
    
      Gordon and Others v. Brown’s Executor.
    Tuesday, November 15, 1808.
    Bonds — Assignment*—Averment of. — An action cannot be maintained by a mercantile company on a bond payable to A. F. his heirs, &c. without averring in the declaration the said bonds to have been given to A. F. for their use. or to have been assigned to them by A. F. or by his legal representatives.
    Same — Same—Same.—The assignee of a bond cannot sue as obligee, but must set forth the assignment in his declaration.
    Same — Variance between Date in Bonds and Declaration — Verdict.— If the bond be described in the declaration as bearing date on the 4th of January, 1773, and the date of the bond produced to the Jury be the 4th of January, 1775, a general verdict for the defendant ought to be sustained.
    Bills of Exception — Signing.—A paper intended as a bill of exceptions to an opinion of a District Court (two Judges being present) ought not to be considered as such, if not signed by both the Judges.
    James Gordon, Walter Monteath, and William Robertson, styling themselves surviving partners of John Glasford, James Gordon, Walter Monteath, William Robertson, Neil Jameson, Adam Fleming and James Glasford, late merchants and partners acting under the firm and style of Adam Fleming, brought an action of debt on a bond in the Williamsburg District Court, against John Colgin, executor of John Brown, deceased.
    The declaration stated the bond to have been executed by the testator on the 4th of January, 1773, to Adam Fleming, and described it as payable to Adam Fleming, without alleging that it had been taken by Adam Fleming, for the benefit, or to the use, of the said mercantile company : and then charged, that nevertheless the said John Brown, or the defendant, his executor, although often required, had not paid, &c. to the merchants ap’d partners above mentioned, repeating their names.
    On the trial of an issue, joined on the plea of “payment by the testator,” the Jury found a verdict for the defendant; no exceptions having been taken by the plaintiffs to the evidence adduced. The counsel for the plaintiffs then moved the Court for a new trial ; which motion being- overruled, they tendered to the two Judges then sitting, a paper which they prayed to be signed and sealed as their bill of exceptions. In that paper it was stated that, on the trial, the plaintiffs had offered in evidence a bond, a copy of which was inserted, and which appeared to be a plain bond from John Brown to Adam Fleming, bearing date the 4th of January, 1775, (nothing being said therein concerning the said mercantile company,) with an indorsement thereon in these words : “Commissioner’s Office, Richmond, April 13th, 1801. I, Carter B. Harrison, surviving executor of James Willison who was executor of Adam Fleming, do assign the within bond to James Gordon, Walter *Monteath, and William Robertson, survivingpartnersof Glasford, Gordon, Monteath and Co. in conformity to a decree of the High Court of the 10th day of March last, and without recourse. Carter B. Harrison.” That the only evidence offered by the defendant was the presumption arising from length of time, and that the defendant’s testator was always aman of ability to pay his debts, and left sufficient property at his death ; also that Adam Fleming did not leave the State of Virginia at any time ; that Carter B. Harrison, James Willison, and Adam Fleming, resided in the same County ; and that Adam Fleming and the defendant’s testator resided within sight of each other, on the opposite sides of James River. To rebut the presumption from length of time, relied on by the defendant, the plaintiffs, besides the act of Assembly passed the 19th of December, 1792, which takes out a portion in the computation of time,  gave in evidence the proceedings in a suit in the late High Court of Chancery, brought on the 23d of March, 1792, by Glasford, Gordon, Mon-teath and Co. of the town of Glasgow, in North Britain, against Carter B. Harrison, executor of James W'illison, who was executor of Adam Fleming, to obtain possession of the bonds, bills, accompts, and books belonging to the said mercantile company, which at the time of his death were in the possession of the said Adam Fleming, whom they stated to have been the acting partner of the said company in Virginia, and to have conducted the whole concerns thereof, for the joint account and benefit of himself and of the said company, for a number of years prior to his death, which happened in the year 1776; in which suit a decree was entered on the 10th of March, 1801, directing “the defendant, Carter B. Harrison, to assign to the plaintiffs certain specialties, (all of which were described, in a report of the Commissioner in Chancery, as payable to Adam Fleming, but were said by the said Commissioner to have been taken for dealings at the store kept under the management of Adam Fleming, as the partner and factor of Glasford, Gordon, Monteath and Co.) upon the ^plaintiffs’ giving sufficient security that they would account for what should be collected, with the parties entitled thereto ; but neither the said Carter B. Harrison, nor the estate of his testator, w e in any manner to be rendered liable by the said assignment.”
    This being the substance of the paper offered as a bill of exceptions, one of the Judges, who was in favour of the motion for a new trial, signed and sealed it; but the other Judge refused, “because his reasons for not granting a new trial the Court of Appeals have nothing to do with; because it is an improper manner of taking the trial from the legal tribunal, and may be continued ad infinitum ; and because the evidence, being often, as in this case, fugitive, can not appear with the same complexion to the Court, as it did on the trial to the Jury, nor can a Judge’s memory or notes be relied on in such case for the accuracy of the statement, which the objecting Judge thinks the bill signed is liable to.” And thereupon the plaintiffs appealed to this Court.
    Williams, for the appellant. The only question is, whether the evidence offered by the plaintiffs was sufficient to take the case out of the presumption. The long suit in Chancery, which lasted many years, to get possession of the bond, together with the circumstance that Adam Fleming, the acting partner, died in 1776, (which was stated in the bill and not denied in the answer,) furnished sufficient grounds to rebut the presumption. The District Court ought therefore to have awarded a new trial ; and the case of Baring v. Reeder shews that this Court will award a new trial when improperly refused by the District Court.
    The Attorney-General, for the appellee. If I am not deceived, there is in this case a preliminary question of great importance never agitated before; whether this is a regular bill of exceptions ?.
    In Baring v. Reeder, the ground of the new trial was, that important evidence offered to the Jury had been excluded *by the Court: but here there was a general verdict for the defendant, and a motion for a new trial was made on the ground that the verdict was contrary to evidence. The paper tendered as a bill of exceptions, does not state all the evidence, and is not signed by both Judges, but only by the Judge in favour of the motion. One very sound objection made by the other Judge, was, that it could not be relied upon asan accurate statement of the evidence; and these are certainly strong reasons against this mode of practice, of excepting to the opinions of Judges refusing new trials ; it being impossible for attornies, merely from recollection, to state the evidence correctly.
    But a paper is not a bill of exceptions unless it be signed by both the Judges. In a County Court it must be signed by the majority of the Justices present: and in a District Court, as two Judges constitute the Court, both must join ;  for the only validity of a bill of exceptions, as to its statement, is derived from its being signed by the Court.
    If the other Judge improperly refused to sign, perhaps the proper remedy would have been by an application to the General Court for a mandamus to compel him to sign.
    The suit in Chancery relied on to repel the presumption was between other parties. Brown was no party to that suit, and nothing was said in it about this bond. The record therefore was not evidence in the suit against Brown’s executor.
    As the bond was payable to Adam Fleming, what prevented him or his representatives from bringing suit, and recovering the money ? And payment might have been made to him or his representatives.
    Williams was about to reply, when Judge Tucker asked whether, on the declaration, the plaintiffs had entitled themselves to recover on this bond ? The bond was to Adam Fleming only ; arid the declaration contained no averment that it was given to him for a debt due to the partnership. The Court or Jury might have gone on the ground that there was no evidence of that fact. Williams observed, that *if A. B. and C. are partners in trade, under the firm and style of A. only, ic will do.
    As to the bill of exceptions; the Judge who refused to sign, does not say that the allegations contained in them were not true. I have always understood that the signature of exceptions by one Judge was enough.
    
      
      Bonds — Assignment.—See monographic note ou “Bonds” appended to ward v. Churn, 18 Gratt. 801; monographic note on “Assignments" appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
    
      
       Declaration — Cause of Action Must Be Shown. — The principal case is cited in Pall v. Overseers of Augusta, 3 Munf. 509, to the point that in civil suits the plaintiff must show a just cause of action, or it will be error, even after verdict.
    
    
      
      Bills of Exception — Signing.—In Adkins v. Globe Pire Ins. Co., 45 W. Va. 385, 32 S. E. Rep. 195, it is said: “As early as Gordon v. Brown, 3 Hen. S M. 219, it was held that ‘a paper intended as a bill of exceptions to an opinion of the district court (two judges being present) ought not to be considered as such, if not signed by both.’ In Com. v. Hall, 8 W. Va. 259, though the record said a bill was signed, but it was not, this court held that ‘a bill of exceptions to the opinions of the court overruling a motion for a new trial, not being signed by the judge, does not become a part of the record, and the evidence therein cannot be examined by an appellate court.’”
      See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
       Sec Rev. Code, 1 vol. c. 76, s. 11, p. 109.
    
    
      
      b) 1 Hen. & Munf. 151
    
    
      
      c) See Rev. Code, 1 vol. c. 44, p. 44.
    
   JUDGE TUCKER.

In this case there is another difficulty. The exception is to the opinion of the Judge who did not sign it.

• Williams. The Court being divided, there was judgment for the defendant; and the exception was to that judgment. The record from the Chancery was admissible. The assignment of the bond was in obedience to the decree.

JUDGE TUCKER. Then ought not suit to have been brought on it as an assigned bond?

Williams. The assignment was only to authorise them to bring suit: but the bond being their own, they ha'd a right to sue upon it as their own. The bill did not pray for an assignment, but only that the bonds, &c. should be delivered up.

Tuesday, November IS. The Judges gave their opinions.

JUDGE TUCKER. The appellants brought suit in the Williamsburg District Court, on a bond given to Adam Fleming, deceased, which was in the usual form, payable to him, his executors, administrators, or assigns; their declaration being in these words: James Gordon, William Monteath, and William Robertson, surviving partners of themselves. J. Glas-ford, N. Jameson, Adam Fleming, and James Glasford, deceased, late merchants and partners, acting under the style of Adam Fleming, complain of John Colgin, executor, &c. of a plea of debt, that he, the said *defendant, render to them, the said plaintiffs, 1581. which he unjustly detains, for that whereas the said John Brown, in his life-time, on such a day and year, &c. by his certain writing obligatory, sealed, &c. acknowledged himself to be held and firmly bound to the said Adam Fleming, in the said sum of 1581. to be paid to the said Adam Fleming, when, &c. in the usual form, without alleging that the bond was made to themselves, by the name and style of Adam Fleming; as perhaps they might, but certainly must have done in order to entitle them to bring an action therefor, unless in the character of executor, administrators or assigns of Adam> Fleming, or of his legal representatives. The Jury found a verdict for the defendant; it is unnecessary to inquire upon what principles, and whether right, or wrong, the declaration not shewing, as it ought, any right in the plaintiffs to bring this action, although, perhaps, they might have sustained an action, if the declaration had been adapted to the nature of the plaintiffs’ case, such as it appears to have been from the matter inserted in the record, of which there is no necessity to take further or more particular notice.

I, therefore, think the judgment must be affirmed.

JUDGE ROANE.

The statute of Westm. 2, respecting bills of exceptions, from which our act seems to be taken, (and the constructions made thereupon,) recognise, as sufficient, a bill of exceptions signed by one of the Justices; but our act varies from it in this particular, and requires that all the Justices, “or the greater part of them present,” shall sign it. This not being done in the present case, we cannot act upon the bill in question, nor take cog-nisance of any of the facts it contains. The case then stands merely upon a general verdict, which we must take to be warranted by the evidence, as the contrary does not appear. I am, therefore, for affirming the judgment; especially as the appellants’ claim to recover as a co-partner, on a bond not alleged in the declaration to have been given to them as such, but rather to have been given to Fleming in *his individual character: and, even if we were at liberty to go into the paper tendered as a bill of exceptions, there is a variance between the bond shewn in evidence, and that declared on, not only in that the bond exhibited has enured to the benefit of the appellants by assignment, of which assignment no mention is made in the declaration ; but also that the bond, as set out in the bill of exceptions, bears date the 4th of January, 1775, whereas the bond declared on is stated to have borne date on the 4th of January, 1773.

JUDGE FEEMING

concurring, the judgment was unanimously affirmed. 
      
       Vid. Baird v. Mattox, 1 Call, 257.
     
      
       See 1 Bac. Abr. 529, Gwil. ed.
     