#### Campbell v. Mosby.

Argued November 6th, 1815.

i. Judgments — Credits on — Draft—Case at Bar. — c. being indebted to M. by judgment, gave (with the privity of M., but without his express authority.) to S., who, by virtue of an order from M., had an interest in the same judgment, a draft on L., which was partly paid, and never returned. M. received of a person who undertook the collection, a part of the draft, amounting to more than his share of the judgment, and paid the surplus to the assignee of S. It was adjudged thatC. was entitled to a credit, against the judgment, lor ¡the full amount of the draft.

See Kyd on Bills of Exchange, 125, 126.

The appellant exhibited his bill, in the Superior Court of Chancery for the Richmond District, against the appellee, on the 29th of September, 1809, stating, that pending an appeal from a judgment obtained by the appellee against him in the superior court of law for the county of Henrico to wit, on the 26th of March, 1802, he adjudged the amount including damages and costs with Bartlett Still, the agent of the appellee, and gave him a draft on Lucas Sullivant, of Rranklinton, in the state of Ohio, for the amount, being 433 dollars 33 cents ; that this was done with the privity of Mosby ; the draft had never been returned to the complainant ; on the contrary, Sullivant stated that he had a receipt for 333 dollars 33 cents part thereof, and thought he had paid the balance, and taken it in, though he could not find it. He therefore prayed an injunction, (which the chancellor granted,) and for general relief.

Mosby, by his answer, denied that Still was his agent in any business whatever ; averring, that Campbell offered him the draft, which he declined taking, but said he would give him time to get his money from Sullivant. He farther stated, that, in some transaction between himself and Still, he gave to the latter an order on the sheriff of Henrico, for 200 dollars, part of his execution against the complainant; that he received from Henry Massie, to whom Still remitted the *draft for collection, “all the money which h'e would pay on account of the complainant, which, after deducting the amount of your respondent’s order aforesaid on the sheriff, in favour of Bartlett Still, exceeded what was then due to your respondent thirty-five dollars, or there*234abouts; which surplus your respondent immediately paid over to Prosser and Moncure, to whom Bartlett Still had assigned your respondent’s order aforesaid.”

The plaintiff took the depositions of Sullivant and Massie, which substantially supported the statement made in his bill; but neither of them could tell what had become of the draft. A copy of the receipt for 333 dollars, 33 cents was annexed to each of these depositions, signed by Bartlett Still, with Mosby himself subscribing witness, and dated the 4th of October, 1802. It was proved by the deposition of Still, that he received and forwarded to draft to Massie for collection ; that it never was returned; that the cause of its being put into the deponent’s hands was his being interested in the claim to the amount of 200 dollars; that he did not consider Mosby as having any control over it; but the 'deponent received it with his knowledge, privity, and consent.

The Court of Chancery directed an account; whereupon a commissioner made a report, stating the balance due from Campbell on the judgments, in case he should be credited only for the sum which Massie paid to Mosby, (deducting a commission of five per centum for collection,) as amounting to 401. 13s. 9d. on the 4th of October, 1802 ; and, in case he should be credited for the whole of the draft, as amounting to 101. Is. *l%d.*May 26th, 1802,

Chancellor Taylor made the injunction perpetual, except as to 401.13s. 9d. with interest from the 4th of October, 1802, till paid, and decreed the complainant his costs; from which decree this appeal was taken.

Williams, for the appellant,

relied on two points : — 1. That even if Still was not authorized to take the draft as agent for Mosby, yet, being interested in the judgment, he was competent to negociate as to his own part; and, as he received *it, he became accountable to Campbell for any loss or deficiency. It follows, therefore, (Mosby having admitted the receipt by him of the full amount to which he was entitled, and all that is pretended to be due being claimed by Still,) that a credit should have been allowed by the chancellor for the full amount of the draft.

2. That Mosby, having interfered and received the money from Massie, sanctioned what Still had done, and became bound.

Copland for the appellee.

Mosby refused to take the draft when offered him by Campbell. It was made payable to Still; and therefore Mosby cannot be responsible for it, except for the sum he received. The balance of the judgment belongs to Mosby, as between him and Campbell; though he may be responsible to Still for it, in satisfaction of his own order in Still’s favour. Campbell’s remedy is against Sullivant, who does not appear, by any testimony, to have paid off the draft.

Wednesday, November 8th, 1815,

the president pronounced the court’s opinion, that the bill drawn by the appellant on Lucas Sullivant, in the proceedings mentioned, ought, under the circumstances of the case, to have been considered as a payment of the debt due to the appellee, for the amount thereof.

Decree reversed; and injunction made perpetual, except as to the sum of 101. Is. *7%d.*with interest thereon, at the rate of five per centum per annum, from the 26th day of May, 1802, till payment.