Mechanics' Bank of Alexandria v. Seton. 1 P. Notice to the board of directors, when this stock was transfered to Lynn, that he held it as trustee only, was notice to the bank; and no subsequent change of directors could require a new notice of this fact. So that, if the bank had sustained any injury by reason of a subsequent board not knowing that Lynn held the stock in trust, it would result from the negligence of its own agents, and could not be visited upon the complainants. But no such injury is pretended. From any thing that appears to the contrary, Lynn is fully able to pay his debt to the bank. The case of the Union Bank of Georgetown v. Laird, 2 W. 390, has been supposed to have a strong bearing upon the one now before the court. But the circumstances of the two cases are very dissinilar. In the former, Patton was the real as well as the nominal holder of the stock when he contracted his debt with the bank, and when his acceptance fell due, and the lien of the bank, no doubt, attached upon the stock; and this was previous to the assignment of it to Laird; and the question there was, whether the bank had done any thing which ought to be considered a waiver of the lien. But, in the present case, Lynn never was the real owner of the stock, and the bank well understood that he held it as trustee, and no lien for Lynn's debt ever attached upon it. The appellants cannot, therefore, under any provisions in their charter, apply this stock to their own use, for the debt of *Lynn, to the prejudice of the rights of the known ces- [*310] tui que trusts. Nor is there any ground upon which the claim of the bank can be sustained, under the agreement made between Lynn and Chapin, the cashier, and the transfer thereof, made by the latter to the bank. If the bank, as has already been shown, was chargeable with the knowledge that Lynn was a mere trustee, it could acquire no title from him, discharged of the trust; and if necessary, might itself be compelled to execute the trust. Nor has the bank any title to this stock under the transfer made by Chapin. This was done without any legal authority, being several months after Lynn had revoked the power of attorney under which the transfer was pretended to be made; and with full knowledge that Lynn was not the owner of the stock. But another and complete answer to the whole of this arrangement between Chapin and Lynn, is, that it was made long after the bill in this case was filed; and it is a well-settled rule, that the court is not bound to take notice of any interest acquired in the subject-matter of the suit, pending the dispute. The decree of the court below must accordingly be affirmed, with costs. 19 H. 113. Barry v. Foyles. 1 P. ROBERT BARRY, Plaintiff in Error, v. THOMAS FOYLES. 1 P. 311. A variance between an account filed to obtain an attachment, and the declaration filed after the defendant appeared and discharged the attachment, is of no importance. A general agent of a manufacturing establishment gave a certificate that a certain amount was due on settlement, from the firm whose agent he was; held to be admissible evidence against his principals, when connected with circumstances which tended to prove that the debt was contracted for materials used by him in the manufacture. The non-joinder of a partner as a defendant in an action of assumpsit, can only be pleaded in abatement. THE case is stated in the opinion of the court Coxe and Worthington, for the plaintiff. Jones, contrà. [*314] MARSHALL, C. J., delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of the United States for the District of Columbia, sitting in the county of Washington. The defendant in error had sued out an attachment against Robert Barry, and had filed an account against James D. Barry and Co., said to be assumed by Robert Barry. Robert Barry appeared, gave special bail, and discharged the attachment. Thomas Foyles then filed a declaration of indebitatus assumpsit, for money had and received, and for goods, &c., delivered; to which Robert Barry pleaded the general issue, and the parties I went to trial. At the trial, the plaintiff in the circuit court offered in evidence three paper writings, signed by Edmond Rice; and also produced Thomas Rice, a witness, who swore that at the time the said paper writings bear date, and for a long time before and after, E. Rice, whose name is signed to the said writings, was foreman and manager of a tanyard in Washington; kept the books, bought and sold leather, and managed the whole concern for the proprietors; that the said papers are in his handwriting; that the said Foyles, for about seven years, (including the dates of said writings,) being a butcher, was in the habit of delivering, from time to time, great numbers of hides, to the said Rice, at the said yard, and had contracted with the said Rice to deliver there all the hides of the cattle slaughtered by him. That the said business was carried on in the name of James D. Barry, living in Washington, till a settlement, which witness understood took place between the said James D. Barry and Robert Barry; after a while it was carried on in the name of Robert Barry. The witness was not present at the settlement, and does not know Barry v. Foyles. 1 P. its nature or terms. During the time that the business was carried on in the name of James D. Barry, Robert Barry, (who resided in Baltimore,) came about twice a year to the yard in Washington, where he spent considerable time in examining and posting the books, with the said E. Rice. Upon one of these occasions, he directed a parcel of leather, which E. Rice had prepared to send on to him to Baltimore, to be kept in the yard till he should return to Baltimore, or ascertain the price of leather there, and give further directions concerning it. During all the time the business was conducted at Washington in the name of James D. Barry, the greater part of the leather manufactured in the yard was sent on to Baltimore to the defendant, and there disposed of by him. The following are the paper writings offered in evidence, to which the testimony of Thomas Rice refers: No. 1. Balance due by James D. Barry to Thomas Foyles on settlement, say $1,640.75, up to this date, say April 5, 1817, $1,640.75. EDMOND RICE. No. 2. Amount of hides and skins received of Mr. Thomas Foyles, from the 1st of April, 1817, to this date, say December 27, 1818. 755 hides, at $3.75 per hide, 10 sheep-skins, at 50c. each, January 13, 1819. $2,831 25 5 00 7.00 $2,843 25 EDMOND RICE. No. 3. Amount of hides and skins received of Mr. Thomas Foyles, from the 2d of February, 1819, to 2d of December, 1819. 346 hides, at $3.75 each, $1,297 50 EDMOND RICE. The counsel for the defendant objected to the admission of these papers. His objection being overruled, an exception was taken to the opinion. A verdict was found for the plaintiff below, the judgment on which has been brought into this court by writ of error. In argument, some observations were made on the variance between the manner in which the plaintiff in error was charged in the account filed in the attachment, and in the declaration on which the cause In the account, he is charged on his assumpsit for a sum Barry v. Foyles. 1 P. due from James D. Barry and Co. The declaration charges him as being originally indebted on a transaction with himself. The court attaches no importance to this variance, because when the attachment was discharged by the appearance of the defendant, and giving bail, and the plaintiff, in consequence thereof, filed a declaration, to which the defendant pleaded, the cause stood in court as if the suit had been brought in the usual manner; and no reference can be had to the proceedings on the attachment. Considering the case as it is made out in the pleadings, the defendant in the circuit court is charged, on his original liability, for a transaction of his own. Edmond Rice having been manager of the whole concern for the proprietors of the tanyard in Washington, with power to buy hides and sell leather, there can be no doubt of his power to charge them for skins and hides received by him in the course of business. The papers No. 2 and 3 purport on their face to be an account of transactions of this description. The only objection [*316] made to them is, that instead of the journal of hides delivered on each day, the manager has given, at considerable intervals, the total amount of hides received from the last preceding settlement up to that time. We are not aware of any principle which can make such a general certificate less binding than one detailing the separate transactions of each day. The proprietors themselves, or either of them, might have made the same acknowledgment; and we perceive no reason why the acknowledgment of the manager, so far as respects the form in which it is made, should not be of the same obligation as that of the proprietors. The paper No. 1 is more questionable. It does not purport to be given for hides received at the tanyard, nor does it express the items which constitute the charge; but it is said to be the balance due from James D. Barry, (in whose name the business was conducted,)" on settlement." Edmond Rice, the person who gave this certificate, had authority to give it on account of the transactions of the tanyard; and it does not appear that he had authority to give it on any other account. It is an additional circumstance of no inconsiderable weight that the account closes on the 5th of April, 1817, the day on which the subsequent account, which is avowedly for hides, commences. These circumstances combined were, we think, sufficient to justify the submission of this paper also to the jury. The next objection to the admission of these papers is, that the plaintiff in the circuit court has failed to prove that Robert Barry was one of the proprietors of the tanyard, while the business was conducted in the name of James D. Barry. The evidence on this point was given by Thomas Rice, and has Barry v. Foyles. 1 P. Deen already fully stated. We think the testimony of a partnership was very strong. It could not, with propriety, have been withheld from the jury. The question on which the plaintiff in error most relies remains to be considered. This suit is brought on a partnership transaction against one of the partners. The declaration states a contract with the partner who is sued, and gives no notice that it was made by him with another. Will evidence of a joint assumpsit support such a declaration? Although it has been held from the 36 H. 6 Ch. 38, that a suit against one of several joint obligors might be sustained, unless the matter was pleaded in abatement, yet, with respect to joint contracts, either in writing or by parol, a different rule was formerly adopted, upon the ground of a supposed variance between the contract laid, and that which was proved. This distinction was overruled by Lord Mansfield, in the case of Rice v. Shute, 5 Burr, 2611. The same point was * afterwards adjudged in Abbott v. Smith, [317] 2 W. Black. 947, and has been ever since invariably maintained. The principle is that a contract made by copartners is several as well as joint, and the assumpsit is made by all and by each. It is obligatory on all and on each of the partners. If, therefore, the defendant fails to avail himself of the variance in abatement, when the form of his plea obliges him to give the plaintiff a proper action, the policy of the law does not permit him to avail himself of it at the trial. The course of decisions since the case of Rice v. Shute, has been so uniform, that the principle would have been considered as too well settled for controversy, had it not lately been questioned by a judge from whose opinions we ought not lightly to depart. That judge supposed that if the defendant had no notice in the previous stage of the proceedings which might inform him of the nature of the action, he was guilty of no negligence in failing to plead in abaternent, and ought not to be deprived of his defence at the trial. But the declaration never gives this notice where the suit is brought against one only of the partners. He is always proceeded against as if he were the sole contracting party; and if the declaration were to show a partnership contract, the judgment against the single partner could not be sustained. The cases cited by Mr. Sergeant Williams, in note 4, on the case of Cabell v. Vaughan, 1 Saund. 291, n. 4, shows conclusively that the want of notice has never been considered since Rice and Shute, as justifying this exception to the evidence at the trial. We think there is no error, and the judgment is affirmed. 12 P. 300; 13 P. 302. |