expressly declared upon the transfer book of the bank; would there be the least color for sustaining the claim now set up? And yet Lynn would be the legal holder of the stock, in such case, as much as in the one now before the court. Full notice of a trust draws after it all the consequences of an express declara tion of the trust, as to all persons chargeable with such notice.

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.

Cited-19 How., 115; 2 Black., 389; 18 Wall., 474; 1 Story, 66; 1 Cliff., 382; 2 Paine., 542; Hemp., 246.

It is a well-settled rule in equity, that all persons coming into possession of trust property, with notice of the trust, shall be considered as trustees, and bound, with respect to that special property, to the execution of the trust. (2 Mad. *ROBERT BARRY, Plaintiff in Error, [*311 Ch.. 125; 1 Sch. & Lef., 262.)

v.

THOMAS FOYLES.

pleading-evidence.

The defendant in error had sued out an attach

Notice to an agent is notice to his principal. If it were held otherwise, it would cause great inconvenience; and notice would be avoided in Attachment-variance-agency-partnership—— every case, by employing agents. (2 Mad. Ch., 326.) Notice to the board of directors, when this stock was transferred 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 anything that ap pears to the contrary, Lynn is fully able to pay his debt to the bank.

ment, under the law of Maryland, against Robert Barry, and had filed an account against James D. Barry, said to have been assumed by Robert Barry, the plaintiff in error. Robert Barry appeared, gave special bail, and discharged the attachment. The plaintiff below then filed a declaration of "indebitatus assumpsit," "for money had and received," and for goods sold and delivered," to which Robwent to trial, and a verdict and judgment were renert Barry pleaded the general issue. The parties dered for the defendant in error.

between the account filed when the attachment isThe court attaches no importance to the variance sued, and the declaration filed after the attachment was dissolved by the entry of bail, and the appearThe case of The Union Bank of George-ance of the defendant. The defendant having pleadtmen v. Laird (2 Wheat.. 390), has been sup- had been brought in the usual manner, and no refed to the declaration, the cause stood as if the suit posed to have a strong bearing upon the one erence can be had to the proceedings on the atnow before the court. But the circumstances tachment. [315] of the two cases are very dissimilar. 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 acccptance 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 anything 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 310*] their own use, for the debt of *Lynn, to the prejudice of the rights of the known cestuis que trust.

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 com

Where the general agent of parties carrying on business in a tan-yard, instead of a journal of hides received for the parties from day to day, gave, at considerable intervals, certificates of the total amount of hides received from the last preceding settlement, up to the periods when the certificates bore date; such certificates are equally binding, as certificates detailing the separate transactions of each day, and may be read in evidence to charge the parties, whose agent the person giving the certificates was. [316]

The principle is that a contract made by 'copartners is several as well as joint, and the assumpsit is and on each of the partners. If, therefore, the demade by all and by each. It is obligatory on all fendant 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 time of trial. [317]

The declaration in an action against one partner only, never gives notice of the claim being on a partnership transaction. The proceeding is always, as if the party sued was the sole contracting party; and if the declaration were to show a partnership contract, the judgment against the single partner could not be sustained. [817]

Where the suit is brought upon a partnership transaction, against one of the partners, and the declaration stated a contract with the partner who is sued, and gave no notice that it was made by him with another person, evidence of a joint assumpsit may be given to support such a declaration; and the want of notice, has never been considered as justifying an exception to such evidence at the

trial. [317]

RROR to the Circuit Court for the county

pelled to execute the trust. Nor has the bank of Washington,

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,

In the Circuit Court for the county of Washington, the defendant in error issued an attachment against Robert Barry, the plaintiff in error; and according to the established practice, the plaintiff in the attachment, filed, at the time it was issued, an account or statement of his claim; by which he alleged that Robert

The plaintiff below complied with the law of Maryland, by stating his cause of action when the attachment was issued; and the defendant appeared and entered a plea thereto. Subsequently, he filed a declaration of indebitatus assumpsit, which was irregular. This cannot If the evidence could in any way charge the be done, and therefore the evidence applied defendant below, it was admissible. Partneronly to the first declaration; which stated an ship may be proved by circumstances; and the assumption of the debt of James D. Barry & court did not decide upon the effect of the tesCo., and no proof was offered of such assump-timony, but only that it should go, generally, tion. The evidence does not show any connection between Rice and the defendant, nor any authority from Robert Barry, by which his acts or acknowledgments could become binding on him; the plaintiffs did not therefore make out the case spread upon the record by the first declaration.

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 was tried. In the account he is charged on his assumpsit for a sum due from James D. Barry & 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.

signed by Edmund 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 tan-yard 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 awhile it was carried on in the Considering the case as it is made out in the name of Robert Barry. The witness was not pleadings, the defendant in the Circuit Court present at the settlement, and does not know is charged, on his original liability, for a transits nature or terms. During the time that the action of his own. Edmond Rice having been business was carried on in the name of James manager of the whole concern for the proprieD. Barry, Robert Barry (who resided in Balti-tors of the tan-yard in Washington, with power more) 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:

315*] *No. 1. Balance due by James D. Barry to Thomas Foyles on settlement, say sixteen hundred and forty dollars seventyfive cents, up to this date, say April

EDMOND RICE.

5th, 1817: $1,640.75. No. 2. Amount of hides and skins received of Mr. Thomas Foyles from the 1st of April, 1817, to this date, say December 27th, 1818:

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 Nos. 2 and 3 purport, on their face, to be an account of transactions of this description. The only objection made to them is, that instead of the journal of hides delivered *on each day, the manager [*316 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 tan-yard, 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 settleEdmond Rice, the person who gave ment." this certificate, had authority to give it on ac755 hides at $3.75 per hide, $2,831 25 count of the transactions of the fan yard; 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.

10 sheepskins at 50 cents

each,

7 calfskins do., at $1 each,

5.00

7.00

$2,843 25 January 13th, 1819. 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 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 tan-yard while the business was conducted in the name of James D. Barry.

The evidence on this point was given by Thomas Rice, and has been 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.VI.. ch. 38, that a suit against one of several joint ob ligors might be sustained, unless the matter was pleaded in abatement, yet with respect to joint

contracts, either in writing or by parol, a dif

to commence a suit against the defaulting post

ligors, in the official bond of a deputy-postmaster, from the direct claim of the United States upon them, on the failure of the Postmaster-General master, within the time prescribed by law. Their liability, therefore, continues. They remain the debtors of the United States. The responsibility of the Postmaster-General is superadded to, not substituted for, that of the obligors. [323]

The claim of the United States upon an official bond, and upon all parties thereto, is not released of this claim is intrusted by law. Such laches have

by the laches of the officer, to whom the assertion

no effect whatsoever on the rights of the United States, as well against the sureties as the principal in the bond. [325]

THIS case was brought up from the Circuit

Court of the United States, for the Southern District of New York, in the Second Circuit, upon a certificate of the judges of that court, that they disagreed on certain points, set forth in the certificate.

The cause was commenced in the District Court of the United States, for the Northern District of New York, and removed by writ of error to the Circuit Court.

ferent 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 Burn, 2611). The
317*] same point was afterwards *adjudged,
in Abbott v. Smith (2 W. Black., 695), and has
been ever since invariably maintained. The
principle is, that a contract made by copart-
ners is several as well as joint, and the assump-ment:
sit is made by all and by each. It is obligatory
on all and on each of the partners. If, there-
fore, 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 abatement, and ought not to be deprived of his defense 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 Caleb v. Vaughan (1 Saund., 191, 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.

Cited 12 Pet., 331; 13 Pet., 311; Abb. Adm., 381.

The following were the points of disagree

1st. Whether the District Court had jurisdiction of the cause.

2d. Whether, by the facts appearing on the record, and admitted by the pleadings, or found by the jury, the sureties are exonerated, or discharged from their liability upon the bond set forth in the record.

3d. Whether the said bond, from the facts so found or admitted by the pleadings, or appearing on the record, can, in judgment of law, be considered as paid and satisfied, or otherwise discharged.

The original suit was commenced in the District Court, in August, 1823, and the plaintiff declared in debt, on a bond, in the penal sum of $6,000. executed on the 1st of January, 1816, by Gerrit L. Dox, Peter Dox, Gerrit La Grange, and Isaiah Townsend; conditioned for the faithful performance of the duties of postmaster, at Albany, by Gerrit L. Dox.

The declaration alleged two breaches of the condition of the bond:"

1. That said Gerrit L. Dox did not, at any time between the first day of January, [*319 1816, and the first day of January, 1817 (he being, during the whole of that time, postmaster as aforesaid), render any accounts of his receipts and expenditures, according to the condition of said bond; but utterly neglected so to do.

2. That after the date of said bond, and more than three months previous to the commencement of the suit, there came to the hands of said Gerrit L. Dox, as such postmaster as aforesaid, the sum of $6,000 for postages, over and above commissions, &c., which he had not paid over to the Postmaster General; but had refused so to do, although often requested, &c. Gerrit L. Dox, the principal obligor, pleaded separately three pleas:

1. Non est factum, and tendered an issue.
2. To the first breach, that he did render true

NOTE. As to bonds of postmasters and official bonds, see note to Postmaster-General v. Early, 12 Wheat.. 136. As to liability of sureties on official bonds, &c., see note to United States v. Giles, 9 Cranch, 212.

accounts of his receipts and expenditures as such postmaster, &c., and tendered an issue.

3. To the second breach, that he had paid to the Postmaster-General all the moneys he had received, over and above his commissions, &c., and tendered an issue.

Issues were joined on these pleas as tendered. The defendants, Peter Dox, Gerrit La Grange and Isaiah Townsend, the sureties of said Gerrit L. Dox, pleaded six pleas:

1. Non est factum, and tendered an issue. 2. To the first breach, that Gerrit L. Dox did render true accounts of his receipts and expenditures, &c., and tendered an issue.

3. To the second breach, that the said Gerrit L. Dox had paid to the Postmaster-General all the moneys he had received over and above his commissions, &c., and tendered an issue. 4. To the second breach, that they executed the bond as sureties; that Gerrit L. Dox was removed from office on the first day of July, A. D. 1816; that the Postmaster-General, knowing there were sureties, did not open an account against Gerrit L. Dox, and make any claim and demand on him for the moneys received by him as postmaster, until the first day of July, A. D. 1821; at which time, the Postmaster-General did open an account against, and claim and demand of said Gerrit L. Dox, the sum of $3.041.35; that Gerrit L. Dox, at the time of his removal from office, was solvent, and able to pay his debts, and continued so for three years, and until the first day of July, 1819; and that after the first day of July, 1819, and be fore the first day of July. 1821, to wit, on the first day of January, A. D. 1820, he became insolvent and still continues to be insolvent. This plea concluded with a verification. 320*] *5. To the second breach, that they executed said bond as sureties for said Gerrit L. Dox; that said Gerrit L. Dox was removed from office on the first day of July, A. D. 1816; that the Postmaster-General, well knowing that they were sureties for Gerrit L. Dox, and that Gerrit L. Dox had neglected and refused to pay over to the Postmaster-General the balance due from him at the end of every quarter while he was such postmaster, did not commence a suit against said Gerrit L. Dox for his neglect and refusal to pay, until August, in the year 1821, at which time a suit was commenced against him and his sureties, on the bond in question; that Gerrit L. Dox was solvent at the time of his removal from office, viz., on the first day of July, 1816, and continued so for three years, and until the first day of July, A. D. 1819; and that after the first day of July, 1819, and before the first day of July, 1821, viz., on the first day of January, A. D. 1820, he became insolvent, and still continues to be insolvent. This plea also concluded with a verification.

The issues were tried at the May session of the court, in the year 1824. All the issues were found for the plaintiff, except those joined on the fourth, fifth, and sixth pleas of the sureties, which were found in favor of said sureties; the breaches assigned, having been found to be true, as above stated, the damages on them were assessed at $6,000.

After the verdict, and at the same session of the court, a motion was made on behalf of the said Postmaster-General, for judgment in his favor, notwithstanding the verdict against him, on said fourth, fifth, and sixth issues with the sureties, and judgment given for the said plaintiff. on the part of the Samuel A. Foot, of Wirt, Attorney Genfor the Postmaster

The case was argued, plaintiffs in error, by Mr. New York, and by Mr. eral of the United States, General.

Mr. Foot.

This suit was instituted to recover a balance due to the United States by Gerrit L. Dox, as postmaster at Albany, in New York. Gerrit L. Dox was appointed postmaster in January, 1816, and was removed from office in July, 1816. The breaches assigned were: 1. Not rendering accounts as postmaster. *2. Not paying over moneys he ought [*321 to have paid.

The issues upon all the pleas put in by Dox alone, and by him and his sureties together, were found for the plaintiff below; the only questions in the case, arise on the fourth, fifth, and sixth pleas, put in by the sureties only. The District Court held these pleas to be immaterial, and gave judgment for the PostmasterGeneral.

It is admitted, that since this suit was commenced, cases have been decided in this court which bear upon the question whether the neglect of the officers of the government to proceed against a debtor to the public will discharge the sureties. (9 Wheat., 720; The United States v. Kirkpatrick, 9 Ibid., 720; The United States v. Vanzandt, 11 Ibid., 184.) But the principles settled in these cases, are not entirely applicable to this. The law of the United States relative to the postoffice establishment, makes it the duty of the PostmasterGeneral to file, every six months, in the treasury department, a transcript of the balances due from the postmasters, and to sue for the same; and if he omits so to do, the balances are to be charged to the Postmaster-General, and to be collected from him. Thus the PostmasterGeneral becomes himself a debtor to the government, for the amount of the delinquency of every postmaster; unless he has taken measures to collect the same; and he may use the name of the government for the purpose. This suit is, therefore, for the The plaintiff took issues on the first, second, use of the Postmaster-General, as he had and third pleas of the sureties, as they were neglected to proceed against Gerrit L. Dox, for tendered; and to the fourth, fifth, and sixth six years; and the sureties are entitled, against pleas, respectively, he replied that said Gerrit him, to the benefit of his laches. This case is L. Dox was not solvent at the time of his re-different from those referred to; and the plaintmoval from office, nor did he continue to be solvent for the space of three years thereafter, or any part of said time; nor did he, on the first day of January, 1820, or at any other time after the first day of July, 1819, become insolvent; and thereupon issues were joined. Peters 1. U. S., Book 7.

iff, who had a verdict in his favor on the fourth, fifth, and sixth counts, is entitled to the presumptions, that the Postmaster General was charged with the balances due by Gerrit L. Dox, and that he has paid the same to the United States. In the case of the Postmaster

11

161