Where an agent having property of his principal in his hands, and being ignorant of the death of his principal, for the purpose of transmitting the property, obtained a bill of exchange for the value, and indorsed it specially to his principal; it was held that as the property, for which the bill was remitted, belonged to the principal's estate, it was competent to his administrator to elect to take the bill as a mode of payment, that the property vested in him, and that he acquired a right to sue upon the bill. Murray v. East India Co. 5 B. &A. 204.

Infants.] It is a general rule that the contracts of infants, unless for necessaries, are voidable, and cannot be enforced against them. On this ground an infant cannot bind himself as drawer of a bill of exchange, and if sued as such he may plead his infancy in bar; Williams v Harrison, Carth. 160; or give it in evidence under the general issue. The bill is voidable only as against the infant, and therefore, where a bill was accepted by two persons, one of whom was an infant, and the other was sued alone, and pleaded that he did not undertake unless jointly with the infant, upon replication that he did, and proof that the infant had not disaffirmed the acceptance, it was held that the issue ought to be found for the defendant. Gibbs v. Merrill, 3 Taunt. 307.

It seems that infancy is a personal privilege, and is only a good defence in an action on a bill of exchange where the infant himself is sued. Thus where a bill of exchange was drawn by two infants, payable to their own order, and indorsed by them to S. and by S. to the plaintiff, and accepted by the defendant; Lord Ellenborough held, that if the action had been against the drawers themselves, there might have been a good defence; but though the plaintiff derived title under them, the bill was not to be considered as void in his hands, and there was a verdict for the plaintiff. Taylor v. Croker, 4 Esp. 187. Drayton v. Dule, 2 B. & C. 299. So it has been held, that the drawer of a bill cannot set up the infancy of the payee and indorser as a defence to the action. Cowper, E. 22 G. 3. 1 Selw. N. P. 287. 4th Ed. a bill had been indorsed by an infant, of which the acceptor was cognizant, it was held in an action against the acceptor, that he could not set up the infancy of the indorser as a defence. Jones v. Darch, 4 Price, 300. see Jeune v. Ward, 2 Stark. 330.

Grey v. So where

A person of full age, who accepts a bill drawn while he was an infant, is liable on the bill; Stevens v. Jackson, 4 Campb. 164; and an infant may make himself liable by a promise after full age, to pay a bill to which his infancy might otherwise have been a discharge. Per Ld. Ellenborough, Taylor v. Croker, 4 Esp. 188.

As an infant may sue on a contract made for his benefit, Warwick v. Bruce, 2 M. & S. 205, he may be a payee or indorsee. Bayley, 40. Holliday v. Atkinson, B. & C. 501.

Whether an infant can bind himself by a bill or note for necessaries has not been decided. In Williams v. Harrison, Carth. 160, the court held, that as the bill of exchange was drawn in the course of trade and not for any necessaries, infancy was a good defence. In Trueman v. Hurst, 1 T. R. 40, which was an action on a note given for board and lodging, and for teaching and instructing the defendant, and upon an account stated, the defendant pleaded infancy, and the plaintiff replied necessaries; on demurrer to the replication, it was insisted that an infant could not bind himself by a note, even for necessaries, and that no action would lie against him even on an account stated. The court desired the plaintiff's counsel to confine himself to the last case, from whence it has been inferred that they thought the first was with him, but they decided against him on the last. Bayley, 454. In an action against the acceptor of a bill, he pleaded infancy, to which the plaintiff replied necessaries, and the defendant took issue. Per Sir J. Mansfield, C. J. "This action certainly cannot be maintained. The defendant is allowed to be an infant, and did any one ever hear of an infant being liable as acceptor of a bill of exchange? The replication is nonsense and ought to have been demurred to." Williamson v. Watts, 1 Campb. 552. It has been said that there seems to be no reason why a bill or note really given, and expressed to be given for necessaries by an infant, may not be considered as equally binding with a single bond. Kyd on Bills, 18. 2d Ed. But since it has been decided that an action cannot be maintained against an infant on an account stated for necessaries. Trueman v. Hurst, 1 T. R. 40, Ingledew v. Douglas, 2 Stark. 36, it seems to follow, that a bill or note cannot be enforced against an infant for necessaries, even by an immediate party. (Note 12.),

Lunatics.] A person of unsound mind, and incapable of making a contract, cannot be a party to a bill of exchange or promissory note. Thus in an action by the indorsee against the maker of a note, where the defence was, that the defendant was of an imbecile mind, and incapable of transacting the ordinary affairs of life, Lord Tenterden told the jury, that the question was whether the defendant, at the time he put his name to the note, was or was not conscious of what he was doing; if he was, that there must be a verdict for the plaintiff; but if he was not conscious of what he was doing, and was imposed on by reason of his imbecility of mind, that the jury ought to find for the defendant. The jury accordingly found a verdict for the defendant. Sentance v. Poole, C. & P. 1. (Note 13.)

Married women.] In general, all contracts entered into by married women are void, and therefore, a married woman cannot draw, accept, or indorse a bill, so as to give any remedy against herself, or to transfer any interest to another party. Thus, where the defendant made a note payable to a married woman, knowing her to be such, with intent that she should indorse it to the plaintiff, and she indorsed it accordingly in her own name, it was held that the plaintiff could not recover. Barlow v. Bishop, 1 East, 432. But in some cases, an authority from the husband to indorse may be presumed; thus, where a note was made payable to a married woman by another name, and indorsed by her in that name, after which the maker promised the holder to pay it; Lord Ellenborough held that after this promise it might reasonably be presumed as against the maker, that the indorser had authority from her husband to indorse the note in the name by which she herself passed in the world. Cotes v. Davies, 1 Campb. 488. And in those cases in which a feme covert has, for the purposes of a suit, been considered as a feme sole, as where the husband has abjured the realm, Lean v. Schutz, 2 W. Bl. 1199. 3 B. & C. 297. or been transported for a limited period, Carrol v. Blencow, 4 Esp. 27, she may, it seems, bind herself by becoming party to a bill of exchange. But the living apart from her husband, and having a separate maintenance by deed, is not sufficient. Marshall v. Rutton, 8 T. R. 545.

Where a bill or note is indorsed to a feme sole, and she afterwards marries, the property in the bill or note vests in her husband. Connor v. Martin, cited 3 Wils. 5. And where a bill is made payable to a feme sole, and she marries before it becomes due, the husband may sue upon it in his own name without joining his wife, though the latter has not indorsed the bill, for by the act of marriage he is virtually an indorsee. M'Neilage v. Holloway, 1 B. & A. 218. So where a bill or note is indorsed to a feme covert, it vests in the husband. Barlow v. Bishop, 1 East, 432. And where a promissory note is made to a feme covert, the husband may either sue upon it in his own name, and treat it as if it were made to himself, Arnold v. Revoult, 1 B. & B. 443. 4 B. Moore, 70. S. C. or may bring an action upon it in the joint names of himself and his wife, who may be considered as the meritorious cause of the action. Philliskirk v. Pluckwell, 2 M. & S. 395.

In the following case a remedy was afforded in equity on a promissory note made by a married woman. The wife having a separate property settled upon her, requested the plaintiff to lend her 2501., which she promised should be repaid to him with interest out of her separate property; the plaintiff accordingly advanced the sum, and she gave her promissory note for 2501. and interest. A bill being filed against the husband, wife,

and trustees of the separate property, it was decreed that the trustees should pay to the plaintiff what should be found due in respect of the principal, interest, and costs, out of the rents and profits of the separate property. Bullpin v. Clarke, 17 Ves. 366.

If a husband indorse a promissory note made by his wife, an action may be maintained on it against him by the indorsee. Haly v. Lane, 2 Atk. 182.

Partners.] In drawing and accepting bills, it was never doubted but that one partner might bind the rest. Per Lord Kenyon, Harrison v. Jackson, 7 T. R. 210. And see Pinkney v. Hall, 1 Lord Raym. 175. 1 Salk. 126. S. C. Smith v. Jerves, 2 Lord Raym. 1484. So one of several partners may bind his copartners by indorsing a bill in their joint names. Swan v. Steele, 7 East, 210. Ridley v. Taylor, 13 East, 175. post.

Partners-mode of becoming parties to bills, &c.] Where a partner made a promissory note in this form, " Sixty days after sight I pay Lord G. or order 2001. value received, for J. M., T. W. and T. S. J. M.;" Lord Ellenborough held that it was sufficient to bind the whole firm. Lord Galway v. Matthew, 1 Campb. 403. 10 East, 264. S. C. And see Smith v. Jerves, 2 Lord Raym. 1484. But in the case of a similar note, where the party actually making it had been sued alone, the court held that the action was rightly brought. Hall v. Smith, 1 B. & C. 407. 2 D.& R. 584. S. C. see ante, p. 18. Where a bill was drawn upon "Messrs R. & Co." and T. R. jun. one of the firm, wrote across it "Accepted, T. R. sen." Lord Ellenborough held it a sufficient acceptance to charge the firm. It would have been enough if "accepted" had been written on the bill, and the effect could not be altered by adding "T. R. sen." Mason v. Rumsey, 1 Campb. 384. But where the name of one partner only appears on the bill or note, his copartners will not be bound, though it was in fact made or accepted for partnership purposes. Thus, where the plaintiff declared on a promissory note made by T. W. in his own name, as on a note made by T. W. and R. and offered to prove in evidence that T. W. and R. were jointly indebted, and gave the note for that debt, he was nonsuited on the ground that this was a separate security for a joint debt. Siff kin v. Walker, 2 Campb. 307. So where one of two partners drew bills of exchange in his own name, which he procured to be discounted, and carried the proceeds to the partnership account, it was held that the party discounting the bills could neither sue the partnership upon them, nor for money lent to the partnership, although he conceived all the bills to be drawn on the partnership account. Emly v. Lye, 15 East, 7. And see Kilgour v. Finlyson, 1 H. Bl. 156.

But where the partner, who drew the bills in his own name, had authority from his other partners to raise money for the use of the firm, and money was accordingly raised in pursuance of such authority, Lord Ellenborough was of opinion that this case was distinguished from Emly v. Lye, that it was a loan rather than a discount, and that though the partners were not jointly liable upon the unaccepted bills, they were jointly indebted for the same amount, as for money lent or money had and received. Denton v. Rodie, 3 Campb. 493. Ex parte Bolitho, 1 Buck, 100.

Per Lord

Partners-power to bind co-partners by drawing, &c. for separate use.] Many cases have arisen on the powers of partners to bind their co-partners, by drawing, accepting, or indorsing bills in the partnership name, for the use of the individual partner. The following are the observations of Lord Eldon on this subject; "I agree it is settled that if a man gives a partnership engagement in the partnership name with regard to a transaction, not in its nature a partnership transaction, he who seeks the benefit of that engagement must be able to say, that though in its nature not a partnership transaction, yet there was some authority beyond the mere circumstance of partnership to enter into that contract so as to bind the partnership, and then it depends upon the degree of evidence." Eldon, Ex parte Peele, 6 Ves. 604. "I agree, if it is manifest to the persons advancing money, that it is upon the separate account, and so that it is against good faith that he should pledge the partnership, then they should show that he had authority to bind the partnership. But if it is in the ordinary course of commercial transactions, as upon discount, it would be monstrous to hold, that a man borrowing money upon a bill of exchange, pledging the partnership without any knowledge in the bankers that it is a separate transaction, merely because that money is all carried into the books of the individual, therefore the partnership should not be bound; no case has gone that length." Per Lord Eldon, Ex parte Bonbonus, 8 Ves. 542. "There is no doubt now, that if under the circumstances the party taking the paper can be considered as being advertised in the nature of the transaction, that it was not intended to be a partnership proceeding, as if it was for an antecedent debt, prima facie it will not bind them, but it will if you can show previous authority or subsequent approbation, a strong case of subsequent approbation, raising an inference of previous positive authority. In many cases of partnership and different private concerns, it is frequently necessary for the salvation of the partnership, that the private demand of one partner should be satisfied at the moment, for the ruin of one partner would spread to the others, who would rather let him liberate himself by dealing with the firm." Ibid.