« ForrigeFortsett »
as cotton dealers, than by the drawer thereof for 18O6.
cotton sold to him in which the defendant Steele, was
as aforesaid interested, and that the name "David »nd Othrn
Maitland," thereto subscribed as the drawer, is the stk^"^ al
proper hand-writing of David Maitland of Wigan,
to whom the cotton was sold; that the said bill has
been dishonoured, of which the said Wood and Pat/tic
bad due notice.
That the said Wood and Payne became bankrupts, on the 16th day of January, 1804, and that the effects of the said cotton concern, are insufficient to discharge its debts; and that the said Samuel Steele when be has discharged those debts, will be a creditor of the concern.
The question for the opinion of the court is, whether the plaintiff's are entitled to recover? If the court shall be of opinion they are so entitled, then the verdict to stand; otherwise a verdict to be entered for the defendant Steele.
Wood, for the plaintiffs. " Payne being paTtner had authority to dispose of the partnersliip effects, for such purposes as he thought proper. One partner may sell the effects, he may also release debts; but, if he misapplies the money or effects, he is answerable in account with the other partners. This is a tjood disposition to third persons, unless those third persons can be affected with the fraud contrived by the partner. The other partners are bound by it unless there is fraud."
Lord Ellen Borough, C. J. "Unless there is collusion."
Ltttledale, contri. "The plaintiff's are not entitled to recover. One partner cannot pledge the goods of another, and this is properly a mere pledge
No. xxrx. N. s. D d
1806. of a bill of exchange. The plaintiffs did not sell SwAII to Steele but only to Wood and Payne; and tqok a and Others particular security by the acceptance of Wood and. Steile 4c al. Payne for the goods. The case states, that they, not •- being able to provide for their acceptance, delivered
over this as a security, and thep/ajW/^sdid not therefore take it in the ordinary course of trade, but as a pledge. He cited Shireff v.Wi/ks* where it was held that two of three partners who had contracted a debt prior to the admission of the third partner could not bind him, without his assent, by accepting bills drawn by a ere-' ditor upon the firm in their joint names, but sLcii* security was fraudulent and void as against the third partner; and contended that the plaintiffs must have known of the partnership and that li'ood mid Payne were misapplying the bill, or else, instead of taking the bill as a collateral security, tiiey would have received the indorsement in payment and discharge pro tintto."
Lord Ellen Borough, C. J. "I think that the knowledge which is argued for in the plaintiffs,' will riot vitiate a transfer actually made to thein, without cognizance of the facts previous. This bill which is indorsed by thejwo was the property of the three pai tiiers. By the indorsement the) had a rigiit to make that transfer, and the plaintiffs would incur a los? now if it was set aside, because they would not have that other security, which they would have obtained before. Jiut the discovery of the misconduct oi' one or two of these partners cannot vitiate a transaction which, vested a regular interest. The right to the bill passing by indorsement cannot now be divested by' the subsequent know ledge, that it is against the will of the thud partner.",
Grose, J. and Lawrence, J, were of the same 18<x>opinion. S^as
Le Blanc, J. "The bill must have been indorsed virtually by all three partners, or else the plaintiffs could have no right. The interest therefore passes in it."
Ceosse and Eliza Lawrence Crosse, his Wife, Administratrix of John Reeder, agai/ist Smith and Another, Executors of J. Grierson.
A. and B. were executors of C, of whom B..was a simple con- jjxecutor tract creditor; A. having received 400/. of the assets of I}, Devastavit. remitted them to B. to pay a bond dtbt due to D. and at the same time gave notice thereof to D. B. was then in good credit, but failed and became bankrupt twelve months afterwards, and had the.ino assets of C D. proved under li.'s commission and received a dividend. Held, that A. having received assets was answeranle at law for the misappropriation by B. Semitic, that in all the cases at law and m equity the receipt of the money is sufficient to charge the executor.
^HIS was an action of debt on a bond, in the penalty of 1001. given by James Grierson to John Cross* Reeder, dfcted 10th of May, 1793, conditioned for the payment of the principal sum of oOOl. and interest, at Smitu
• , „ i r jf .-../• and Another.
5 per cent, on the lOlh or May, 1 ( 00.
The declaration stated the bond. The defendant Muni, pleaded phne adminl&traxit, except as to 46'8l. 15s. and as to that sum, his bankruptcy and the obtaining and allowance of his certificate, specially alledging that the said 4f)Sl. 15s. and no more of the effects of (iritrson having been received by him tra 18n& such executor were, before he became bankrupt, miaCnoisi applied, eloigned, and wasted by him ; that the plain-, •»d Others tia- Eiiza LaWra,ee after Mr Reeder's death, and
Smith before her marriage with the plaintiff' John Webber md Another, grone, proved the said 4681. 15s. as a creditor under Munt's commission, as a debt from Munt, as such executor as aforesaid, to her as the administratrix of the said John Reeder,at the suing out of the commrssion, and secured by the bond in the declaration mentioned, and that a dividend was duly declared and made under such commission, of which the plaintiff" Eliza Lawrence had notice. To this plea of defendant Munt, the plaintiff's re plied, denying that he had fully administered, except 4081. 15s. and also denying that the v plaintiff", Eliza Lawrence, proved the said 4681. 15s. as a creditor under Munt's commission as a debt, ' f fcc. or secured, 8cc. in manner and form as alleged by the plea; and on these points issue was joined.
The defendant S/n/rAJpleaded, first, plene administrarit, except as to 4l. 17s. and secondly, plene administravit, except the said 4l. 17s. before he had notice of the bond, and that he had not then, nor had at the time when he first had notice of the said writing obligatory, or at anytime since, goods, 8tc. except the said 41. 17s. The plaintiff's' reply taking judgment of the assets confessed and averring that the defendant Smith, had at the time when he had first notice of the said writing obligatory, besides the said 4l. 17s. goods, See. to the amount of the debt, and on these points issue was joined.
This cause came on to be tried before Lord ElLenborouch, at the sittings after Trinity term, 1805, when a verdict was found for the defendant Munt; and for the plaintiff against the defendant Smith, damages Is. costs 40s.; and that the defendant Smith, had i
assets, ultra the 4l. 17s. to the amount of 4001. only, 190a. subject to the opinionof the court on the following case: c«ois«
James Gricrson, deceased, duly executed the bond Mtm to John Reeder, deceased, at the time it bears date. sndAno'tor.' Grierson, paid 1001. on the bond in his life-time, and died on the 17th of~Fcbruary. In the same year the defendant Smith having 4001. of Grierson's effects then ia his hands, as his executor, remitted that sum to the defendant Munt, his co-executor, for the purpose of paying this bond, of which he had had notice from Munt, as appeared by the following letter written by the defendant Smith, to Mr. Reeder:
"Mr. Smith's compliments to Mr. Reeder, and begs to inform him, he remittedMr.il/uni 4001. to pay his bond on the!/th of February, 1795, by a draft on Messrs. Whiteheads, bankers, in London, and that Mr. Munt acknowledged the receipt thereof, the 19th of February, 1795;
"Southampton, 28M July, 1796."
No other evidence was given of the defendant Smith'* knowing of the bond, or the terms of the condition. At the time of the remittance, Munt was in good credit, and Smith knew that he was a simple contract creditor of Grierson to a larger amount than 4001. Munt applied the 4001. towards the payment of the simple contract debt due from Grierson to him; though he knew of this bond, and had received the 4001. from Smith to pay it. Munt became bankrupt on the 4th July, 17'Jfj, as stated in the pleadings. John Reeder died in October, 1797, intestate, leaving the plaintiff", Eliza Lawrence Crosse, then Reeder, his only daughter, who took out administration to him. On the '21st of November, 1793, the plaintiff, Eliza Letcrcncc Crosse, (then Reeder) proved the money then due for principal and interest on the bond, being 4gh1. 15s. as a debt under Hunt's commission, whereon a dividend has been