1. We are unable to adopt the view expressed by the learned Judge in paragraph 4 of his judgment that, in the absence of any evidence to the contrary a part-payment by one partner of a debt due by the line must be an act necessary for, or usually done in carrying on the business of the firm and is, therefore, binding on the other partners.
2. As we read Section 21 of the Limitation Act i hero must be evidence of some fact over and above the fact, that the payment is made by a partner to show that the partner making the payment had authority to do so on behalf of other partner's before another partner can be held chargeable by reason of the payment. It seems to us that the observation of Scott, J. in Premji Ludha v. Dossa Doongersey Lowji Nanji 10 B.k 358 that in a going mercantitle concern, such agency is to be presumed as an ordinary rule, is merely a dictum and in our view it is necessary in order to take the case out of Section 21 of the Limitation Act to show something more than the fact that the partner who made the payment is a partner in a going mercantile concern. There must, in our opinion, be some evidence that in the course of business the partner who had made the payment had authority to do so, on behalf of the firm. In the present case we find no such evidence. The payment was made by the 6th defendant individually and did not purport to have been made on behalf of the firm. The plaintiff's accountant stated in his evidence that the 6th defendant made the payment from the funds of the joint shop and that the shop accounts contained an entry of the payment. The accounts not having been produced the statement as to what they contained was of course not evidence, and we are not prepared to hold on the strength of the statement of this witness that the amount was paid from the funds of the shop and that the 6th defendant was in fact authorized by the other members of the firm to make the payment so as to render them chargeable.
3. The decree of the lower Appellate Court must be set aside so far as the 2nd defendant-appellant, is concerned. The plaintiff must pay the costs of the 2nd defendant in this Court and in the lower appellate Court.