
    *Rose v. Murchie.
    [October Term, 1800.]
    Partnership — Set-Off—Case at Bar. — A is indebted to D, co. by bond; A dies, and at the sale of his estate, by his executors, F the acting partner of D, F & co. buys a slave; which he carries to his own plantation and there continues him: — The amount of the purchase for the slave is a good discount against the bond.
    This was an appeal from a decree of the High Court of Chancery, where Rose as executor of Banister brought a bill for relief against Murchie surviving partner of Donald, Fraser and company, James Fraser and David Maitland and Robert Maitland his attornies in fact. Stating, that on the 7th of January 1788 Banister gave his bond to Donald, Fraser & Co. for ^200., being the conjectural balance of an account, but in fact only ¿£172. 19. 6%- according to account was due. That other transactions since (as per account annexed,) will reduce it to ;£43. 17. 7. That they have assigned the bond to Fraser, who was apprized of the errors, and promised to account, but had not. The bill therefore prays an account, and for general relief.
    The answer of Murchie, states the assignment to Fraser, but that he was informed it was given for an unsettled account, and that it was taken without recourse. That he told him one of the discounts set up by the plaintiff was for a negro bought by Simon Fraser who was a partner of Donald, Fraser & Co. but that the defendant thought Simon Fraser only and not the company was liable for the negro.
    The answer of Fraser, states, that he knows nothing of the transactions mentioned in the bill, except that Donald, Fraser & Co. being indebted to Thomas Fraser & Co. of which last named house the defendant is a partner and their agent and assignee, the defendant Murchie as surviving partner of Donald, Fraser & Co. assigned the said bond to him in discharge of the debt due Thomas Fraser & Co.
    *The answer of the Maitlands, states, that they assisted in the settlement between James Fraser and Donald, Fraser & co. : And that the bond was assigned without any knowledge of any equity against it.
    The deposition of a witness, proves that Simon Fraser was the acting partner of Donald, Fraser & Co.
    Another witness, proves that there were mutual dealings between Banister and the company, and between the plaintiff and the company after Banister’s death. That Simon Fraser bought two sows and a negro named Rochester, at the auction by the executors of Banister’s estate. That bonds were generally taken of the purchasers at the sales except in a few instances, where discounts were admitted; that if Eraser's bond had ever been applied for, he should probably have been the person who made the application as he took several bonds from purchasers residing in the town of Petersburg. That he charged the two sows and the negro in the following words ‘ ‘Simon Fraser 2 do. (sows being mentioned above) at 48s 6 spotted and black with one ear. Simon Fraser, Rochester ¿83. 5. 0. ”
    Another witness says, that Rochester was always kept at Fraser’s plantation, and considered as his property.
    The Court of Chancery referred the accounts to a commissioner, who corrected several articles, but submitted it to the court whether credit for the two sows and the negro Rochester was to be given the plaintiff?
    The Court of Chancery confirmed the report and allowed the plaintiff a credit for the two sows and the liegro.
    
      Upon application fora bill of review, the cause was reheard by consent. When the Court of Chancery was of opinion, that the plaintiff was not entitled to a credit for the two sows and the *negro, and decreed accordingly. From which decree Rose appealed to this Court.
    Hay for the appellant.
    Although it is generally true, that a debt due from an individual partner cannot be set off against a company demand, yet there are strong reasons to believe, from the circumstances of the case, that the purchases here were intended to be on account of the company debt; and, under that impression, that the executor took no bond, which indeed was never offered by Fraser: Who thereby shewed his own conception of the transaction. Consequently, it would be unreasonable, that the confidence, reposed in him by the executor, should expose the latter to the loss of the debt.
    Bennet Taylor contra.
    It is a general principle, that if one does an act, it is as an individual, unless it be shewn, that he did it in a different character. Therefore Rose ought to have shewn, that the purchase was made in his social, and not in his individual character; or else he reverses the general principle. But, in this case, there is the most conclusive proof, that the purchase was actually made in his individual capacity, and not as a ■ partner; for the articles are set down to him, and not to the company; and the slave is proved to have been carried to his own private estate, and there kept as his own property: Which removes every possible presumption, that the purchase was made, for the benefit of the copartnery. Besides the articles bought were not of a mercantile nature, or purchased in the course of trade; and therefore the company could not be charged with them. Because a transaction of a single partner, unconnected with the nature of the business, does not bind the company, 7 Term. Rep. 207: And this principle is correct ; for otherwise it would be in the power of one partner to ruin the concern, by improvident schemes, of which they have no knowledge, and of which, consequently, their approbation, cannot be presumed.
    *Wickham in reply.
    Although an individual partner will generally be understood to buy for himself, yet circumstances maj rebut it. The executor might think the purchase was only a continuance of the transactions between his testator and the company; and if Rose had called for pa3ment or a bond, Fraser would certainly have refused, whilst the company’s debt remained unsatisfied.
    Cur. adv. vult.
    
      
      Partnership — Set-Off. — Joint and separate demands cannot be set off against each other: nor can partnership and separate demands be set off against each other. Porter v. Nekervis, 4 Rand. 359; Scott v. Trent, 1 Wash. 77; Armistead v. Butler, 1 H. & M. 178: Ritchie v. Moore, 5 Munf. 388,7 Am. Dec. 688 But see Dunbar v. Buck, 6 Munf. 34, and the principal case cited in Gilliat v. Lynch, 2 Leigh 505.
    
   PENDLETON, President.

Delivered the resolution of the court to the following effect:

In January 1788, Banister gave his bond payable to Donald, Fraser and company for ^200, the supposed balance of dealings of Banister with that company, and another mercantile house of Robert Donald and company, blended together; in both which Simon Fraser was the active partner, and as such took the bond.

In 1793, Murchie assigned this debt, with a large number of others due to Donald, Fraser and company, to James Fraser as-signee of Thomas Fraser and company of Britain, for a large debt due to them from Donald, Fraser and company; which debts James Fraser appointed the Maitlands to collect, who sued Rose the executor of Banister, upon the bond in the name of James Fraser as assignee as aforesaid. Rose confessed judgment, reserving his equitable defence; and filed this bill stating, that Banister’s bond, intended to include the balance due to both companies, was taken, without settlement, for a conjectural sum, far exceeding the real balance. He therefore prays an injunction ; that the accounts may be adjusted, and the real balance paid.

Upon the several answers coming in, a replication is filed, and depositions taken. An order was made by consent, referring it to a commissioner to settle the accounts between the parties. Commissioner Hay reports the settlement, stating a balance of ¿41. 3. 7. to be due from Banister’s estate, *unless the estate was entitled to a credit of ¿83. 5., for a slave and two sows, purchased by Simon Fraser at a public seal of that estate. If that was allowed, the balance of ¿43. IS. would be due to the estate, with interest from April 1790.

To this article, the dispute between the parties is confined: All other parts of the report being submitted to.

The facts are, that Simon Fraser was'the acting partner of both companies; that, with him, the extensive dealings of Banister were transacted; and all the other articles, credited in the company’s account, delivered to him or his order; and no account subsisted between them in the individual character of Fraser. And that,Fraser, at the public sale, purchased the articles, which are charged to him, without any agreement or even conversation, about the application of the money.

Bander, who acted as clerk at the sales, says, he expected the amount was to be credited in the company’s accounts, not then liquidated, and gives his reasons. That the sales were upon credit, the purchasers giving bond and security; which was generally given, except where the executor allowed discounts to creditors. That he took the other bonds, and was not directed to take Frasers; nor was one required, as far as he knows, or believes.

M’Donald says, that the slave purchased was always kept at Fraser’s plantation, and considered as his property, until he and other slaves, were conveyed, in a deed of trust from Fraser, to the Maitlands and others.

Upon these facts the commissioner reported his opinion in favour of the amount being charged to the company; and the Chancellor in his first decree confirmed it, making the injunction, to the judgment on the bond, perpetual; and decreeing the defendant to paj' the £43. IS., with interest *from April 1790, (the day of payment for the sales) and costs. Upon a rehearing, by consent as on a bill of review, the credit was disallowed; the injunction dissolved, as to the £41. 3. 7., interest and costs; and perpetuated as, to the residue. The appeal is from the latter decree.

The rule, that the private debt of a partner cannot be set off against a company debt, does not apply; since the question is, whether, it was such a private debt, or a payment, of the company’s debt to that partner, who, it is agreed, had authoritj' to receive it?

In Scott and Trent in this court, the articles, for which the discount was claimed, were confessedly delivered to the acting partner, on his private account; and, on a state of them, it was indorsed, that, when_ settled, the balance was to be credited in’ the companys account. That private account had not been adjusted, so as to fix the balance; and, on that ground, the discount was not allowed. But even there, the court said, Scott might be relieved in equity. We are in that court.

In considering this subject, the court viewed the situation and practice of the country, as to the present subject. Simon Fraser, or any other man, is the ostensible merchant opening a store, for retailing goods and purchasing commodities: It is the store, which gives him credit, and that is answerable for any commodities furnished, whether it belongs to him alone, or to a company of which he is a partner, or for whom he acts as factor. True it is, if the company fails, the creditor may resort to the agent or factor, on the common principle of master and servant, where both are liable. As to the article furnished not being within the nature of the trade, how is the planter to know *the objects of the trade? He takes goods, and, to pay for them, sells the merchant whatever he is willing to receive; tobacco, wheat, a horse, a slave, or any thing else, for which he is usually credited in the store' books, without enquiry for whom purchased, or how applied. Here the slave was sold to Fraser, still the acting partner, and no bond was required, as in the case of a creditor. He was nota creditor; in his private character, but as a partner of the company; and, in the store book, the estate was entitled to a credit for the amount; which leaves the estate a creditor of Donald, Fraser and company, for £43. IS. ; to whom, or to Simon Fraser’s estate, the executor of Banister may resort for satisfaction ; but he has no claim, as to that, upon the defendant James Fraser; although he is bound, so far as the debt assigned him was paid.

The last decrees are to be reversed with costs, and the first affirmed. 
      
      1 Washington's Rep. 77.
     