; nor can it form a good defense to the action, unless the agreement relied upon authorizes it to be used in that way.

The general doctrine is, that one partner can not appropriate partnership effects without the consent of his copartners, to the payment of his individual debts. A contract to bind the partnership must not only be within the scope of its business, but it must be made with a party who has no knowledge that the partner with whom he contracts intends it for his individual benefit, and is acting in violation of his obligations and duties to the firm. For every contract of this description made with such knowledge will be void as to the firm, although it may be obligatory upon the partner who makes it: Daniel v. Daniel, 9 B. Mon. 195; Story on Partnership, sec. 128; Gow on Partnership, 59.

In this case the contract of a partner made for his individual advantage is relied upon to bind the firm. It can not have that effect unless it was entered into with the assent of the other partner. It was not within the scope of the partnership business; it was not made for the benefit of the firm, nor was the credit given to the firm, but to the individual partner with whom the contract was made. The groceries were no doubt purchased upon the faith that they might be paid for in the manner stipulated. That faith was based however upon the promise and liability of an individual partner, and not of the firm. The de

fendant must be presumed to have known that the promise did not bind the firm, and to have relied upon the individual responsibility of the partner with whom he contracted.

It has been argued, however, that this doctrine does not apply to executed contracts, such as this, but only to those contracts that are executory. We do not perceive any reason for such a distinction. For if the creditor of one of the partners should receive partnership effects in payment of his debt, and at the same time surrender the note or other evidence of his debt, the contract would be executed on both sides; and yet it is clear that the agreement being prejudicial to the other partners, and a fraud upon their rights, would not be obligatory upon them unless it had been made with their assent. But if such a distinction existed, it would not aid the defendant in this The account stands against him on the books of the firm unsettled, and his account against Coburn is in the same condition. He owes the firm, and one of the members is indebted to him. If no demand existed upon either side, if the groceries had been paid for when they were purchased, by the sale and delivery of articles of equivalent value, the contract would have been executed; but then the groceries, instead of being charged to the purchaser, should have been charged to the partner, who had virtually become the purchaser by appropriating them to his own exclusive use and benefit.

case.

It is an undoubted proposition of law, that one partner may by his own acts bind his copartners in all transactions relating to the partnership, in the course of its business. If a firm sells goods and receives various commodities in payment, the act of one partner in relation thereto binds the firm, because it is in the course of its trade, and done in the name and for the benefit of the partnership. But when goods are purchased to be paid for in commodities furnished not for the firm, but for one of the partners individually, and this fact is known to the purchaser, the act of one partner in such a case does not bind his copartners, unless they assent to it. As, however, arrangements of this description may be frequently made, and are no doubt usually made with the assent of the other partners, very slight evidence would be sufficient to establish such assent. An entry

on the books of the firm, by which the goods sold were charged to the partner, for whose benefit the transaction was made; or credits entered to the purchaser for commodities sold to one of the partners for his own use, without objection to such entries by the other partners, or the knowledge of the copartners of the