
    [The following case was accidentally omitted to be inserted in its proper place, among the cases of the last Term.]
    Thos. Fleming v. Francis F. Dunbar.
    
      Before Mr. Justice Earle, at Barnwell, Fall Term, 1838.
    
    rulóos8 tifa”one of several part-tiio” rmby deeí but where thd i»e<th0s presence thoruVf'the™" diere'M°thc'ev°i-donee authorises that such autho-ven,'ufe11 act sóf one win be con-of etho 'others: nltehasbeon110/1 von byono0paftI deed "of disso'/ution,executed by wh'ichth'c"debts and em™“'ated b" paM°i)y each of the partners, the noto in question is set down as a debt owing by the firm; it was held, that this was an ac-knowledgement of the legal obligation of the note on both partners, from which it must be inforrodthat the partner who gave it had authority to exe-
    This was an action of debt against the defendant, as survivor of Redfield & Dunbar, a late mercantile firm, on a sealed note, executed by Redfield in his lifetime, to the plaintiff, for $411 20, with a credit of $200, 5th March, 1831. As evidence of the confirmation of the sealed note by the defendant, P^a*nt^' gav0 in evidence the deed of dissolution of the partnership, executed by both partners, dated February 1831, in wh¡ch the debts of the firm are enumerated, and certain of them set over and are to be paid by Dunbar, and the rest, including a not'e Walton and this of the plaintiff, are assigned to Redfield; and it was proved that references were held before the Commissioner in Equity, on the estate of Redfield, at the instance of cre-^'tors> an<^ that Dunbar had offered a claim for a payment made by him on the note to Walton, which, by the deed of dissolution, Redfield was to pay. But it did not appear that the defendant knew at this time that the debt now sued for was under seal,
    The defendant moved for a nonsuit, on the ground that one co-partner cannot bind another by writing under seal. His Honor held that the evidence of assent or confirmation was not sufficient; that a sealed note is not within the scope of the partnership dealings, which aro always carried on by negotiable paper, and that it would bo of dangerous consequence to hold that partners might bind each other by contracts not subject to the statute of limitations. He, therefore, granted the motion, and in support of his opinion referred to 4 T. R. 313 ; 7 lb. 207 ; 2 Cain, 254 ; 3 John. Ca. 180.
    The plaintiff now moved to set aside the nonsuit, on the ground that the evidence was sufficient to have authorized the presumption that authority had been given by the defendant to his partner to execute this note ; or that defendant had assented to it and confirmed it after it was executed.
   O’Neall, J.

The general rule is, that one of several co-partners cannot bind the firm by deed ; but there is an exception to it recognized in the Courts of this State.

Bellinger, for the motion.

Patterson, contra.

In the case of Saunders v. Hughes, decided at this place in December Term, 1828, Judge Nott, after stating the general rule, as 1 have done, says, “ yet where it (the execution of the deed) is done in the presence of, or by the authority of the other, the act of one will be considered the act of both.”

As that case, like many others of its day, settling principles of great importance to the country, may never be reported, it will be well to state the case, so that it may be seen that the principle extracted was not a mere dictum, but an adjudication of the point in controversy. The action was debt on a single bill, (or, as it is more commonly called, a sealed note,) against Joseph Hughes, as the survivor of Joseph Hughes and William Hughes, merchants, trading under the firm of Joseph Hughes Co.

The name of the firm to'the single bill was proved to be in the hand-writing of William. It was proved that Joseph Hughes, after the single bill was executed, admitted it to be just, and promised to pay it: so, too, that he had said it was given for a partnership debt, and he and William’s estate was liable to pay it. The presiding judge ordered a nonsuit; and the motion was to set it aside, which was unanimously granted.

If the deed executed by one co-partner, is executed in the presence, or by the authority of the other, it will be considered the deed of both. The question whether it is to be considered the deed of both, is oftentimes to be solved by a variety of facts : we have seen, from the caso of Saunders ». Hughes, that after acknowledgements will be enough to justify the jury in concluding that the deed sued on was the deed of both. Judge Nott, in that case, speaking of the evidence which I have already stated, said, “ The evidence in this case may have authorised an inference that such authority, (i. e. authority from the partner who did not in fact execute the deed,) had been given, and that was a question for the jury.” ‘ '

In the case before us, on referring to the deed dissolving the firm of Redfield & Dunbar, and which was executed by both partners, the debt now in suit is set down as a debt (to use the words of the deed) “owing by said firm.” This is a plain ac-knowledgement of the legal obligation of the deed on both partners ; and from it we must infer that Redfield had authority from Dunbar to execute it.

The motion to set aside the nonsuit is granted.

Johnson, J. concurred.

Harper, J. absent.  