#### Armistead v. Butler’s Administrator.

Monday, November 17, 1806.

Partnership Demand* — Set=Oif— Goods Delivered to Individual Partner, † — -In an action ol assumpsit for a partnership demand, the defendant cannot give in evidence, as a set-off, the delivery of goods to an individual partner; although, by the direction of such partner, the partnership demand was entered as a credit against the goods.

Appellate Practice — Taking Up Cause Out of Turn.— The Court will take up a cause, out of its turn on the docket as a delay case, if the only points in it had in another case been decided by the Court, against the appellant.

*

Partnership. —See monographic *note*oil ’‘Partnership” appended to Scott v. Trent, 1 Wash. 77.

†

Se-Oil - Joint against Separate Demand.— Numerous cases might be. cited from *the*Knglish books, irom the decisions of our sister states, and from the federal court, concurring *mm none,*in declaring that joint and separate demands cannot be set off against each other; and the decisions in our own court have been uniform and strong to the same point. Scott v. Trent, 1 Wash. 77; *Armistead v. Butler. 1 Hen. & M.*176; Wales v. Moore, 5 Munf. 888. Surely, these cases ought to be considered as leaving this point no longer open to question. — Judge Carr, delivering the opinion of the court in Porter v. Nekervis, 4 Rand. 363. And, in Choen v. Guthrie, 15 W. Va. 102, Judge Grbuix, who delivered the opinion of the court, said: "It is too well settled to admit of any controversy, that at common law a joint and separate demand cannot be set off against each other. See Porter v. Nekervis. 4 Rand. 363; Scott v. Trent, 1 Wash. 79; *Armistead v. Butler's*Adm’r, 1 *Hen. M.*176; Ritchie *&*Wales v. Moore, 5 *Munf. 388.” To*the same effect, the principal case is cited in Gilliat v. Lynch, 2 Leigh 505. and *foot-note, foot-note*to Rose v. Murchie, 2 Call 400.

This was an appeal from a judgment of the District Court, held at King and Queen Court-house.

Pannill and Butler, as joint partners, brought indebitatus assumpsit against the appellant, for freight and demurrage of a vessel. The suit having abated as to Pan-nill, by his death, it was prosecuted by the surviving partner. At the trial, “the defendant offered to prove payments made to Pannill, one of the acting partners, (by crediting his account, for goods sold and delivered to the said Pannill, by the directions of the said Pannill, by the amount of what he was owing, on account of freight for employing the said vessel of the plaintiff’s,) but the Court refused to let this evidence go to the jury.” To this opinion the defendant excepted; and, a verdict and judgment being had against him, he appealed to this Court. The appeal was entered on the docket on the 11th day of June, 1803. *And now Hay, for the appellee, moved to take it up, out of its term, as a delay case, conceiving that the only point arising in it had been so fully settled in the case of Scott v. Trents, (1 Wash. 77,) that no lawyer would undertake to argue it.

Randolph, for the appellant, at first supposed that this cause would require argument. But afterwards, he admitted, that upon a more minute inspection of the record, he could not distinguish it, in principle, from the case of Scott v. Trents, determined by this Court. And if that was to be considered as a ruling case, he should submit the cause, with this suggestion only, whether the delivery of the goods to Pannill, at his *90request, and direction by him to enter them against the partnership demand, did not amount to payment.

By the -whole Court, (absent Judge Fleming,) the judgment was affirmed.