#### *Anderson v. Bullock and Marshall.*

Submitted without argument, October 20th, 1815.

1. Partnershlp† — Trust—Deed by Acting Partner after Dissolution — What Conveyed Thereby. — If a bond be executed, to the acting partner of a late mercantile company, a deed from such partner conveying all his real and personal property, in trust, for the payment of his debts and those of the company, (without mentioning the debts due to the company,) is not to be considered an assignment, of such bond, to the trustees.

2. Sealed Instrument — Scroll—Necessity of Recognition in Body of Instrument. — A writing, by which the party binds himself, his heirs, &c. to pay a sum of money, for value received, as witness his hand, (saying nothing of his seal,) is not an obligation under seal, but a promissory note; notwithstanding a scroll, purporting to be a seal, be annexed to the signature: and it be proved that the writing in question was "executed'’ by the plaintiff: it not appearing, explicitly, that he sealed, as well as signed it.

See Austin’s admx, v. Whitlocke’s executors, 1 Munf. 487.

3. Plea of Set-Off — Plea of Payment — Evidence—Case at Bar. — If a defendant plead, as a set-off, an obligation of the plaintiff, commonly called a single bill, assigned to him by a third person, and also a general plea of payment; and the writing produced appear not to be an obligation, but a promissory note, which is proved to have been executed by the plaintiff; it ought to be received as evidence on the second, though not on the first plea.

David Bullock and William Marshall, “assignees of William Austin,” brought suit in the Superior Court of Caroline County, against William Anderson, on a bond executed by the defendant to William Austin, under the name and description of acting partner of the late House of Austin and Anderson. The declaration charged that Austin made the assignment to the plaintiffs, “by his certain deed in writing, sealed with his seal, and to the court shewn,” bearing date the Sth of August 1802.

The defendant, after craving oyer of the bond and deed of assignment, pleaded a set-off, in part, before the assignment; payment in part, in like manner ; and payment in full to Austin and Anderson.

The set-off was described as an obligation, commonly called a single bill, executed on the 10th of October, 1801, by Austin and Anderson to Thomas and Amos Ladd, and by them assigned to the defendant, June 22d, 1802.

At the trial, the plaintiffs produced in evidence a deed purporting to be a deed of assignment, executed the Sth of August 1802, between William Austin of the first part, the plaintiffs of the second part; sundry creditors *of the said Austin, in his private and individual character, of the third part; and sundry persons, denominated, “creditors of the said William Austin as one of the house of Austin and Anderson,” of the fourth part; by which deed, William Austin conveyed the whole of his own real and personal estate, contained in a schedule thereto annexed, to the plaintiffs in trust, *for the purpose of paying, in the first place, all the debts due from himself in his individual character, and, afterwards, certain debts due from Austin and Anderson :— but nothing was said in the deed or schedule, about the outstanding debts belonging to the firm, except that, in the schedule, there was an item of “cash, book debts and bonds (after deducting some bad and suspicious debts,) amounting to 13,1831. Is. 3d.;” without saying that any of those debts were due to Austin and Anderson. To which deed the defendant objected, as variant from the assignment set forth in the declaration; hut the court over-ruled the objection, and suffered said deed to go as evidence to the jury ; after which, the defendant offered in evidence a paper writing, in the words and figures following :—

“$2364.81. Richmond, October 10th 1801.

“On or before the first day of February next, we bind ourselves, our heirs, executors, or administrators, to pay Thomas and Amos Ladd, or order, two thousand three hundred and sixty-four dollars and eighty-one cents, for value received in thirty hhds tobacco. Witness our hands.

“Austin & Anderson. [L. S.]

“Teste N. Anderson, jr.”

With an assignment thereon from Thomas and Amos Ladds, to him the defendant, dated June 22d, 1802 ; which paper writing was proved to have been executed by Armistead Anderson of the house of Austin and Ander*200son : — to the admission of which last paper, the plaintiffs objected, and the court sustained the objection ; whereupon the defendant filed a bill of exceptions.

A verdict being- found, and judgment rendered for the plaintiffs, the defendant obtained a writ of supersedeas.

October 21st, 1815,

*

For monographic note on Set-Off, Recoupment and Counterclaim, see end of case.

†

Partnership. — See generally, monographic *note*on “Partnership” appended to Scott v. Trent, 1 Wash. 77.

the president.pronounced the following opinion of this court.

The declaration in this case is upon a bond executed to Austin,' as acting partner to the late house of Austin and Anderson. *The deed, which is alleged in the declaration to be an assignment of that bond to the appellees, is executed by Austin in his own right, and, though it may include debts due to Austin in that character, cannot be considered as including debts due him as acting partn er aforesaid. The court is therefore of opinion, that, though it was proper to admit it to be given in evidence to the jury, it being the deed set out in the declaration, yet the judgment on the verdict ought to have been for the defendant, for the reasons aforesaid.

The court is farther of opinion, that the note, which is set forth in the bill of exceptions, not being acknowledged to be under the seal of the parties, but under their hands, and being also expressed to be for valuable consideration, (a circumstance not necessary, and unusual, in a bond under seal,) though a scroll is annexed to it, ought to have been received as evidence of payment, to the amount thereof, on the third general plea of payment in the pleadings set out; and therefore the court also erred in refusing to admit it to go to the jury. The judgment is therefore reversed with costs, and the suit dismissed.

‡

Seaied Instrument — Scroll—Necessity of Recognition in Body of Instrument. — Several times, in this series of reports, notes have been written on this subject and the cases in point collected so that more on the subject at this point would be superfluous. See *foot-note*to Clegg v. Lemessurier, 15 Gratt. 108; *footnote*to Parks v. Hewlett, 9 Leigh 511; monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801: monographic *note*on “Deeds” appended to Fiott v. Com., 12 Gratt. 560. The principal case was cited on the subject in Cromwell v. Tate, 7 Leigh 306; Parks v. Hewlett, 9 Leigh 515; Clegg v. Lemessurier, 15 Gratt. 112, 113; Bradley Salt Co. v. Norfolk, etc., Co., 95 Va. 462, 28 S. E. Rep. 567; Smith v. Henning, 10 W. Va. 631; Keller v. McHuffman, 15 W. Va. 78.