
    The Executors of Brown v. Brabham, Administrator, and others.
    Case of payment.
    Heard before Judges Hitchcock and Burnet, in Montgomery county, 1827.
    This bill was filed for the purpose of compelling payment of a balance claimed to be due on the partnership accounts between the late firms of Sutherland & Brown, and of McCullom, Butler, & Landon.
    The account of Sutherland & Brown, on the dissolution of their partnership, had been assigned to Brown. A settlement was afterward had between Brown and McCullom, by which the balance due to the former, from the firm of McCullom & Co., was ascertained. All the parties to the transaction, except Sutherland, are deceased. Most of them were insolvent, and the persons who administered on their estates are most of them dead, and several of them insolvent.
    
      The object of the bill is to require the payment of the aforesaid* balance, from Brabham, surviving administrator of McCullom.
    ^Sutherland, having asssigned his interest to the complainant, has disclaimed.
    Brabham relies on the statute of limitations, and on a receipt from Brown, for a draft on General Porter, in favor of Butler, and. indorsed by him to Brown.
    The case was argued by Stoddart and Bacon, for complainant,, and Smith for defendant.-
   By the Court :

It is not necessary to examine many of the grounds that have-been taken and relied on in the argument. It appears to us¡ that Brown’s receipt is decisive of the matter in controversy. That receipt was given in 1811, after' the settlement, referred to in the-bill, had been made. It acknowledges that Brown had received, on account of the balance now claimed, a draft for six hundred and eighty dollars, drawn on Porter, in favor of Butler, and indorsed by him.

A number of objections have been taken to the allowance of this receipt. It is contended, in the first place, that the proceeds of the draft have never been received by Brown. This seems to be the fact, but as he constituted Butler his agent, to collect the-money, by whom it was received, and misapplied, he can not avail himself of this objection. A payment to Butler was in effect payment to the complainant, whose agent he was, and it does not rest with him to charge the defendants with the consequences of his-own misplaced confidence.

It is said, in the second place, that the draft was Butler’s private property, and that being indebted to Brown in his private, as-well as in his partnership capacity, he had a right to direct the money to be applied on either account. This is not denied, but so-far as there is evidence on this point, it goes to show, that the draft was assigned for the purpose of extinguishing the partnership debt, but if not, there is no evidence to show that Butler directed it to be otherwise applied; and if no directions were given, the house had a right to credit it to either account, and he has applied it to the partnership account. The receipt given for the. draft specifies that application, and was received without objection. Butler did not dispute it in his life, nor has *it been* -disputed since, by any person .legally representing him, and certainly the complainant, who made the application, can not now -be allowed to question it.

Again, it is said that Brown used due diligence by employing a ■confidential agent, as he had a right to do. This is admitted; but as that confidential agent collected the money, it is the same thing to the defendant as if Brown had collected it himself. The amount -of the draft exceeds the balance due on the settlement, and extinguishes the whole debt. It is not necessary, therefore, to consider •any other point made in the cause.

Bill dismissed.  