
    Assignees of Perman & Bacon, and Administratrix of George Perman vs. Adam Tunno, et. al.
    
    Heard before Chancellor J. Johnston, Charleston, May Term, J834.
    This case having been reversed as against the executors of Tun-no, wno died pendente lite, came on to be heard 7th May, 1834. It appeared that it was referred to the commissioner, to report on the case generally, and his report with exceptions thereto, came on at the hearing.
    What I make of this anamobus proceeding is this, that there has been no decree on the equities, and that the report is taken as evidence merely.
    The question whether Bacon was properly rejected by the commissioner, is not pressed. It is unnecesary, therefore, to decide it.
    On the pleadings, aud evidence taken* the court must base its de-cisión.
    Tunno took a bond of the date of the 17th May, 1825, signed by Geo. Perman and Edward Bacon. In the body of the bond, the obligors say, “ We, G. Perman and Edivard Bacon, now trading under the firm of G. Perm in % Co., are held and bound to Adam Tunno, in the sum of $5,560 ; for payment whereof, we bind ourselves, and each and every of our heirs, executors, and administrators, jointly, and severally.” The condition underwritten, is, “ That if the above bound G. Perman and Edward Bacon, their heirs, executors, and administrators, shall pay Tunno the sum of $2,780, with ¡merest from the date, by the 1st February, 1826, the bond is to be void.”
    G. Perman and E. Bacon, when they gave this bond were trading under the partnership style of Geo. Perman & Co. After the execution of the bond, Geo. Perman died, the bond remaining in full force and unpaid. ilis widow, Isabella Perman, and one of the plaintiffs, administered to him. She and Bacon instituted a new partnership, under the style of Perman & Bacon, and proceeded in business. At Perman’s death, he left among his credits, a claim on one Saltus, of Beaufort. The administratrix sued on it, in the Court of Equity, for that district, and obtained a decree, which brought the money recovered into the hands of Grayson, the commissioner, who is a defendant here. Grayson, taking a bond of Indemnity from Tunno, paid over to Tunno on his bond a sum of money out of that recovered by administratrix, against Saltus.. Tunno then died. And this bill is brought by the admi. nistratrix, joining to herself, as co-plaintiffs, certain persons to whom the firm of Perman & Bacon have assigned their credits and assets, against Grayson, an¿ Tunno’s executors. Bacon is no party.
    The plaintiffs allege, that upon the institution of the new firm of Perman & Bacon, that firm advanced large sums of money, to enable Mrs. Perman, to pay the debts of her intestate, which she applied to that purpose. That, when they loaned those sums, they hoped and expected to be refunded from demands owing to the intestate, when collected ; and “ looked principally to the debt on Saltus.” They further allege, that Tunno procured the consent of the administratrix, to draw the money from Grayson on his debt, under a misrepresentation to. her, that his bond was a bond on Geo. Perman. But that she learning thai it was a bond on Geo. Perman & Co., declined giving him an order on Grayson for the money. But, that, without any authority he still went on to require, and Grayson to pay it; Grayson securing himself against the consequences of his unauthorized payment by Tunno’s bond of indemnity. The commissioner reports, that the adminis-tratrix paid off several demands against the estate of the intestate, of higher rank than bond debts. But no account has been taken of Geo. Perman’s assets, nor of the account between him and the firm of Goo. Perman &• Co., so as to show that the administratrix, is in advance of the assets of her intestate, in paying the debts she did ; and requires to' be indemnified out of the assets, which Grayson paid to Tunno.
    The first question is, what is the character of the bond held by Tunno 1 Is it a partnership bond, or a bond against the obligors as individuals 1
    
    It was argued that it cannot be a partnership bond, because there can be no such thing. But I apprehend this is a mistake. A part-nersliip may bind itself by deed; and a bond is but a deed. The cases quoted do not establish that a partnership may not be bound in a bond, if it be executed properly. One partner cannot sign in the partnership name, so as, thereby, to bind any but himself in dividually. Such an execution does not bind the firm. But the cases are express, that if lie sign? by the assent, and in the presence of the other, the firm is bound.
    The cases rightly considered, do not go on the impracticability of creating a bond by a partnership, binding on it as a partnership ; but relate simply to the mode of doing it — lo the mode of creating the bond.
    In the bond signed by G. Perman and Ed. Bacon, they describe themselves as partners, exactly in the way they would be required to do, if they were suing on a partnership demand — or should be described if sued on a debt due by them as partners. I think this is sufficient to make the bond a partnersnip bond at least.
    But Í think it is not only a bond of the firm, but that the other words employed in it, make it, also, the joint and several bond of the obligors, as individuals.
    Now, the plaintiffs admit in the bill, expressly, that if it was the bond of G. Perman, the administratrix assented to Tunno’s receiving the money from Grayson.
    I may as well here intímale my opinion, that if the bill be not in some sort construed to mean, that Tunno got the money from Grayson, with the assent of the administratrix, her remedy would seem lo be at law for money or securities of the estate. Tunno’s possession would bo tortious. If he received money, the tort might be waived. And assumpsit for money liad and received to the use of' the admi> isrratrix, would lie. It securities, then trover would lie, if assumpsit would not.
    Taking h for granted, however, that the administratrix in some ■way gave authority to Tunno to receive, her right to the amount refunded must depend altogether on her having, by mistake, misapplied the assets m paying him what he was not t-mitled to.
    It is conceded, by the defendants, that if in due course of ad" ministration, the amount received by Tunno, would not have gone to him, a refunding may be ordered. This iD- liberal, for the case of mistake is not made by the bill. But how can this be ascertained, without taking an account of the intestate’s estate, and of the administration ? This has not been done.
    As to the right ol Bacon, the surviving partner of G. Perman & Go., to have the partnership debts paid out of the joint funds, and the private debts out of the property of the parties, it can have no application. His rights depend on his interests ; and his interests are directly against this bill His interests, undoubtedly, would be to let G. Perman’s estate pay off the debts of the firm, in exoneration of the joint assets — besides, we cannot talk about his rights — » he is no party. It is true, the representative of G. Perman, whose estate would be benefited by the application of the partnership assets, in payment of the debt, is a party ; but then she has not brought iu the surviving partner — without which no decree can be made, binding on him, in exoneration of her intestate’s estate. This she was bound to do. Tuuno cannot be denied the benefit of his contract, as with Perman, individually, but on condition that Perman’s representative will give him an available fund in lieu of Perman’s.' As respects the claim set up by the assignees, Per* man and Bacon, to the fund divested by Grayson, it has no bearing. They have no title to that fund, unless they can add to the assignment executed to them, a transfer from the administratrix, vesting the fund in the assignees. This link is lacking in their chain of title. I will refer it to the commissioner to take and state an account of the assets, administration, and debts, of George Perman’s estate, for the purpose of ascertaining, whether the administratrix is in advance of the assets, so as to need any thing to be refunded by Tunno’s executors, for her indemnity ; or in other words, whether Tunno has received ai'y amount, which in due course of administration, he would not have, received ; and what amount in the report, coming in a further order, will be made, according to the circumstances which it may present.
    A reference is ordered accordingly, the matter of costs reserved.
    J. JOHNSTON.
    
      Grounds of Appeal.
    
    1. That his honor having decided the bond of Tunno, to be a partnership bond, it could not come in as a several bond, to be paid out of George Perman’s sepárale estate, until the separate debts of said estate were first paid ; according to the settled rule, that sepa-rale debts must first be paid out of the separate estate, and partnership debts out of the partnership funds ; and it is not the business of complainants to see whether Perman & Co’s, estate be sufficient or not, to pay Tunno, inasmuch as that cannot affect their claim to be first paid out of the individual iuud — which they now pray may be decreed.
    2. Because Tuuno was not entitled to receive, nor Grayson to pay, the funds of George Perman’s estate, without authority from administratrix j and she is entitled to baye the fund restored to her possession, to administer according to law.
    3. Because the decree was otherwise contrary to law.
    BUiteT & SMITH, Complainants Solicitors.
    
   Chancellor J. Johnston

delivered the opinion of the court.

On the 17th of May, 1825, George Perman and Edward Bacon, then trading under the partnership style of George Perman & Co., executed a bond to Adam Tunno, for securitig a debt due by Perman, individually, 1o said Tunno. ■

The bond was not signed in the copartnership name, but by the obligor», each in his ov/n name.

It is material to remark the iorrn of the bond, as well as its con-«¡deration, and the mode of its execution. In the body of the iu-strument, the obligors say : “ We, George Perman and Edward Bacon, now trading under the firm of George Perman & Go., are held and bound to Adam Tunno, in the sum of five thousand five hundred and sixty dollars ; for payment whereof, we bind ourselves, and each and every of our heir's, executors, administrators,jointly and severally.’’

Afterwards, George Perman died, intestate, the bond remaining' unpaid ; and his widow, Isabella Perman, administered to him.

The widow and Bacon instituted a new partnership, under the!, style ot Perman and Bacon ; under which they carried on business for some time; but, at length, failed, and assigned the effects of that firm to Smith and Beiry.

At George Permau’s death he held a claim on one Saltus, of Beaufort; on which the administratrix sued ; which suit resulted in a decree in her favor ; and the money was paid into the hands of Mr. Grayson, the officer of the court, where the decree was obtained.

Out of the money thus recovered by the administratrix of Georgé Perman, from Saltus, Mr. Giayson paid over a certain sum to Tunno ; who applied it to the bond of the 17th of May, 1825j which he held on George Perman and Edward Bacon — Tunno-then died.

Under these circumstances, this suit was instituted ; which is a bill filed by the administratrix of George Perman, joining the as. signees of Perman and Bacon, against Mr. Grayson and the exe. cutors of Tunno; Bacon is no party.

The bill alleges, that the firm of Perman and Bacon, under the. hope and expectation of being reimbursed from demands owing to the estate of George Perman, and looking especially to the claim against Saltus, loaned large sums ro the administratrix of Perman, to enable her to pay the debts of her intestate ; and that she has paid several debts oí a higher rank than specialities.

The plaintiffs further allege, that although the administratrix; consented that Tunno should draw the money from Grayson that consent was induced by Yunno’s representing to her that the bond which he held, was was one which bound her intestate individually; But that coming to more correct information, that it was a bond on the firm of George Perman & Co., she declined giving Tunno an order on Grayson, for the money. That, nevertheless, Tunno ■ivem on to require, and Grayson to pay, it.

The object of the bill w>as to compel Tunno to refund what hd had thns received out of the private estate of Geergc Forman, to be applied to the private debts of said Perman, (and among they rest, to the claim of Perman and Bacon, — and through them to their assignees, for advances;) and to throw Tunno upon the partnership assets of George Perman & Co., for. payment of his: bond.

At the hearing,-on the circuit, (May term, 1834,) the judgment of the court was, that although the bond, held by Tunno, might be' binding on the firm of George Perman & Co., it was, also, by its express terms, binding on the obligors who signed it, severally,- as Well as jointly. That, therefore, it constituted a good demand against, and was well payable out of,.the private estate of George Perman. ThatTunno had a right to retain what he had received as against the administratrix, and her creditors, (in which light, and not as creditor of her intestate, it regarded Perman and Bacon,-and their assignees;) unless in due course of administration, the assets would not have reached him; in which case, it was, by consent, adjudged that he should refund so much, as by due administration,-, he should not have received. And it was referred to the commis. sioner to take and state an account of the assets, debts, and administration of George Perman’s estate, for the purpose of ascertaining wlietherTunno had received an undue proportion of the-assets, or, in other words, whether the administratrix, by excessive advances, was a creditor of the estate. The court reserved the power of making a further order, suitable to the circumstances, until the coming in of the report.

From this decree the plaintiffs appeal..

The court is of opinion that the appeal is not' well founded.-

Nothing can be plainer, than that the bond, whether binding oir the- firm of George Perman & Co. or not, is, by its very terms, binding.on the obligors, severally. If so, it presents a fair claim against the assets of George Perman. In this view, what more can the administratrix, or her creditors, ask, than that Tunno should refund so much, as, in due course of administration, lie-should not have received ? Yet this is the purport of the decree of which they complain.

If the bond is binding, not only on the obligors, individually, but also on the firm of which they were members-, where is the necessity for depriving Tunno of payment from Perman’s estate,, and compelling him to resort to the partnership assets 7 If the; consideration of the bond was received by the firm, and not by Per man alone, so as to give his estate an equitable right to call on ¡the partnership assets to indemnify it for paying a debt which the partnership ought, in conscience, to have-.discharged ; what hinders the administratrix to go against the firm for indemnity 1 She requires Tunno to do for her what she has equal power to do for herself.

J. H. Smith, for motion.

Petigev, contra.

Filed 14th March, 1837.

if, on the other hand,'the consideration of the bond went to the benefit of Perman, individually, as 'appears to have been the fact, then to require the firm to pay, in the first instance, would amount to nothing more nor less, than requiring a- surety to pay the debt of his principal. Would not the firm have a right to claim reimbursement, out of the assets of Perman 1 - And what difference would there be, to the estate of Perman, between allowing the creditor to be paid directly out of his estate, or allowing him to be paid by the firm, and then allowing the firm to be repaid out of that estate ?

The motion is dismissed.

Of course, this decree extends no further, than to sustain the de. cisión appealed from. The circuit court is open for the orders proper to be made upon the commissioner’s report.

J. JOHNSTON.

We concur,

WH. HARPER,

H. W. DESAUSSURE.  