
    Garland v. Davidson.
    Friday, March 18th. 1812.
    Debt —Action against Parties — Declaration -Averment.—A declaration in debt against two partners in trade, charging that one of them executed the bond for himself and another, (without any other averment,) is too defective to support a judgment against such other partner, though he pleaded payment, and a verdict was found against him. See the case of Ball v. Dunsterville and another, 4 T. R. 313; from which it appears that the proper mode of declaring in such a case is, to state that the bond was made “by the defendants, sealed with the seal of one of them for and on behalf of himself and the other, and by the authority of the other. ”
    
    In an action of debt against William Walker and Clifton Garland, merchants, and partners, the declaration described the bond as executed by Walker, for himself and Garland. The plea of “payment” was put in by Garland alone as surviving partner. Verdict and judgment for the plaintiff; to which a writ of supersedeas was awarded by a judge of this court.
    Wirt, for the plaintiff in error.
    This is almost the case of Shelton v. Pollock & Co., 1 H. and M. 423. There is no averment in the declaration that Walker & Garland bound themselves to pay the money. An undertaking by inference or implication is not sufficient: there must *be a positive averment,  One partner cannot bind another by his deed.
    
    Williams, contra.
    This is not like the case of Shelton v. Pollock & Co., in which no plea was filed, but judgment was entered in the clerk’s office. The plea of ‘ ‘payment” admits the execution of the bond. The court, therefore, will not inquire whether Garland sealed it or not. The plea admits that Walker was authorized to seal it for him. In 7 T. R. 207, the plea was non est factum.
    Wirt, in reply.
    The declaration itself does lay a cause of action. On the face of the declaration, one partner is said to have given bond for the other; which he could not do, so as to bind him.
    
      
      See monographic note on “Debt, The Action of” appended to Davis y. Mead, 13 Gratt. 118; mono-graphic note on "Partnership” appended to Scott y. Trent, 1 wash. 77.
    
    
      
      it appears from that case, that a parol authority from one partner to another to execute a bond for the partnership is good, if it be executed in his presence. Otherwise, it would he necessary to prove such authority hy a power of attorney under seal. See7T. R. 209, 210, citing Horsley v. Rush& Tollotson.—Note in Original Edition.
    
    
      
       New doctrina placitandi, p. 180, Styles 91.
    
    
      
       Lex Mercatoria Americana, p. 457, Harrison v. Jackson; 7 T. R. 207, Gerard v. Basse, 1 Dallas, 119.
    
   Wednesday, March 18th,

JUDGE ROANE

delivered the court’s opinion.

“The court (not deciding any other question occurrihg in this case) is of opinion that the declaration is defective in this, that it is not expressly averred therein that the appellant Clifton Garland, or the firm of Walker & Garland, promised to pay the debt in the declaration mentioned; but that William Walker only so promised. The judgment is, therefore, to be reversed, and entered for the appellant.”  