#### TABER *v.*PERROTT AND LEE

*Jlbsent....Todd, J.*

ERROR to the Circuit Court for’ the district of Rhode Island, in an action of *assumpsit*to recover from the Defondant’s *Ferrott and Lee,*the amount of certain bills of exchange put into their hands, to collect, by the Plaintiff *Tuber*and his deceased *partner, Gardner.*

ov;,n'Je^J °n^u of exchange hvers’it to b. to deliver to C. an/whenSieute<1 to place the amount to the ci-edit of A ami b, m ac-mount i>r< re*40fuses to place Of A & B°TMho settle their ac andpay him" the bithmce! A. afterwards amountreceh'! ed upon the competent& witness for A.

*39At the trial below several exceptions wer§ taken, in Which the following facts appeared.

The Plaintiff produced a witness, *John L, Boss,*who being duly admitted and sworn testified, that Messrs. Taber and Gardner, merchants of Rhode island, were *40holders and' owners of French government bills to a. large amount, which were by them indorsed in blank, and given to, their agertt, the said John L. Ross to take to France for collection. That be, Ross, had no interest the bills and received them as agent for the Plaintiffs, ivnd this Was known to Perrott and Lee, That he carried them to France in. 1802, in a vessel of the Plaintiffs, with a cargo consigned to the Defendants, Perrott and ^ec, of Bourdeaux> in which cargo Boss had an intercst. That he delivered the bills to Perrott and Lee to negotiate and receive the amount.' That Boss went to Paris in October, 1802, anti while there received a letter on the 26th October, from Perrott and Lee informing hirn that *Hotel,- Thomas ¿j-,Co.*of Paris, were'the house to whom the bills were sent, arid introducing him to that house! and they wrote a letter to *Hotel. Thomás*<§• *Co.*directing them, when the bills were paid, to place the money to the credit of Perrott and Bineau, a banking house at Bourdeaux, which Perrott is one of the Defendants. On the 12th of January, 1803, Boss called on Hotel, Thomas & Co.’ and was informed that the bills had been paid by the French government on the 7th of January preceding, and Boss saw the proceeds of the bills credited on the books of Hotel, Thomas & Co. to the said. Perrott and Biheau, according to the directions of Perrott and Lee. That Boss on the 14th January, advised, tlje Befendents that the bills were paid, apd directed the proceeds to be applied to the credit of the account of Taber, Gardner and Boss with them. £)n the 29t!i of January,-at Paris,' Boss saw bills of exchange drawn by Perrott and Bineau ón Hotel, Thóipas &' Co. and accepted! by them at 80 .or 40 days sight, which were acknowledged by the/Defend ant, Perrott., to have been drawn for life said proceeds. .That the said bills so drawn and accepted were in the hands of one Charles Bodin, but whet her they have been further negotiated or not, or paid or not, Boss could not tell. That Boss returned to Bourdeaux on the 26th of February, and left Bourdeaux about; the 6th of April, 4803. That until .the day before he left Bourdeaux he had no intimation from the Defendants that" they would not credit the amount of the said bills to the account of Taber, Gardner and Boss. That the Defendants refused to give such credit.

Perrott and. Lee, who provided. the return1 cargo, *41brought Taber, Gardner and Boss largely in their debt in account current; and Boss,on the 6th of'April, 1803, signed the account, stating that when the monies were received on the bills from Hotel, Thomas & Co. the amount should be passed to ..the credit of Taber, Gardner and Boss. Perrott and Tee afterwards received the whole balance of the said account from Taber, Gardner and Boss, not having credited the proceeds of the said bills; and the present suit is brought by Taber, surviving partner of Taber and Gardner, the original holders of the bills, to recover their amount.

The principal exception was to the charge of the judge who directed the jury to find for the Defendants, on the ground that the witness, Boss, had not been made a party Plaintiff in the suit.

The case was argued by Pi B< Key, for the Plaintiff in error, and by Hunter, for the Defendants.

*February 15th.*

Absent.¿..Todd, Ji

Marshak, *Ch. J.*

delivered the opinion of the Court as follows:

This suit was brought by the Plaintiffs in error, in the Circuit Court of the United States, for the district of Rhode Island, to recover from the Defendants the amount of certain bills drawn by general Le Clerk on the government of France.

The declaration contains several counts, some special, stating agreements between the pallies for the payment of the bills; others general, among which is a count for money had and received by the Defendants, to the use of the Plaintiffs.

It appeared, at the trial, that the Plaintiffs and John L. Boss, were concerned in certain commercial speculations, in the prosecution of which John L. Boss sailed, in 1802 and 1803, to Bourdeaux, in the Polly,, with cargoes in which they were jointly interested. On the first voyage, Boss carried with ¡dm the bills of exchange for the amount of* which this suit was brought, indorsed ,in blank by the Gardner, which he delivered to *42the Defendants for collection. The amount, when coileeted, was to be placed to the credit of the return cargo of the Polly, m which the Plaintiffs and John L. Boss were jointly concerned. The account was settled without giving credit for the amount of these *hills;*and Taber, Gardner and Boss have been compelled to pay the balance acknowledged to be due. This action was brought to charge the Defendants with the bills, alleging, that their amount has been received.

At the trial, the Plaintiffs offered Boss as a witness, for the purpose of proving the ^ability of the Defendants for the amount of the bills. He swore that he had no interest, in the cause, nor in the *bills;*but his testimony was objected to by the Defendants on the ground of his being interested *;*and the Court was moved to instruct the jury that the action could not be sustained, because Boss was not a party Plaintiff in the declaration. This direction was given by the Court, and excepted to by the counsel for the Plaintiffs. A verdict and judgment were rendered for the Defendants, whi9h,are brought into this Court by writ'of error.

The Defendants in error contend, that the mils of exchange were part of the cargo of the Polly, and consequently the joint property óf tlie owners of that cargo. But of this there is no other evidence than that Boss was the bearer of those bills indorsed in blank, and that tlmir proceeds, if received, were to. be placed to the account of the return cargo.. . This might very well be, and yet Taber and Gardner remain the sole owners of the bills. Their amount, if received, might be credited to all the partners ih .their account with Perrott and Lee, and then be credited to-Taber and *Gardner*in settling the accounts of the partnership.. Boss then would have no interest in the bills, unless they should be collected and' carried to the credit of the return cargo. That account having been settled without including this item, it is not necessarily implied, from the facts in the case,' that Boss was interested ; and he swears that lie was not.- This Court is of opinion that the Circuit Court erred in directing the testimony of Boss to be *disregarded;*and also in directing the jury to find for the Defendants because he was not made a party Plaintiff in the suit.

*43Several other opinions were given by the judge, to whith exceptions were taken j- but it is unnecessary, to review them as they depended oh tin- opinion that Boss was interested in the bills for whicii the action >was brought.

The judgment is reversed, and the cause sent back for a new trial.