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ás cotton dealers, than by the drawer thereof for 1806. cotton sold to him in which the defendant Steele, was

SWAN as aforesaid interested, and that the name Ducid and Others Maitland,” thereto subscribed as the drawer, is the versus

STEELE & al. proper band-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 entered 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 be misapplies the money or effects, he is answerable in account with the other partners. This is a good dis. position 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 EuleNBOROUGH, C. J. « Unless there is collusion."

LITTLEDALE, contrà. “ The plaintiffs are not entitled to recover. One partner cannot pledge the goods of another, and this is properly a mere pledge

NO. XXIX. N. S. , Ꭰ d

SWAN

versus

1806. of a bill of exchange. The plaintiff's did not sell

E to Steele but only to Wood and Payne ; and took a and Others particular security by the acceptance of Wood, and STEELE * al. Payne for the goods. The case ştates, that they, not

being able to provide for their acceptance, delivered over this as a security, and the plaintiffs 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 á crea ditor upon the firm in their joint names, but suchi security was fraudulent and void as against the third partner; and contended thať the plaintifi'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 paynıent and discharge pro tunto.,

- Lord ELLEN BOROUGH, C. J. “I think that the knowledge which is argued for in the plaintiff's," will not vitiate a transfer actually made to thein, without cognizance of the facts previous. This bill which is indorsed by the two was the property of the three paitrers. By the indorsement they had a right to make that transfer, and the plaintiff's 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 in the bill passing by indorsement cannot now be divested by the sub

sequent knowledge, that it is against the will of the . third partner.”

* i Egst. 48.

Grose, J. and Lawrence, J, were of the same 1806. opinion.

SWAN

and Others Le Blanc, J. « The bill must have been indors- versus

SIEELE & al. ed virtually by all three partners, or else the plaintiffs could have no right. The interest therefore passes in

it.

JUDGMent for the PLAINTIFF.

Crosse and Eliza Lawrence Crosse, his Wife, - Administratrix of John Reeder, against Smitu

and Another, Executors of J. GRIERSON.

A. and B. were erecutors of C., of whom B.was a simple con- frete

truct creuitor; A. having received 4001. of the assets of Q, Devastavit. remitted them to B. to pay a bond debt due to D. and at the same time gare 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 misappropriation by B. Semble, that in all the cases at law and in equity

the receipt of the money is sufficient to charge the ereculor. THIS was an action of debt on a bond, in the pc

nalty of 1001. given by James Grierson to John CROSSE Reeder, dated 10th of May, 1793, conditioned for the payınent of the principal sum of 5001. and interest, at SNITU.

and Another, 5 per cent. on the 10th of May, 1796.

and Others

tersus

The declaraliun stated the bond. The defendant Munt, pleadeid plene administraril, except as to 468). 15s. and as to that sum, his bankruptcy and the obtaining and allowance of his certificate, specially alledging that the said 46sl. 15s. and no more of the effects of Grierson having been received by liim

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spch executor were, before he became bankrupt, mig..
applied, eloigned, and wasted by him ; that the plain..
tif 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 ex-
ecutor as aforesaid, to ber as the administratçix 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 coinmission, of which the plaintiff Eliza Law-
rence had notice. To this plea of defendant Munt,
the plaintiffs replied, denying that he had fully admi-
nistered, except 4681. 158. and also denying that the
plaintiff, Eliza Lawrence, proved the said 4681. 155.
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 administra-
rit, except as to 41. 175. and secondly, plene admini.
stravit, 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 4l. 175. The plaintiffs' reply taking judgment of
the assets confessed and averring that the defendant
Smilh, had at the time when he had first notice of
the said writing obligatory, besides the, said 41. 178.
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, 1803, when a verdict was found for the defendant Munt; and for the plaintif against the defendant Smith, damages Is. costs 40s.; and that the defendant Smith, had

180A

versus SMITH

assets, ultra lhe 41. 178. to the amount of 4001. only, subject to the opinion of the court on the following case :

CROSSE

and Others 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 baviog 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 bad notice from Munt, as appeared by the following letter writteu by the defendant Smith, to Mr. Reeder:

“ Nr. Smith's compliments to Mr. Reeder, and begs to inform him, he remitted Mr. Munt 4001. to pay bis 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 terins of the condition, At the time of the reinittance, 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 io him; though he knew of this bond, and had received the 400l. 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, bis only daughter, who took out administration to him. On the 21st of November, 1793, the plaintif, Eliza Lawrence Crosse, (then Reeder) proved the money then due for principal and interest on the bond, being 46l. 15s, as a debt under Munt's coinmission, whereon a dividend has been

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