(after stating the facts). We do not deem the presence of the three other partners essential, since it appears that each of them is insolvent; Williams dead, with no representative; Banks non-resident; and Elliott only, residing in the State. The suit on the notes given for the steam-boat was settled by the payment of $1,250, by the plaintiff, of a like sum by the defendant, and the plaintiff’s surrender to Harris of a claim held by him against Elliott *292and Harris, the latter being a surety, for $2,148, making the excess $2,000 paid by the plaintiff.
Confining our attention to this item as derived from the plaintiffs’ own funds, and as affected by their relations upon the note, it appears to us that while this sum in its whole amount should be charged to the copartnership account, yet only one half of it is due from the defendant to the plaintiff, just as would have been the plaintiff’s money payment divided between the parties, but that an equal sum was paid by the defendant, and thus their contributions are equal.
So must it be as to the alleged excess of the plaintiff’s payment. There may be some explanation on this point, as we must infer from the fact that there is no controversy about the amount. What effect the correction may have upon the result, will appear upon a re-statement, if found necessary. We deem it therefore proper before any final judgment, to have the point enquired into.
So far as the objection rests upon the form of the pleading, the charge being termed a replication, it is untenable.
While a counter-claim to a counter-claim is inadmissible upon the strict rules of pleading, its early introduction in the action without objection to the manner of introducing, requires us at this late stage to assign it a place in the complaint as an amendment, not as supplementary, but as belonging to the first allegation of the plaintiff’s cause of action.
We therefore deem it proper to direct an inquiry upon the point whether the whole $2,000 shall be charged against defendant, or one moiety only of it, and the reference will be to the same referee.
Reference directed.