Upon the evidence, the case is clear. 1st. The receipt of September 15th, 1863, contains the contract. By the terms of that, the defendant Lawrence agreed to hold the bonds as security for liabilities of his co-sureties and himself on undertakings given on behalf of Ward & Gove, upon appeals by them to the Court of Appeals, in certain actions between them and Charles Kelsey. It appears that Kelsey prevailed in these appeals, and that the judgments recovered were duly satisfied by him. The satisfaction of these judgments discharged the defendant and his co-sureties on the undertaking, and entitled Ward & Gove to a return of the bonds. It may be that, if any fraud or mistake occurred in procuring the satisfaction of the judgments, and Lawrence was privy to it, he would be permitted to avail himself of the facts, as giving him the right to retain the securities. But there is no proof of such mistake or fraud, nor has Kelsey asserted the existence of either of those facts, or sought in any way to invalidate the satisfaction pieces of the judgments. We are of opinion that the evidence on this subject constitutes no defence to the action.
2d. The only other defence is, that Ward agreed that Lawrence might apply the securities in payment of a debt due Mm by Ward individually. There being no evidence of the assent of the plaintiff to this agreement, or of any act *92of ratification on his part, this agreement was not binding upon him, and the finding of the referee upon the facts, as applied to this case, was correct. An agreement by one member of a copartnership with a trustee of the firm, to divert securities belonging to the firm, in the hands of the latter, to the individual use of the former, is not valid.
The judgment must be affirmed, with costs.
Judgment affirmed.