
    Tuttle v. Eskridge.
    Saturday, June 22d, 1811.
    Partnership — Evidence—Deed of Lease from One Partner. — A deed of lease from one of two copart-ners, sealed with his seal, and in terms, "binding- himself only, is not admissible evidence in support of an avowry laying a demise by the copartners, notwithstanding the deed be expressed as “for himself and his partner,” and it be proved that the other partner knew of the ■demise, and was satisfied with it.
    See the case of Shelton v. Pollok & Co., 1 H. & M. 423, to a similar effect.
    In an action of replevin in the county court of Fairfax, by William Eskridge, surviving partner of Charles and William Eskridge, against William Tuttle, bailiff of Morriss and Mitchell, for a distress made by the said bailiff for rent arrear; he filed his avowry, acknowledging the taking the goods, at the place, &c. for rent due, by virtue of an agreement of lease sealed with the seals of *the said Morriss and Mitchell. The plaintiff (among other pleas) having pleaded non demisit in modo et forma, the defendant in his replication said that Mor-riss and Mitchell did demise the premises, in the avowry mentioned, to the said Charles and Willihm Eskridge in manner and form as stated in the avowry. Issues being joined, the counsel for the defendant, at the trial of the cause, offered in evidence an instrument of writing in these words: “Articles of agreement made and entered into, this 6th day of August, 1801. between Robert Morriss, for himself and Adam Mitchell, of the one part, and Charles Eskridge, and William Eskridge, of the other part, witnesseth that .the said Robert Morriss hath rented to the said Charles and William Eskridge, their houses and lots which they purchased of William Eane, jun. in the town of Centre-ville, for the term of six years from the first day of October next ensuing, for which said houses and lots the said Charles and William Eskridge hereby oblige themselves to pay to the said Robert Morriss, or his assigns, the sum of eighty pounds annual rent, and to return the said houses and lots, at the expiration of the term, to the said Robert Morriss, in good tenantable order. The said Robert Morriss obliges himself to enclose the lots with a good sufficient post and rail fence,” &c. Signed “Robert Mor-riss, (seal,) Charles Eskridge, (seal,) William Eskridge, (seal.)” He also proved, by the testimony of a witness, that Adam Mitchell was a copartner in trade with Robert Morriss, whose seal is affixed to the said instrument; that the property described in the defendant’s avowry was purchased out of the copart-nership effects ; that the said Adam Mitchell was informed of the demise made by the said Morriss to the plaintiff, and was satisfied with it ; and that the tenants occupied the premises to the mouth of April, 1803. Whereupon the counsel for the plaintiff prayed the court to instruct the jury, that the evidence so offered was not admissible to prove the demise laid in the said avowry ; *but the court, being divided in opinion, did not give the instruction. The jury found the issues for the avowant, and that the rent distrained for was justly due at the time of making the distress in the avowry mentioned. The court accordingly entered judgment for the avowant for double the rent in arrear, and distrained for, and the costs, agreeable to the act of assembly in that case made and provided,  The plaintiff appealed to the district court held at Haymarket, where the judgment was reversed, and no farther proceedings directed. The defendant then appealed to this court.
    Call, for the appellant.
    No counsel for the appellee.
    
      
       See monographic note on “Partnership” appended to Scott v. Trent, 1 Wash. 77,
    
    
      
       Rev. Code, v. 1, c. 89, s. 15, p. 155.
    
   Monday, September 23d.

JUDGE BROOKE

pronounced the opinion of the court.

The deed offered in evidence to the jury being essentially different from the deed set forth in the conusance and replication of the defendant, the court is of opinion that the county court erred in not instructing the jury (upon the application of the counsel for the plaintiff) that it was inadmissible evidence ; and approves of the judgment of the district court, so far as it reversed the judgment of the county court ; but is also of opinion that the district court erred in not sending the cause back to the county court for further proceedings to be had therein, with an instruction that the deed was inadmissible evidence. The judgment of the district court must, therefore, be reversed, and the cause now sent back to the superior court of the county, where the verdict and judgment must be set aside, a venire facias de novo awarded, and the cause sent to the county court with the foregoing instruction.  