The opinion of the Court was delivered by
Rogers, J.Under the facts the court were correct in charging the jury, that Elliott was the agent of John and Charles Wilkins; that he received the bill not in the course of any mercantile transaction with the firm of which he was a member, but as the agent of the firm of John and Charles Wilkins, who undertook the collection of the bill. The letter of Elliott, transmitting the bill, is signed by him as the agent of the firm. In addition we have the oath of Elliott, in which he states that he was the agent of John and Charles Wilkins, and as such transmitted the bill to the Messrs G-ratz for collection, together with the fact that it was collected by suit in their name. As the facts are presented on the record, what is this but the collection of money by the firm and a receipt of it by one of the partners 1 The credit which the Messrs G-ratz gave in their account current with John Wilkins, Jun., is equivalent to a payment in cash. If John Wilkins had received the proceeds, he of course would have been affected with a knowledge of the whole transaction. Are we to suppose that he would not have inquired into the source from which the money came ? If he had, the letter of Elliott, transmitting the draft, could have left no doubt on his mind that it was not intended as a payment or remittance by the house of which Elliott was a partner, but that it was a transaction in which the firm of John and Charles Wilkins were concerned, as the instrument of collection through their agent Elliott. I cannot then see the error in the court in charging the jury that John Wilkins must be supposed to be cognisant of the true nature of the case. If he had inquired, as it was his duty, he could not have been, under any mistake as to the nature of the payment.
But in what capacity was the money received except by Wilkins as a member of the firm 1 We can see no difference whether the draft was transmitted by the agent or by one of the partners. It is still the act of the firm. If it had been transmitted by Charles Wilkins for the firm, with a similar direction as to payment, can it be doubted that the firm would have been liable to the holder of the bill; that an action of assumpsit would lie, by the legal owner, to re*45cover the amount received by-one of the firm! It-would be a partnership transaction, which would of course subject the firm to this action. But here we are met with the difficulty, that the suit is brought, not against the firm of John and Charles Wilkins, but against John Wilkins. If the defendant had put in a plea in abatement, there would have been some difficulty in answering the -objection. But there is no principle of law better settled, than that an objection, such as this, must be taken advantage of by plea in abatement.
One other error remains to be considered. The court were requested t.o charge the jury, that the suit is incorrectly brought in the name of Richard Boyce, there being no legal evidence that he had at any time any interest in the bill of exchange referred to in the depositions of H. and S. Gratz and D. D. Elliott.
To this the court answer, “ I conceive the matter by no means clear. If Richard Boyce became the owner of this claim, after it was transmitted to Elliott for collection, I am under the impression that the suit should have been brought in the name of James Boyce.” If, says the court, Richard Boyce’s interest, was acquired after the bill was sent to John and Charles Wilkins for collection, the suit should have been brought in the name of James.. The answer of the court amounts to a positive direction in favour of the defendant, of which he certainly has no right to complain. It would strike me that if Richard acquired his interest at any lime before the collection of the bill, it would be money received to his use, which he might recover in his own name. The court refers the fact to the jury, of which the defendant contends there was no legal evidence. But this, I apprehend, is a mistake of the evidence of Elliott. He says, “James or Richard Boyce, I think James, showed me a bill drawn by Cranston on John Jordan, Jun. of Lexington, Kentucky, in favour of Boyce for 400 dollars, but not certain of the amount, and some time after, James or Richard Boyce, I think Richard, transmitted said bill from Kentucky to the house aforesaid [John and Charles Wilkins], or to me as the agent of said house, for collection.” It is true, in another part of his deposition, he says, “ I believe the bill was-- in favour of James Boyce-and that at the time -it to me, it was his property, and that he afterwards transferred it to Richard Boyce.” There was then some evidence of the fact that Richard was the owner of the bill. If the jury found against evidence, the remedy was a motion for a new trial, and not a writ of error.
Judgment affirmed.