Heath v. . Gregory

Counsel

Husted 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 "assumpsit" 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 unauthorized 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 be 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 contended, 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 inadvertently 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 under 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. H. Bryan , for the defendant.