
    Rowland Brown versus James Bull.
    A request to put certain lottery tickets for sale into such hands as the person addressed shall think safe, is not an authority to sell the tickets on credit, at the risk of the person sending them.
    Proof of money paid to the partner of one who was the creditor’s attorney, but not himself joined in the power, is not evidence of payment to the principal.
    If a single judge receives and files exceptions to his opinion, and thereupon the action is continued to the next term, and the same judge, then deeming the exceptions frivolous, enters judgment, and awards execution, the Court will not set aside the judgment upon motion, but will put the party to his writ of error.
    This was assumpsit, on a promissory note made by the defendant, for 1131 dollars, 31 cents, payable to Thomas Dwight, or his order, on demand, dated September 10, 1804, and endorsed to the plaintiff. Upon the general issue pleaded and joined, the cause was tried before Sewall, J., at the December adjournment, 1805.
    At the trial the parties agreed to the making and endorsing of he note; and it was further agreed that the action should be considered as between the original promisee and the promisor. Thereupon the defendant, to show that the sum of 118 dollars, 25 cents, ought to be deducted from the amount of the note, gave l * 212 ] in evidence a letter from said * Dwight, to the defendant, dated May 19, 1802 (in which he informs the defendant that he sends therewith 200 tickets in the South Hadley canal lottery, and requests him to put them into such hands as he, the defendant, shall think safe, taking receipts therefor, and engaging him a compensation for his trouble). Also an account stated, of which the balance agreed with the amount of the note, on the back of which was a memorandum, written by said Dwight, which admitted that the sum of 118 dollars, 25 cents, was due to the defendant, from purchasers of the said tickets, and that the recovery of that sum was doubtful.
    The defendant also read in evidence the memorandum on said note, in the handwriting of the promisee (purporting that the defendant had suggested doubts whether he should be able to collect moneys due from certain individuals named, amounting to the last-mentioned sum, and wished to be considered by the managers of the lottery, or the proprietors of the canal, and to have that sum deducted from the amount of the note).
    And the defendant’s counsel, to prove the payment of a further sum of 40 dollars, offered, in evidence to the jury, a paper purporting to be a receipt for that sum, to be paid to said Dwight, or his attorney, and signed by James S. Dwight. Jonathan Dwight, jun., was produced as a witness, and proved the handwriting of James S. Dwight, and also swore that the said James and himself commonly kept their accounts of cash together, and made no separate accounts; that the witness was the attorney of Thomas Dwight, and at that time had the note in possession, but did not know that the said sum had ever been received by him, or had ever come to the use of the said Thomas.
    
    The judge refused to let the said receipt go in evidence to the jury; and directed the jury, that the said letter did not show that the defendants had authority to sell the tickets on credit, on account of the managers, and that by making said note, the defendant had precluded himself from claiming or demanding said deduction. To these opinions of the judge, the defendant’s counsel filed exceptions. There was a verdict for the plaintiff, and the action was continued to the next April term, when Scwall, J., again sitting in court, deeming *the said exceptions to [ * 213 ] be frivolous and immaterial, entered judgment according to the verdict, and awarded execution.
    And now, Bliss, for the defendant, contended that the letter from Thomas Dwight to the defendant, authorizing the defendant to intrust any persons, at his discretion, with the tickets for sale, was tantamount to an authority to the defendant himself, to sell on credit. It was, perhaps, evidence of still greater confidence. The papers produced show, that the defendant has always claimed the allowance, and though, by giving a negotiable security for the whole amount, he might have been prevented urging his claim against an endorsee, yet, by the agreement of the parties, he was to have the same benefit in this action, as if it had been brought by the original promisee.
   The opinion of the Court was delivered by

Parsons, C. J.

It appears that the defendant had been employed by the promisee to sell tickets for him; that on an account stated by him, there appeared to be due the sum mentioned in the note, and that the note was given for that sum ; and it being agreed by the parties, that the defendant may have the same defence in this action, which he could have if the promisee were plaintiff, he offered to give in evidence that the account stated, according to which the note was given, made the balance too large, by 118 dollars, 25 cents, which sum ought to be deducted; that he was authorized to sell the tickets on credit; and that on that sale there was a loss of that sum, for which he had not credit in the account. To prove these facts he relied on a memorandum on the account stated, to prove the loss; and he offered a letter of the promisee, which is in the case, to prove that he was authorized to sell on credit. The judge rejected this letter, as irrelevant, and for this cause the first exception is filed.

Upon looking into this letter, we are not satisfied that it contains a sufficient authority to sell on credit at the risk of the managers, nor does it appear that the defendant considered it to contain such authority; for he frankly appeals to the liberality of the managers or proprietors as to any loss he anticipated, but which he produced at the trial no evidence that he had finally sustained.

I * 214 ] * In the course of the trial, the defendant, to prove payment of 40 dollars, in part of the note, gave in evidence a payment of that sum, to James S. Dwight, to be paid over to the promisee or his attorney; that the attorney was Jonathan Dwight, jun., a brother of the said James; that at the time of this payment, the attorney had the note in his custody; and that the two brothers kept their cash accounts together, and not separate. Jonathan Dwight, jun., swore that be had no knowledge that the same money was ever received by him as attorney, or ever came to the use of the principal. This evidence, the judge directed the jury, was not sufficient, to prove payment of the 40 dollars to the promisee. A nd for this direction the second exception is filed.

As to this last exception, we are likewise satisfied that the direction was right. To make the case the strongest for the defendant the evidence will admit, it appears that the principal had appointed an attorney, with authority to receive this money. This attorney was in partnership with a third person, as to other matters; but the third person had no concern or power in the attorneyship. The defendant pays the money to this partner of the attorney; and there is no evidence that the money ever came into the hands of the attorney or his principal. Certainly this cannot be evidence of payment to the principal. The defendant paid the money to a third person, who had no authority to receive it, and who is accountable for it to the defendant.

It is the opinion of the Court that the defendant take nothing by his exceptions. _

After this opinion was delivered, Bliss moved the Court to set aside the judgment, as having been rendered without competent authority. He contended that, by permitting the exceptions to be filed, and ordering a continuance of the cause, for the purpose of submitting them to the opinion of a full Court, the judge had determined, that the exceptions were not frivolous or immaterial. He had then exercised all the jurisdiction, which, sitting alone, he had over the action. He was functus officio. The statute contemplates that the same judge, against whose opinion the exceptions are filed, * shall determine them frivolous [ * 215 ] or not, and that at the same term at which they are offered. The same judge holding the Court at the second term, can make no difference in this matter.

As to the power of the Court in this case to set aside the judgment, in this summary way upon motion, Bliss suggested, though with some hesitation, that such power might be inferred, from the words of the latter part of the statute authorizing these exceptions. It is there declared, that the Court, held by three or more justices, to which such action shall be continued, shall do therein what to law and justice shall appertain.

The Court observed to Hooker, who was counsel for the plaintiff, that it was unnecessary to hear him, as they should give no opinion as to the authority of the judge on a motion like the present; If the defendant thought it expedient to bring the question before the Court for a solemn decision, he must sue out his writ of error coram vohis. The error, if it was one, was matter of record.

Note. Sedgwick, J., being one of the proprietors of the South Hadley canal, and apprehending them interested in this action declined giving any opinion.  