1819.

Doz

against HILDER.

the mortgagee against any subsequent use of the term
to defeat her mortgage. On both these occasions, there-
fore, the term, if existing, could not have been wholly
disregarded, without either want of integrity on the
part of Richard Newman, or want of care and caution
on the part of the professional men engaged in those
transactions. We think it more reasonable to presume
a prior surrender of the term, than to presume such
deficiencies. It certainly might not unreasonably be
left to a jury to consider to what cause they would at-
tribute these omissions; and this was done at the trial.
It is true that an assignment of the term was taken a
few days before the trial for the alleged benefit of the
legatees of the mortgagee, Mrs. Newman, on whose
behalf we were informed the present cause was de-
fended. But this tardy act cannot be of any avail,
and leads not to any presumption. The assignment
was made by the administrator of the person in whom
the term had been vested; and the administrator would
probably be ignorant of any previous surrender made
by the intestate. The time for dealing with the term,
on behalf of the mortgagee, was the date of the
mortgage. An actual assignment of the term is more
regarded than its mere quiescent existence. It will
defeat the title to dower, which its existence only will
not, according to the case of Maundrell v. Maundrell,
7 Ves. jun. 567, and 10 Ves. jun. 246., and the cases
there cited. These observations respecting the settle-
ment and the mortgage, receive additional force from
the consideration of their dates.
subsequent to the judgment, and they are the acts of
a person materially interested in protecting the land
from the judgment, and excluding all questions on the

They were both long

subject

subject of priority or otherwise in the case of the settlement, for the sake of his intended wife, and the issue that he might expect by her, and in the case of the mortgage, for the sake of the mortgagee, to whom he was so nearly related, and who was evidently a favoured creditor. And it cannot be denied that an actual assignment of the term would have been in many respects more operative against the judgment, than its mere existence. In the case of the mortgage, it would have put an end to all question on the Statute of Frauds, by making the termor specifically a trustee for the mortgagee before execution issued, according to the case of Hunt v. Coles, 1 Com. Rep. 226. For these reasons we think the verdict ought not to be disturbed, and the rule must therefore be discharged.

Rule discharged.

RAPP against LATHAM and PARry.

ACTION for money had and received. Plea, first,

general issue, secondly, set-off. This action was brought by order of the Lord Chancellor against the defendants, who were bankrupts, and was defend

ed by the assignees.

The question was, whether

Wednesday,
June 30th.

4. employed

B. and C., who
were partners
as wine and
spirit

primer chants, to pursell the same

chase wine and

upon commission. C. the managing partner, represented that he had made the purchases, and that he had sold a part of the wines so purchased at a profit; the proceeds of such supposed sales he paid to A., and rendered accounts, in which he stated the purchases to have been made at a certain rate per pipe. In fact, C. had neither bought nor sold any wine. The transactions were wholly fictitious, but B. was wholly ignorant of that. Upon the whole account a larger sum had been repaid to 4., as the proceeds of that part of the wine alleged to be resold, than he had advanced; but the other part of the wine, which C. represented as having been purchased, was unaccounted for. Held that B. was liable for the false representations of his partner; and that A. was entitled to retain the money that had been paid to him upon these fictitious transactions, as if they were real.

Held also, the supposed purchases having been represented to have been made at a certain specified rate per pipe, that . might maintain an action for money had and received to recover the specific sums advanced for the number of pipes of wine unaccounted for.

1819.

RAPP against LATHAM.

the plaintiff was entitled to prove any and what debt under the commission. The two defendants were in partnership as wine and spirit merchants. The business was under the sole direction and management of Párry; Latham being also an insurance broker. The plaintiff employed the defendants to purchase wine for him on commission, and to resell the same as opportunity might offer. The plaintiff advanced the money to pay for the wines, and the duties thereon. The defendant Parry represented to the plaintiff that wines were actually purchased and sold, and from time to time rendered in the name of Latham and Parry accounts of such sales, and paid the proceeds thereof to the plaintiff. These dealings commenced in January 1812. Parry then wrote to the plaintiff that he had an opportunity of purchasing 61 pipes of port at 657. per pipe, and he desired the plaintiff to remit the money to pay the price of such wines and the duties thereon: the plaintiff did remit the money, and Parry represented that he made the purchase, and afterward, in the name of the firm, transmitted an account to the plaintiff, stating that 30 of these 61 pipes were resold at the price of 847. per pipe, and paid the proceeds of such pretended sale to the plaintiff. The other transactions were similar to this, and continued from January 1812 to 1813; during that time Parry represented that eleven different purchases of wine had been made. Each transaction formed the subject of a separate account, and all the purchases were described as being made at a certain specified rate per pipe. The plaintiff conceived that Parry was in fact laying out his money in bona fide purchases of wines, and that he actually resold part of such wines as he represented;

But

But upon the bankruptcy taking place, it appeared that
the transactions were wholly fictitious; and that
Parry had had recourse to them as expedients to raise
money. The defendant Latham knew that the plain-
tiff had employed Parry to buy and sell wines on
commission, but he had no knowledge that the trans-
actions were fictitious. Upon the whole account
the plaintiff had advanced, on account of the alleged
purchases of wine, and some other purchases of rum,
about which there was no question, 126,000l., and
he had received, on account of the supposed resale
of part of the wines and the profits thereon, 130,000%.
He claimed to recover the money he had advanced for
the purchase of that part of the wine which the defend-
ant Parry had represented as purchased, and which
they had never, in fact, delivered or resold.
cause was tried at the London Sittings after last Hilary
term, before Abbott C. J., and it was contended by
the plaintiff that he had a right to take each transac-
tion separately, and to charge the defendants with the
amount of the money advanced to them, for the pur-
chase of every pipe of wine not accounted for.

The

The Lord Chief Justice was of opinion, that in this action for money had and received, the plaintiff could not recover, as the defendants had in fact received no money beyond what they had actually paid to the plaintiff, and the plaintiff was therefore nonsuited, with liberty to move to enter a verdict for such sum as an arbitrator should award, on a principle to be laid down by the Court. A rule nisi having been obtained for that purpose by Scarlett in Easter Term last, cause was shewn on a former day in this term by

Vaughan,

1819.

RAPT against LATHAM.

Vaughan, Serjt. Gurney and Littledale for the defendants. If the defendant Latham had even been privy to the fraud of Parry, this action for money had and received is not maintainable, for it does not lie, unless money actually pass between the parties. If there be only money's worth, or if by mistake, or fraud, a man represent that he has received money, and it afterwards appear upon the evidence that money was not received, this is not the proper form of action. Now here no money has come into the hands of the defendants beyond what they have paid, and that being so, this action is not maintainable. Secondly, although it be true, that one partner is liable for the fraudulent acts of another, that rule must be confined to real transactions, for such only are in the ordinary course of trade, and are to be considered as partnership transactions. The principle upon which one partner has been held bound by the acts of another, is, that he gives that other an implied authority to bind him in all partnership transactions, and therefore it has been held, that if one partner be dissatisfied with the conduct of another, and give notice to the parties who are trusting that other not to trust him, he is not liable, Willis v. Dyson. (a) But here there is no partnership transaction. These fictitious purchases and sales are not in the ordinary course of trade, they are not therefore partnership transactions, with respect to which alone one partner has an implied authority to bind another. There is no instance in the books, where one partner has been held bound by the acts of another, where the transaction is not a real transaction. There are instances

(a) 1 Starkie, 164.

as