
    Richard Lucas vs. Sanders & McAlilly.
    One co-partner cannot bind another, by an obligation under seal, without express authority given or inferable from their course of dealing.
    Neither can a recovery be had against one, upon a paper purporting to have been made jointly, as upon a joint and several obligation.
    Before Butler, J., at Chester, Spring Term, 1841.
    This was an action of debt, on the following paper:
    “ One day after date, we promise to pay Richard Lucas, or his order, three hundred dollars, for value received. Witness our hands and seals, May 11th, 1836.
    “ Sanders & Egger, [l. s.]
    George McAlilly, [l. s.]”
    *It was proved that the signatures were made by Egger, in the name of Sanders & Egger, at the time they were in co-partner-sliip, and by McAlilly. On the night that the note was delivered to payee, Egger left the State, and this is an action against E. Sanders & George McAlilly. The declaration alleges that the note was made by Sanders & McAlilly, (Egger being out of the State.) The evidence was that Sanders did not sign the note; and the effort to show that he had authorized Egger to sign it for him, and for the firm, under seal, entirely failed, and the question made was, whether the plaintiff could recover against McAlilly alone. I held that he could not.
    The plaintiff moves to set aside the nonsuit, and for a new trial:
    1. Because his Honor, the presiding Judge, decided that the plaintiff could not recover in this action, the suit being brought on a joint sealed note, executed by Egger, in the name of the firm of Sanders and Egger, and by George McAlilly, Egger not sued, (he being without the limits of the State.)
    
      See 10 Rich., 151. An.
    
    2. Because the Court decided that the plaintiff could not recover in this suit against George McAlilly.
    3. Because the decision of the Court was contrary to law and the evidence in this case.
    
      M. Williams, for the motion.
    This case was brought under the Act allowing joint obligors to be sued, when one of the parties is out of the State. Cited Fleming vs. Dunbar, 2 Hill, 532.
    One co-partner can bind the firm, where it is shown that the profits arising from the contract went into the co-partnership. Lockhart vs. Bell, 2 Hill’s Rep. 422; 1 Saunders’ Plead.
    
      Gregg and McAlilly, contra,
    offered no argument.
   Curia, per

Butler, J.

The evidence in this case was entirely satisfactory, that Sanders had never given Egger express authority to subject him to liability by an obligation under seal, and without such authority, either expressly given, or inferable from their course of dealing, Sanders could not be made liable on such a paper. Whether the paper in question* could be regarded as the joint obligation of Egger & McAlilly, upon which one might be liable, the other being out of the State, is a question upon which I give no opinion. The case, as it now stands, is a joint action against Sanders & McAlilly. It is alleged that they made the note, when in fact, and in law, they did not. The position taken is, that in a joint action on a paper purporting to have been made jointly, a recovery may be had against one, as upon a several obligation. This is opposed to general authority, and express adjudications of the State. See Ives vs. Picket, (2 McC. 271;) Lockhart vs. Bell, (2 Hill, 422.)

Motion to reverse Circuit decision dismissed.

The whole Court concurred.  