#### Neal W. Horton v. Samuel Child.

Where a partner executed a bond in the name of the firm, and upon being informed it did not bind hie partners, took it back, and with the consent of the obligor, removed the sea!, and rc-delivered it with an intent to hind the company, it is effectual as their promissory note.

Assumpsit, in which the plaintiff declared against the defendant, as a partner in the house of William 1). Murphey, & Co. in two counts.

1st. Upon a promissory note, dated November 20th, 1829, payable at twelve months, for $251 73.

2d. For goods, wares and merchandise, sold and delivered.

Píea — Mojí assumpsit.

On the trial before Norwood, Judge, at Orange, on the last circuit, the plaintiff produced in support of the first count of his declaration, an instrument signed by William D. Murphey, & Co. in all respects similar to that declared on, excepting that after the signature, it had a scrawl and the word “ seal” written within it, which liad been erased by drawing a pen through it; and adduced testimony tending to prove that Murphey had declared that he executed the instrumentas a bond, not knowing that one partner could not bind the firm by deed, and that in order to obviate this objection he had drawn a pen through the word “ seal” written within the scrawl, and had handed the instrument to the plaintiff as the promissory note of the company.

The proof upon the second count in the declaration, was perfectly clear.

For the defendant it was contended, 1st. That the instrument was a bond upon which this action could not be sustained ; and that the question whether the instrulnent was a bond or a promissory note, was one which must be determined by the judge, upon inspection, and that parol proof could not alter its character,

2d. That if the instrument ever had been sealed, and the seal afterwards destroyed, the whole was annuled.

3d. That although the jury might believe that the goods had been bought by the copartnership, yet that *461tbe simple contract which arose therefrom liad been merged in the specialty, and therefore this action could not be maintained.

question for the court; but wheth-Cr it has, or has Iditor thclury" Whether an instrument be a deed or not, is a

His Honor declined deciding upon inspection, whether the instrument was a deed or not, but submitted that question, upon the evidence, to the jury, informing them that if they should find that the scrawl made on it, bad originally been a seal, and that Murphey. afterwards drew a pen through it, with an intent to destroy it as a bond, and then delivered it as the promissory note of the firm, it was valid as a note. He also informed them that if the goods were purchased by the firm, the several bond of Murphey, given for their price, did not merge the debt as to the copartnership.

A verdict was returned for the plaintiff and the defendant appealed.

./. W. Norwood, for the plaintiff.

Nash, Winston & W. A. Graham, contra..

Danieu, Judge.-

After stating the case proceeded as follows : — If the instrument declared on in the first count, had originally been the bond of Murphey, and ho had, with the consent of the plaintiff, taken off the seal, and then delivered the writing as a promissory note to pay a partnership debt, with the name of tbe firm signed to it, we can see no reason why it should not be good in law to bind all the partners of the firm. There is no evidence to shew that the plaintiff took the sole bond of Murphey in payment of, or as a complete discharge of the debt due from the firm — tbe. circumstance of the name of the firm having been originally signed to the paper, negatives any inference that the plaintiff meant to look to- Murphey alone, for the payment of the debt. Whether the instrument is in the form of a deed, is certainly a question of law, and must be decided by the court. Usually the court can determine by inspection, whether the instrument be, or be not a deed; but if it be whether that which hath the resemblance of a . seal, be in truth such, or whether the seal has been destroyed, or if destroyed, whether sqch destruction- was *462designed or accidental, the judgment of the court must tiien depend on facts not discernible by inspection, and' ’of course these facts must be found by the proper tribu-Inal, the jury. Cancellation or destruction is an equivocal act, and depends on how much is done, and the quo animo with which it was done. There must be an act accompanied with an intention. If the intention be to destroy, and the whole act be done which was intended as an act of destruction, there is a cancellation or destruction, although a part of the thing remains. But if the act done, be not all that was intended to be done for that purpose, then is the attempted destruction wholly ineffectual. (Windsor v Pratt, 6 Eng. C. L. R. 299, Den ex dem, Perkes v Perkes, 5 Ib. 353, Bibb v Thomas, 2 Black. Rep. 1043.) The circumstance that the scrawl which surrounded the seal now appears untouched by the obliteration, did not in law prevent that act from being a destruction of the seal, and of course a cancellation of the bond of Murphey. Suppose in this case instead of a scrawl surrounding the word “seal,” there liad been a distinct impression of wax affixed to the paper as the seal of Murphey, and it had been agreed by him and the plaintiff, that the seal should bo torn away, and the paper re-delivered as a promissory note, and in the act of destroying the seal a minute portion of the wax had still adhered to the paper, can it be doubted that these facts being ascertained, the instrument would be declared no longer a deed ? We think that the judge acted correctly in refusing'to decide upon inspection, whether the instrument was a deed or not, and in leaving the evidence of the disputed facts connected with the alleged destruction of the seal to the jury, and in the instructions which he gave, respecting the operation of the law upon the facts, as the jury should find them to be. Tho jury found in favor of the plaintiff on both counts in tho declaration.

The simple co*partnership is not morse<1 h7 the prctnekb°nd&

It has been contended here, though not with much earnestness, that the simple contract arising upon the sale of the goods, had been merged in tho spe-malty which Imd been given by Murphey, and that the *463action of assumpsit could not now be maintained, and that the plaintiff should not have been permitted to recover 011 second count; The principle is certainly correct, that when a person indebted by simple contract gjveg a ]j0ni] |'ol. that debt, the simple contract is merged in the specialty, which is an instrument of higher dignity in the eye of the law. But it is perfectly settled that the giving of a bond by one copartner for a debt of the firm, does not extinguish the original debt as to any other copartner. The bond 'merges the simple contract °nly as to him whom it binds, and a partner cannot by deed bind others beside himself. (Spear v Gillett, 1 Dev. Eq. cases, 466, Gow. 76.) We therefore are of opinion that th,e judgment should be affirmed.

The case of Spear v. GiUet, 466,) approved.

Pee, Cum am.' — Judgment aepirmed.