Anderson v. Bullock & Marshall

the president pronounced the following opinion of this court. The declaration in this case is upon a bond executed to fiustint as acting partner to the late house of Austin and An-, [444] derson. The deed, which is alleged in the declaration to be an assignment of that bond to the appellees, is executed by Austin in his own right, and, though it may include debts due to Austin in that character, cannot be considered as including debts due him as acting partner aforesaid. The courtis therefore of opinion, that, though it was proper to admit it to-be given in evidence to the jury, it being the deed set out in the declaration, yet the judgment on the verdict ought to have been for the defendant, for the reasons aforesaid. The court is farther of opinion, that the note, which is set forth in the bill of exceptions, not being acknowledged to be under the seal of the parties, but under their hands, and being" also expressed to be for valuable consideration, (a circumstance not necessary, and unusual, in a bond under seal,) though a scroll is annexed to it, ought to have been received as evidence of payment, to the amount thereof, on the third general- plea of payment in the pleadings set out; and therefore the court also erred in refusing to admit it to go to the jury. The judgment is therefore reversed with costs, and the suit dismissed.