#### JOHN Z. DAVIS v. G. W. GOLSTON, Administrator

-According to the general understanding of the profession, where parties have •gone into trial without a formal declaration, the plaintiff is to be taken to have relied on one suited to the case made by the proof.

Where an obligation was signed and sealed by one of two partners and signed, only, by the other, it was Held to be the deed of the former, and the simple contract only-of the other, and that the latter might be sued in assumpsit alone on this contract.

This was ,an action of assumpsit, tried before French, J., at' the last Fall Term of Harnett Superior Court.

The plaintiff declared on the following promissory note:

“ $545. On or before 1st of January, 1856, we, or either of us, promise to pajr John Z. Davis or order, the sum of five hundred and for!y-iive dollars, for the hire of the following negroes, viz: Buck, Samp, Bockra and Charles, for the present year 3 and we furl her promise to clothe them and furnish them with shoes, hfits-, awJ four blankets, and pay doctors’ bills. This 2d of January, 1855.

R. C. Belden, [seal.']

R. ~W. Palmer.”

There were also memoranda of counts for the hires of slaves, and on a special promise to pay, but no formal declaration was filed in the Court below.

The plaintiff having proved the execution of the instrument *29declared on, the defendant offered evidence to show that this paper-writing was signed by the defendant, G-olston’s intestate, Robert W. Palmer, in blank, and by him delivered to Belden, to be used in hiring slaves for the two, and that they were partners. That Belden hired the plaintiff’s slaves and filled up the paper-writing, so as to constitute the instrument above set out; his own name having affixed to it a seal.

The defendant’s counsel requested the Court to charge the jury, that if they believed from the evidence that Belden and the intestate were partners-, and that the paper-writing was-signed and sealed by Belden after it was filled up, then, the simple contract of the intestate was merged in the bond made by Belden, and that the plaintiff could not recover in this action. Also, that the defendant being sued on the individual-liability of the intestate, and the proof being that Belden and the intestate were partners and jointly liable, that the plaintiff' could not recover on account of the variance.

The Court declined giving the instruction asked, and the defendant’s counsel excepted.

Yerdict for the plaintiff. Judgment and appeal by the defendant.

Strange, for the plaintiff.

Weil McKay, for the defendant.

Battle, J.

The 8éth section of the 81st chapter of the Revised Code, which was originally taken from the act oí’ 1797, (ch. 4/15, sec. 2, of the Revised Code of 18-20,) declares that “ in all cases of joint obligations or assumptions of co-partners in trade or others, suits may be brought and prosecuted on the same against all or any number of the persons making such obligations, assumptions, or agreements.” According, then, to the express terms of this enactment, one of two or more joint obligors or partners may be-sued alone, and, of course, the declaration, in the action, may be so drawn as to be supported by the proof, which must necessarily be offered. In the present ease no formal declaration was filed, and, ao*30cording to the general understanding of the profession, the plaintiff is to be taken to have relied upon one suited to his case as established by his testimony.

The objection, then, that there was upon the trial a variance between the proof and the declaration, is not well founded. From the copy of the instrument, upon which the suit was brought, it appears that it was signed and sealed by Bebden, but only signed by the defendant’s intestate, Palmer. There can be no doubt that one partner may bind himself by a seal, if he intended to do so, though he cannot so bind the firm, unless he has authority, under seal, for that purpose; Fisher v. Pender, 7 Jones’ Rep. 483; Flliott v. Davis, 2 Bos. and Pul. 338.

It is equally clear, we think, that if an instrument be signed and sealed by one partner, and signed only by another, it will be the deed of the first, and the simple contract only of the second. See Green v. Thornton, 4 Jones 230. There is no more inconsistency in such a case, than there is in holding that an executory agreement between two persorls if sealed by one, and only signed by the other, will be the covenant of the first party, and the simple contract of the second. The latter case is well settled, and upon a breach of the agreement, one of the parties would have to be sued in an action of covenant and the other in assumpsit; Yarbrough v. Monday, 3 Dev. 420; Kent v. Robinson, 4 Jones 529; 1 Chit. Pl. 119.

Per Curiam,

Judgment affirmed.