#### J. M. HEATH AND AVA HEATH, BY THEIR GUARDIAN, v. R. J. GREGORY.

A. sealwl note, signed by one of two partners, ?.annot be given in evidence* to establish “ an account stated” in a suit brought against the partner who did not sign it.

This was an action of Assumpsit, commenced by a warrant front a Justice of the Peace, and brought by successive appeals to the Superior Court of Wayne county, where it was tried before hi* Honor Judge Ellis, at Spring Term, 1854.

.Upon the trial, the plaintiffs offered in evidence the following sealed obligation:

“ Twelve months after date, we, or either of us, promise to pay Wm. B. Taylor, Guaidian to the minor heirs of Mark Heath, dec’d, the sum of sixty two dollars, for value received, as witness our hand and seal, this 6th day of Dec. 1845.

“ Gregory & Heath, [seal.]

(i H. S. Hamlet, [seal.]

“ Wm. H. Taylor, [seal.]”

*418It was admitted that tbis bond was signed and sealed by Heath, the partner of Gregory, in the absence of the latter, and without any sufficient authorityfrom him to execute a deed. The plaintiff proved that the defendant and Heath were partners in trade; that this note was given for the hire of a slave, the property of the plaintiffs, who were then minors; that Taylor, the obligee in the bond, was then their guardian, and the slave was hired from him. The slave went into the employment of the defendant and Heath, and served with them the term for which he was hired.

It was conceded by the plaintiff’s counsel that he could not recover upon the bond against the defendant (Gregory,) because he had not executed it; but he contended that the seal should be regarded as surplusage, and the paper writing treated as a liquidated and signed account, for which they were entitled to recover in this action, commencing by warrant, though the sum exceeds sixty dollars; that the proofs explained the paper writing, and showed for what the account had been rendered.

The defendant objected to the recovery—

1st. Because the bond was not evidence of a liquidated account ; that, if read at all, it must be read as a bond, and- as such it was not binding on him, because he had not executed it.

2d. That, if it be regarded as a liquidated and signed account, then it must be regarded as an account with Taylor, the obligee in the note.

3d. That the note did not specify any thing which could be the subject of an account; that it was merely a promise to pay a sum of money, and could not be explained by the evidence.

By the consent of parties, a verdict wras entered for the plaintiff, subject to the opinion of the Court, upon the question reserved, as to the plaintiff’s right to recover upon the facts presented.

Subsequently, the Court, being of opinion that the plaintiff could not recover, set aside the verdict, and directed a non-suit to be entered, according to the agreement of the parties, from *419which judgment the plaintiff prayed an appeal to the Supreme Court.

JETusted and Dortch, for the plaintiff,

argued as follows:

1st. The warrant was originally brought for the “ sum of $62 due by note,” and in the County Court was amended to “ assump-sit ” for the same amount. It was clearly within the jurisdiction of a single magistrate at first; and it is contended that the amendment allowed during the pendency of the suit could not oust that jurisdiction ; in analogy to the known rule in equity, that when the Court for any purpose has jurisdiction of a case, it holds that jurisdiction for all other purposes, whether this would entitle the party to equitable relief or not.

2d. Though it is conceded that Heath did not and could not bind the defendant Gregory by the seal, as in a bond, still it is contended, that as the defendant would have been bound in assumpsit, had there been no seal, there is no inconsistency in confining the effect of the seal to Heath himself, whom it certainly bound, and rejecting it as to Gregory, who never adopted it, and whom consequently it did not bind. It was a seal as to Heath, and not as to Gregory. Heath was bound in a bond, and Gregory in assumpsit, as if he had signed his own ' name to the instrument, without a seal.

3rd. At all events, this instrument is effectual as a liquidated account, signed by the party to the bond thereby. The unau-thorised use by Heath, of a seal, cannot vitiate the instrument as the acknowledgement of an account. The acknowledgment of payment by one partner, using the partnership name under seal, must certainly discharge a debt. So of a release or discharge in form. So such admission as would take a debt out of the Statute of Limitations, made in writing, with a seal attached, would surely revive the debt against the co-partnership. In all these cases, a seal would bo unnecessary to accomplish the purpose designed, and would, most unquestionably, be rejected as surplusage, “ ut res magis, &c.” Where is the principle that distinguishes the above cases from this ? It cannot be contend*420ed, because, that in the one case a debt is contracted, and in the other a debt is discharged; that the seal may be rejected as surplusage, in instruments purporting to release a debt, but must be stringently retained, so as to vitiate a similar effort to acknowledge a just debt. For, at least in the case of the admission, sufficient to bar the operation of the Statute of Limitations, it is, if not the creation of a new debt, a revival of an old one, that had been extinct by time.

It is contended that the true rule ought to be and is, that in-instruments requiring a seal, one co-partner cannot bind another without either his authority previously given, or his subsequent .adoption and ratification; but where instruments require no seal, and are equally effectual without one, and a seal has been in ad-vertently affixed, it should be rejected as surplusage, and not allowed to frustrate the true intents of the parties, and sacrifice the rights of the creditor to a refined technicality.

4th. The seal thus being disregarded as to the defendant Gregory, the instrument, aided by the proofs stated in the case may well be regarded as a liquidated account due to the plaintiffs and signed by the defendant, by which he became liable un,der our act of Assembly. For, though in form it was a transaction with a Guardian of the plaintiffs, then infants, it was for the hire of their slave, whose services the defendant enjoyed, and for their benefit.

J. II. Bryan, for the defendant.

Pearson, J.

There is no error. The note offered in evidence is, manifestly, as against the defendant, not “ an account stated in writing and signed by the party t<> be charged therewith.”

It was very ingeniously argued that the seal might be rejected as surplusage, and as a partner was authorised to sign the name of his co-partner, the note might be considered as signed by the defendant.

*421To avoid unnecessary argument, suppose tbe objection as to the signing is removed. There remain two others. The debt is not stated as due to the plaintiffs, but as due to W. B. Taylor, There is no “ account stated in writingno item is given — it does not appear in writing for what the $62 was due. So the utmost stretch of ingenuity cannot suggest a ground upon which the note can be considered an “account stated in writing.”

As the cause of action exceeds the sum of $60, a single justice has no jurisdiction.

Judgment affirmed.