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1806.

SWAN

versus

STEELE & al.

as cotton dealers, than by the drawer thereof for cotton sold to him in which the defendant Steele, was as aforesaid interested, and that the name "David and Others Maitland," thereto subscribed as the drawer, is the 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 Payne had 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 dis charge its debts; and that the said Samuel Steele when he has discharged those debts, will be a creditor of the concern.

The question for the opinion of the court is, whether the plaintiffs 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 enter ed for the defendant Steele.

WOOD, for the plaintiffs. " Payne being partner had authority to dispose of the partnership 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 good 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."

LITTLEDALE, contrà. "The plaintiff's are not entitled to recover. One partner cannot pledge the goods of another, and this is properly a mere pledge Dd

NO. XXIX. N. S.

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of a bill of exchange. The plaintiffs did not sell
to Steele but only to Wood and Payne; and took a
particular security by the acceptance of Wood and
Payne for the goods. The case states, that they, not
being able to provide for their acceptance, delivered
over this as a security, and the plaintiff's did not therefore
take it in the ordinary course of trade, but as a pledge.
He cited Shireff v. Wilks, 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 cre
ditor upon the firm in their joint names, but such
security was fraudulent and void as against the third
partner; and contended that the plaintiff's must have
known of the partnership and that Wood and Payne
were misapplying the bill, or else, instead of taking the
bill as a collateral security, they would have received
the indorsement in payment and discharge pro tento.",

Lord ELLENBOROUGH, C. J. "I think that the
knowledge which is argued for in the plaintiffs, will
not vitiate a transfer actually made to them, without
cognizance of the facts previous. This bill which is
indorsed by the two was the property of the three part-
ners. By the indorsement they had a right to makę
that transfer, and the plaintiffs would incur a loss
now if it was set aside, because they would not have
that other security, which they would have obtained
before. But the discovery of the misconduct of 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 sub-
sequent knowledge, that it is against the will of the
third partner.".

* 1 East. 48.

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GROSE, J. and LAWRENCE, J, were of the same opinion.

LE BLANC, J. "The bill must have been indorsed virtually by all three partners, or else the plaintiff's could have no right. The interest therefore passes in it."

JUDGMENT for the PLAINTIFF.

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CROSSE and ELIZA LAWRENCE CROSSE, his Wife, Administratrix of JOHN REEDER, against SMITH and Another, Executors of J. GRIERSON.

Executor.

A. and B. were executors of C., of whom B..was a simple contract creditor; A. having received 4001. of the assets of G. Devastavit. remitted them to B. to pay a bond debt 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 then no assets of C. D. proved under B.'s commission and received a dividend. Held, that A. having received assets was answerable at law for the misap propriation by B. Semble, that in all the cases at law and in equity the receipt of the money is sufficient to charge the executor. THIS was an action of debt on a bond, in the pe

nalty of 1001. given by James Grierson to John Reeder, dated 10th of May, 1793, conditioned for the payment of the principal sum of 5001. and interest, at 5 per cent, on the 10th of May, 1796.

The declaration stated the bond. The defendant Munt, pleaded plene administravit, except as to 4681. 15s. and as to that sum, his bankruptcy and the obtaining and allowance of his certificate, specially alledging that the said 4681. 15s. and no more of the effects of Grierson having been received by him as

CROSSE and Others

Tersus

SMITU and Another.

1806.

CROSSE

and Others

versus

SMITH

and Another.

spch executor were, before he became bankrupt, misapplied, eloigned, and wasted by him; that the plaintiff Eliza Lawrence after Mr. Reeder's death, and before her marriage with the plaintiff John Webber Crosse, 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 commission, 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 plaintiffs replied, denying that he had fully administered, except 468l. 15s. and also denying that the plaintiff, Eliza Lawrence, proved the said 4681. 15s. as a creditor under Munt's commission as a debt, &c. or secured, &c. in manner and form as alleged by the plea; and on these points issue was joined.

The defendant Smith pleaded, first, plene administrarit, except as to 41. 17s. and secondly, plene administravit, except the said 41. 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 any time since, goods, &c. except the said 41. 17s. The plaintiffs' 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 41. 17s. goods, &c. to the amount of the debt, and on these points issue was joined.

This cause came on to be tried before Lord ELLENBOROUGH, 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 1s. costs 40s.; and that the defendant Smith, had

assets, ultra the 41. 17s. to the amount of 400l. only, subject to the opinion of the court on the following case:

1806.

CROSSE and Others versus

SMITH

James Grierson, deceased, duly executed the bond to John Reeder, deceased, at the time it bears date. and Another. Grierson, paid 1001. on the bond in his life-time, and died on the 17th of February. In the same year the defendant Smith having 4001. of Grierson's effects then in 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 remitted Mr. Munt 4001. to pay his bond on the 17th 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, 28th July, 1796."

No other evidence was given of the defendant Smith's knowing of the bond, or the terms of the condition. At the time of the remittance, Munt was in goodcredit, 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, 1796, as stated in the pleadings. John Reeder died in October, 1797, intestate, leaving the plaintiff, Eliza Lawrence Crosse, then Reeder, his ouly daughter, who took out administration to him. On the 21st of November, 1798, the plaintiff, Eliza Lawrence Crosse, (then Reeder) proved the money then due for principal and interest on the bond, being 4681. 15s. as a debt under Munt's commission, whereon a dividend has been

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