Lingenfelser et al. v. Simon et al. the note, the onus was upon the plaintiff to show their liability, and not upon them to show that they were not liable. The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial. LINGENFELSER ET AL. v. SIMON ET AL. PARTNERSHIP.-Judgment Against One Partner.-Suit Against the OthersThe recovery of a judgment against one partner bars an action against the other partners upon the same cause of action. SAME.-Execution of Note by One Partner.-The exccution of a note by one of several joint debtors does not operate as a satisfaction of the original debt, in the absence of an express agreement that it shall be received in full satisfaction. PRACTICE.-Appeal from Justice's Court.-Pleading in Appellate Court.-Where an action commenced before a justice of the peace is taken by appeal to a higher court, the defendant is not injured, nor will a judgment be reversed, by reason of the court's sustaining a demurrer to good paragraphs of an answer, if the matters set up in the answers are provable under the general issue. DEPOSITION.-Motion to Suppress Deposition.—A motion to suppress a deposition, because the names of the parties are not properly indorsed on the envelope, cannot be made after the publication of the deposition. SAME.-Where a party appears at the time and place given in a notice to take depositions, and consents that they may be taken at another place, he cannot afterward object that they were not taken at the place named in the notice. SAME. If a deposition shows that the taking was adjourned from day to day, without assigning any cause, where the notice provided for adjournments, a party who appeared at each adjournment without objection cannot afterward object. SAME.-Parties are not injured by, nor can they complain of, questions and answers in a deposition that tend to sustain their theory of the case. EVIDENCE.-Secret Partner.-In an action against partners, two of whom are alleged to be dormant, for goods sold to them, it is competent for the plaintiff to testify whether he was informed of the existence of the secret partners, and if so, when and how he received the information. SAME.-A witness may be asked to describe a note, for the purpose of iden tifying it, and such question will not call for the contents of the note. Lingenfelser et al. v. Simon et al. SAME.-Where a letter is written, in the name of partners, by one employed to act for them, it is competent for them to show by whom and under what circumstances it was written. From the Allen Common Pleas L. Newberger, G. H. Voss, B. F. Davis, and J. A. Holman, for appellants. A. Zollars and F. T. Zollars, for appellees. BUSKIRK, C. J.—This was an action by the appellees against the appellants. The action was commenced and tried before a justice of the peace, who rendered a judgment for the appellants, from which judgment the appellees appealed to the court of common pleas. In the latter court, the cause was tried by a jury, and resulted in a verdict for the appellees. The court overruled a motion for a new trial, and rendered final judgment upon the verdict. The complaint was in two paragraphs. The first paragraph alleges, that the appellees were a firm, doing business under the firm name of Edward Simon & Brother, and that on and before and after the 20th day of July, 1868, the appellants were engaged in the manufacture of trunks, and selling valises and travelling bags, in Fort Wayne, Indiana, and that at that time the appellants were all partners in said business, under the firm name of John Lingenfelser; that said Henry and Emil Lingenfelser were secret and silent partners in said firm, and fraudulently and falsely concealed from the plaintiffs and the public the fact that they were partners with said John Lingenfelser. A further allegation, that on the 20th day of July, 1868, the plaintiffs, upon the order of John Lingenfelser, sold and delivered to said firm of John Lingenfelser a bill of goods, consisting of travelling bags, etc., amounting to one hundred and eighty-seven dollars and twelve cents, a bill of particulars being made a part of this paragraph; that the same was due, etc. The second paragraph states, that the plaintiffs (appellees) on the 20th day of July, 1868, upon the order of John Lingenfelser, sold and delivered to said firm of John Lingenfel Lingenfelser et al. v. Simon et al. ser a bill of goods, etc., and that they (appellants) on the 22d day of September, 1868, promised to pay for said goods, etc. In the court of common pleas, the appellants filed an amended answer, in six paragraphs. The first was the general denial. The second paragraph was as follows: "Defendant John Lingenfelser, for second and further answer, says that the plaintiffs recovered judgment against the defendant John Lingenfelser for the same demand since the creation of said claim now made in plaintiffs' complaint herein, which judgment is of record in the records of this court; wherefore said defendant John Lingenfelser prays for judgment and for costs against said plaintiffs." The third paragraph was as follows: "And for third and further answer, the defendants Henry and Emil Lingenfelser say that the claim now sued upon by plaintiffs in this action is not against them of right, nor by them owing to said plaintiffs at all, but by said John Lingenfelser in judgment, and that they are not indebted, nor are they bound, unto said plaintiffs for the debt of John Lingenfelser by law, not having so promised in writing, nor in equity, having never made any promise which said plaintiffs accepted for said claim." The fourth paragraph was as follows: "Defendants, for fourth and further answer, say that the said claim sued upon by said plaintiffs was satisfied by defendant John Lingenfelser giving his promissory note therefor, to the satisfaction of said claim of said plaintiffs; that said John Lingenfelser does not know where said note is; wherefore," etc. The fifth paragraph of the answer was as follows: "For fifth and further answer to the second paragraph of the complaint, defendant John Lingenfelser says that he admits the indebtedness in said second paragraph contained, but further says that said plaintiffs recovered a judgment in this court on the day of 1868, for the same identical claim sued on, and prays that so far as he was concerned this action may be dismissed as to him; wherefore," etc. The sixth paragraph of the answer was in these words: "Defendants, for sixth and further answer to first paragraph Lingenfelser et al. v. Simon et al. of plaintiffs' complaint, say that said defendant John Lingenfelser settled and satisfied in full the account sued upon in this action before this action brought by his, defendant John's, promissory note." The court sustained a demurrer to the second, third, fourth, fifth, and sixth paragraphs of the answer, to which ruling the appellants excepted. The appellants have assigned for error the sustaining of the demurrer to the answer, and the overruling of the motion for a new trial. The first question presented for our decision is, whether the court erred in sustaining the demurrer to the answer. We will consider the second and fifth paragraphs together, as they present the same question, the second being the separate answer of John Lingenfelser, and the fifth being the joint answer of Henry and Emil Lingenfelser. It is alleged in the complaint, that John, Henry, and Emil Lingenfelser were partners; that the business was carried on in the firm name of John Lingenfelser; that Henry and Emil were silent and secret partners in said firm, and fraudulently concealed from the plaintiffs and the public the fact that they were such partners; that the plaintiffs sold to the said John Lingenfelser a bill of goods, for the value of which the plaintiffs sought in this action to recover against all of the partners of said firm. The substance of the second and fifth paragraphs of the answer was, that the plaintiffs had recovered a judgment against the said John Lingenfelser, for the same identical cause of action set out in the complaint. Did this constitute a bar to the action? We are of opinion that the recovery of a judgment against one partner bars an action against the other partners, upon the same cause of action. It was held, by the Supreme Court of the United States, in the case of Mason v. Eldred, 6 Wal. 231, that the recovery of a judgment against one partner bars an action against the others, though the latter were dormant partners of the defend Lingenfelser et al. v. Simon et al. unknown to the The court, after "The gen ant in the original action, and this fact was plaintiff when that action was commenced. reviewing the English and American cases, say: eral doctrine maintained in England and the United States may be briefly stated. A judgment against one upon a joint contract of several persons, bars an action against the others, though the latter were dormant partners of the defendant in the original action, and this fact was unknown to the plaintiff when the action was commenced. When the contract is joint, and not joint and several, the entire cause of action is merged in the judgment. The joint liability of the parties not sued with those against whom the judgment is recovered, being extinguished, their entire liability is gone. They cannot be sued separately, for they have incurred no several obligation; they cannot be sued jointly with the others, because judgment has been already recovered against the latter, who would otherwise be subjected to two suits for the same cause." The question arising upon the second and fifth paragraphs of the answer was very fully considered by this court, and decided in accordance with the doctrine laid down in the above case, in the case of Crosby v. Jeroloman, 37 Ind. 264. The third paragraph only amounted to the general denial, and should have been stricken out. There was no error in sustaining the demurrer to it. The fourth paragraph presents for our decision the question of whether the execution of a note by one of several joint debtors operates as a satisfaction of the original indebtedness, in the absence of an express agreement that the note should be received in full satisfaction. In Maxwell v. Day, 45 Ind. 509, it was held, that "the taking of a note from one of several joint debtors for a preexisting debt, is no payment, although security may be given thereon, unless it be expressly agreed to be taken as payment, and at the risk of the creditor." In addition to the authorities there cited, we cite Schemerhorn v. Loines, 7 Johns. 311, and Muldon v. Whitlock, 1 Cow. 290. In the case last cited, it is said, by SUTHERLAND, J., |