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SIMMONS v. TONGUE 357
these claims now made against them, which were debts due from
the several firms of Tongue & McPherson, and from T, T.
McPherson & Co. of which the late Thomas Tongue was a part-
ner, must be postponed in favour of the claims due from the late
Thomas Tongue in his separate capacity. It is alleged, that this
separate estate will be wholly insufficient to pay the debts due
from the late Thomas Tongue alone; if so, then this postpone-
ment will amount to a total rejection of those claims against the
several partnerships, as there will be no surplus of this separate
estate applicable to them. This direction comprehends claim No.
127, 128, 129, 130, 131, 132, 136 and 143, as to all which the
auditor's objections are deemed valid.
It has been urged, as regards claim No. 127, that although it
was, in truth, originally only a claim against the firm of Tongue &
McPherson; yet, that this intestate had, in his life-time, assumed
upon himself the payment of it; and had thus made it his own
separate debt. It is true, that any one member of a partnership
may, by promise or contract, take upon himself the payment of a
partnership debt; or the partnership may, in like manner, bind
itself to pay a separate debt of any one of its members. But, in
this instance, there is no sufficient evidence of any such promise
or contract, whereby the late Thomas Tongue had made himself
separately liable to pay this debt, due from the firm of Tongue &
McPherson; and therefore the objection against it has not been
removed.
Another class of claims are those made by the holders of some
accepted bills of exchange. Where a bill has been accepted, the
acceptor is considered as the principal debtor, and primarily liable
for the whole amount to all others, the drawer, endorsers, and
holder. The acceptance is prima facie evidence against the accep-
tor of his having in his hands effects of the drawer; and, there-
fore, if the fact be not so, it lies upon the acceptor to establish the
fact to enable him to recover from the drawer, (m) Hence all
these claims founded on bills of exchange drawn by the late
Thomas Tongue, which had been accepted, must be regarded as
claims for which he was not the principal debtor; unless it should
be shewn that the acceptor paid it without having in his hands
effects of the drawer. And as the drawer and endorsers stand in
the relation to each other of a series of sureties, it must be shewn,
that each one who stood before, and was, therefore, principal
(m) Selwyn N. P. 351.
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