Smith and Others, Survivors of Samuel Smith and George Smith, Deceased v Elizabeth Winter
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1507
EXCH. OF PLEAS.
S. C. 1 H. & H. 384; 8 L. J. Ex. 34. For former proceedings see 3 M. & W. 309.
[454] S&UTH and others, Survivors of Samuel Smith and George Smith, Deceased v. elizabeth winter. Exch. of Pleas. 1838.-A retired partner may give authority by parol to a continuing partner to indorse bills in the partnership name, after the dissolution of the partnership. And where the retired partner stated that he left the assets and securities of the firm in the hands of the : continuing partner, for the purpose of winding up the concern, and that he had ( no objection to his using the partnership name :-Held, that the jury were justified in finding that the continuing partner had authority to indorse promissory notes, so left in his hands in the partnership name.-A. indorsed to S. & Co., as a security for advances made to him by them, certain promissory notes made by B. While i the njates were running, A. stopped payment, and a deed was executed by him j and spveral of his creditors, and among them by S. & Co., whereby his affairs were placed in the hands of inspectors, and the creditors, parties to the deed, 1508 SMITH V. WINTER 4M.&W.4M. agreed on certain terms not to call for or compel payment of the debts due from him for the period of three years. After the execution of this deed by A. and S. & Co., and before the notes became due, B. signed a written consent to the creditors' signing the deed, and giving time to A., without prejudice to their claims on her, B. :-Held, that her liability on the notes to S. & Co. was thereby revived. [S. C. 1 H. & H. 384 ; 8 L. J. Ex. 34. For former proceedings see 3 M. & \V. 309.] Assumpsit by the indorsees against the maker of three promissory notes ; the first and second for 20001. and 30001., dated 30th of April, 1831, payable six months after date ; the third for 20001., dated fith July, 1831, payable three months after date. There were also counts for money Lent, money paid, money had and received, interest, and on an account stated. The defendant pleaded non assumpait, and several speeial pleas, of which one only (the ninth) ultimately became material in the case. Thijt plea alleged, that the defendant made the notes in the first three counts mentioned, at the request and for the accommodation of one John Irines, without any value or consideration for paying the amounts thereof, and that there never was any value for the indorsements in those counts mentioned, of all which the plaintiffs had notice at the time of the indorsement to them ; and that, before and at the time of forbearance and giving day of payment as thereinafter mentioned, the plaintiff's held the said notes as securities for the payment of monay by the said J. Lines, as principal debtor to them, and that the defendant was then liable (if at all liable) to the plaintiffs upon the said notes only collaterally, and as a surety for the said J. Imies, and not otherwise, of which; the plaintiffs, at the time of such forbearing and giving day of payment, had notice : and that after the said notes were indorsed to the plaintiffs, and before the same or any of them had become due and payable, and before the com-[455]-mencement of the suit, to wit, &c., the plaintiff's, without the knowledge, privity and consent, or authority of the defendant, forbore and gave day of payment to the said J. limes for a long space of time, to wit, for a space of time which did not expire until twelve months and upwards after the said notes became due and payable, of a large sum of money, to wit, the sum of 17,0001. then owing from the said J. Innes to them the plaintiffs, and as collateral security only, and not otherwise, for the payment of gart thereof by the said J. Innes, they, the said plaintiff's then, to wit, &c., held the said notes. Verification. To this plea the defendant replied, that the plaintiffs did not, without the knowledge, privity, consent, or authority of the defendant, forbear and give day of payment to the said John Innes, in manner and form, &u. At the trial before Lord Abinger, C. B., at the London Sittings after Trinity Term, it appeared that the action was brought by the plaintiff's, who composed the firm of Smith, Payne, and Smiths, bankers in London, against the defendant, who was the widfow and executrix of Mr. Nathaniel Winter, under the following circumstances. Mr, Winter, in his lifetime, and up to the month of May, 1830, carried on business in partnership with Mr. John Innes, as West India merchants, under the firm of Nathaniel Winter & Co. From the 1st of May, 1830, to the 16th of May, L831, the business waa carried on under the same firm, by Innes and a Mr. Robert Gumming Norman, On the latter day Innes and Norman dissolved partnership. On the 8th July, 1831, Innes applied to the plaintiffs, with whom he kept an account, to discount the note for:2Q001.r of the date of the 6th July, mentioned in the declaration, which they did. On;the 22nd of July they made him a further advance of money on the deposjt of the other two notes. All the notes were indorsed to them by limes in the name of Nathaniel Winter & Co. Before any of them became due, Innes stopped [456] pajtaent; and on the 1st September, 183 L, his affairs were placed in the hands of Inspectors, and a deed of inspectorship between himself and divers of his creditors wad executed on the same day. The parties to this deed, (which was given in evidence by the defendants), were Innes of the first part; the creditors named in a schedule (amongst whom were the plaintiffs), of the second part; the said II. C. Norman, of theithird part; and George Ward...
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