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![handle is hein.slavery/ssactsengr0169 and id is 1 raw text is: 2 H. BL. 618.
HOWARD V. BAILLIE
737
Upon a reference to the officers, they all agreed that the practice was to plead on
the Purification, the offices being always open on that day.
LORD CH. J. The meaning of a Defendant being allowed a certain time to plead
in is, that he may have a reasonable time to consider of his defence. It is absurd
therefore now to refer to the old mode, when the proceedings were ore tenus. The
reason of Sunday not being a day of business, is the decent observance of the Sabbath,
but as the offices are open on these other dies non juridici, the party may certainly
then plead.
Rule discharged.
[618] HOWARD AND ANOTHER against BAILLIE, Executrix of Baillie.
Friday, Feb. 12th, 1796.
Semble that a letter of attorney given by an executor to A. enabling him to transact
the affairs of the testator in the name of the executor as executor, and to pay,
discharge and satisfy all debts due from the testator, conveys a sufficient authority
to A. to accept a bill of exchange, in the name of the executor, drawn by a creditor
for the amount of a debt due from the testator, so as to make the executor person-
ally liable. But clearly if the executor admits that such a bill, which has been so
accepted by A. with the knowledge of the executor, is for a just debt, and that it
ought to be paid, it affords sufficient evidence of an authority given by him to A.
to accept that particular bill, without resorting to the letter of attorney (a).
The facts of this case, and such of the arguments as were material, are stated in
the following judgment, which was thus delivered in the name of the Court by the
Lord Chief Justice.
A new trial has been moved for in this cause, in which the Plaintiffs, being the
drawers of a bill of exchange upon the Defendant dated 10 January 1794, for
2901. 18s. 3d. value in account with James Baillie (whose executrix the Defendant is),
payable upon the 1st of September 1795, to their own order, and which bill of
exchange was accepted by the Defendant by Edmund Thornton her procurator, having
recovered a verdict for 3301. damages. The ground made for this application is, that
upon the case in evidence Mr. Thornton was not the procurator of the Defendant duly
authorized to accept this bill for her. The case was shortly this, Mrs. Colin Baillie
being the sole acting executrix of James Baillie, who died possessed of a large West
India and other property, and largely indebted to many persons, and among others
to the Plaintiffs in the sum of 2901. 18s. 3d., executed a power of attorney to George
Baillie and Edmund Thornton jointly and severally to act for her in collecting and
getting in the estate of the deceased, and paying his debts. These two persons acted
under the power. The business respecting the estate was transacted by one or other
of them at the counting house where James Baillie's business was carried on in his
life-time, and where the business of a new firm, at the head of which was George
Baillie, was also carried on after the death of James Baillie. At this counting house
the bill in question was accepted, in the name of the Defendant, by Edmund Thornton,
one of the attornies, as her procurator, in payment of a debt due from the estate of
James Baillie; and this was a mode adopted by the attornies [whether with or without
the privity of Mrs. Baillie at present I do not stay to inquire], for the payment of the
tradesmen's bills due from the estate. For the Defendant it is insisted, that the
attornies had no authority to provide for the payment of the testator's debts in this
manner, that they were to administer the assets for the executrix, but that they could
do no act whereby she should become chargeable with the debts in her own right, and
particu-619]-larly that they were riot authorized to give a security for the payment
of any debts in her name. This makes it necessary to look into the power of attorney,
to view and to consider the general scope of it, and to examine the different parts of
(a) [See Gardner v. Baillie, 6 T. R. 591, in which, upon an action being brought
upon another bill accepted by A. in the name of the executor, the Court held, that
the Plaintiff was not entitled to recover, and stated that the judges of this court
concurred in that resolution. It seems therefore that the present case must be
considered as having been determined on the admission of the executor. See also,
Hay v. Goldsmidt, cited 1 Taunt. 349.]
C. P. iv.-24](ViewImageLocal?handle=hein.slavery/ssactsengr0169&div=1&collection=&method=preview&ext=.png&size=3)