CIRCUIT COURT OF THE UNITED STATES. BEFORE Summer Circuit. RHODE ISLAND, JUNE TERM 1828, AT NEWPORT. Hon. JOSEPH STORY, Associate Judge of the Supreme Court. TOMBECKBEE BANK US. DUMELL & LYMAN. A bill drawn upon a partnership, but not accepted until after a dissolution of the partnership publicly announced, binds only the partner, who accepts it, and not the other partners, who have not consented thereto. ASSUMPSIT on a bill of exchange drawn on 17th of March, 1827, in Alabama, by Stone, Ellis & Co., at sixty days' sight, on the defendants, for $ 3000, payable to Moses Sewall or order, and by him indorsed to the plaintiffs. The declaration averred a presentment for acceptance, and an acceptance and subsequent non-payment. There were other counts on other similar bills. Plea, the general issue. At the trial, the sole defence relied on was, that the acceptance was made by Jacob Dumell after the dissolution of the partnership between him and his co-defendant, John Lyman. It appeared in evidence, that the firm was dissolved on the 1st of January 1827; but it was not advertised in the newspapers until the 5th of April 1827, when it was published at Providence, where Tombeckbee Bank vs. Dumell and Lyman. the firm carried on business. The acceptances of all the bills were after the dissolution was so advertised. STORY J. Upon this statement of facts, which is not controverted, I am of opinion, that the plaintiffs are not entitled to recover. No partner has any authority after a dissolution of the partnership, to bind his copartners by any new contract. The acceptance of these bills is altogether a new contract. It is true, that if the partnership is still ostensibly carried on in the name of the firm, and no public notice is given of the dissolution of the partnership, though it is secretly dissolved, third persons, dealing with the firm upon the faith of the partnership and joint responsibility, are entitled to hold all the partners. But it is otherwise, where the dissolution is made public. Here, before the acceptance, the dissolution was publickly announced. The partners had not held out to the payee, or the present holders, that they would accept the bill. Every non-accepted bill is necessarily taken upon the faith and credit of the drawer; and no person can bind the drawee by his acceptance, except a person having an express or implied authority for that purpose. After the dissolution of the partnership, and a public notice of it, there was a withdrawal of all such authority; and consequently the acceptance, as to John Lyman, is void. Upon principle then, the action, being joint upon a joint acceptance, fails as to both. Mem. By consent of the parties, the plaintiff discontinued as to Lyman, amended his declaration, and took a judgment against Dumell alone. William A. Burgess for the plaintiff. Richard N. Greene for the defendant, Lyman. Thomas Burgess for Dumell. Thatcher vs. Winslow. DAVID THATCHER vs. ANDREW WINSLOW. An agent, to whom a negotiable note has been indorsed by his principal for the benefit of the latter, and who has no interest in the note, cannot sue as indorsee upon the note. No person can sue as indorsee, unless he be the owner of the note or has some legal or equitable interest therein. ASSUMPSIT on certain notes made by Lewis Rousmaniere, payable to the defendant or his order, at the Merchants Bank in Newport. The declaration contained various counts against the defendant, as indorsee, in favour of the plaintiff, as indorser. Plea, the general issue. At the trial, the defence turned principally upon the point of forgery of the defendant's name, as indorser, by Rousmaniere. Another point was made, viz. that the plaintiff was not the owner of the notes in question, but that they belonged to the Merchants Bank at Newport, by which bank they were originally discounted; and that the notes, since the death of Rousmaniere, (who committed suicide,) had been delivered to the plaintiff by the Merchants Bank for the purpose of suing the same in his own name in the Circuit Court; and that plaintiff had no interest whatsoever therein. A witness, called for the plaintiff, upon his cross examination, fully established the latter point. STORY J. If the facts stated by the witness on this last point are not denied, I think the cause is at an end. Unless the plaintiff is a real holder of the note, and has some interest in it, he cannot maintain an action as indorsee against the defendant. Here the proof is, that the Merchants Bank is the real holder, and the plaintiff is merely an agent for the bank. I take it not to be competent for a mere agent to maintain an action on a negotiable note in his hands, although it be with the consent of his principal. He must be the owner of the note, or have some Thatcher vs. Winslow. substantial interest therein. Primâ facie indeed the possession of such a note is evidence of the party's being a holder for a valuable consideration, and unless the note has been previously stolen, or received by him under suspicious circumstances, he is not bound to prove by other evidence, that he is such a bonâ fide holder. But if it is admitted or proved aliunde, that he is but a mere agent, and holds the note as such, he is not competent to recover a judgment upon it in his own name.1 The plaintiff discontinued his suit. Town of PROVIDENCE vs. MARY MANCHESTER. A bill in equity was brought against a feme sole to compel her to make an acknowlcdgment of a deed, made by her and her late husband in his lifetime, of her land, on a sale thereof. In her answer, she denied all equity; and asserted, that the sale was without her consent, and that she received no part of the consideration money. It was held, that the plaintiffs were not entitled to any relief. THI HIS was a bill in equity against the defendant, for an injunction to a suit brought in this Court to recover certain land belonging to her, of which a deed had been executed by herself and her husband in his lifetime, on a sale thereof to the plaintiffs. The acknowledgment had not been taken in the form prescribed by the act of Rhode Island, (Digest of 1*98, p. 267, § 7,) so that it was incompetent to bind her. There was also a prayer for general relief. The answer denied all equity; and asserted, that the defendant had received no part of the purchase money; that the sale was on her part involuntary, and under the influence of her husband; that she did not know the contents of the deed; that she never 1 See Gunn vs. Cantine, 10 Johns. R. 387.-Gilmore vs. Pope, 5 Mass. R. 491. Providence vs. Manchester. made any contract for the sale; and never intended to make any acknowledgment, unless forced to it. The cause was set down for argument upon bill and answer. The cause was shortly argued by Whipple and Searle for the plaintiffs, and by Crapo and Richmond for the defendant. STORY J. The answer denies all equity. No contract was made for the sale with the defendant; she received no part of the purchase money; and now insists, that the acknowledgment, such as it is, was involuntary on her part, and produced by the influence of her husband. Under these circumstances, standing wholly uncontradicted, there can be no decree for an injunction or any other relief. The bill must therefore be dismissed with costs. Bill dismissed accordingly. NATHAN CARR vs. Joseph Hoxie. A delivery of a deed is essential to its validity. If it be delivered as an escrow on conditions, those conditions must be complied with before it can take effect, as a deed. If an instrument be signed and sealed by the grantor, but is left with a third person, without any express or implied authority to deliver it to the grantee, it is not presently the deed of the grantor. EJECTMENT for a tract of land in West Greenwich. Plea, the general issue. At the trial, the plaintiff proved a title to the premises by a deed from Simon Reynolds to him, dated the 18th of July, 1826, the execution of which was established. The defendant then set up a title to the premises under a prior deed from the same grantor, dated the 26th of May, 1826. The execution of this deed being disputed, a witness, Jonathan Nichols, was called by the defendant. He testified, in substance, that he was called |