Mehitabel Richardson vs. Lipha French, 4 Met. 577

Hubbard, J. The defence relied upon in this case is, that the money of the plaintiff never came to the use of the firm of P Blodgett & Co., and consequently that the note declared on was without consideration ; that if the money in the hands of P. Blodgett, as one of the administrators of George Blodgett, and belonging to that estate, was used by the firm of P.

Blodgett & Co., the firm were not the debtors to the several creditors of the estate, between whom and them there was no privity, but to the administrators of the estate ; and that the remedy of the creditors, of whom the plaintiff was one, was on the bond of the administrators. Without controverting this proposition, we think the plaintiff’s case can be distinguished from it. The firm of P. Blodgett & Co. have the use of the money of the estate, which they have borrowed from the administrators.

If then the plaintiff, knowing this, is willing to discharge her claim against the estate, and take, in lieu thereof, the note of the firm, it seems to us that the transaction is a valid one, and that the note is given upon a good consideration.

Supposing the transaction to appear in the books of the firm, the administrators on the estate of George Blodgett will be charged with the amount of the note given to the plaintiff; and the note will be entered in the account of notes payable, and the receipt of the plaintiff, and her order for her dividend upon the estate, will be a good voucher for the defendants to sustain their charge for so much money returned to the administrators.

And we are further of opinion, that it was not necessary — as was ruled by the court of common pleas — that the money should have been substantially in hand, at the time of giving the note, to enable the plaintiff to recover upon it against the firm It was sufficient for that purpose, if the money, to which the plaintiff had an equitable claim, had in fact been used by the firm, to authorize the giving of the note so as to bind them ; it being the substitution of one creditor of the firm for another for a good consideration, by consent of the different parties concerned.

For whether the defendant, French, was ignorant or not of the giving of the note, at the time, the -act of his copart ner in this respect is equally binding upon him ; the firm having had the money. The exceptions to the ruling .are sustained, and the cause is remitted to the court of common pleas for a new trial.