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![handle is hein.slavery/ssactsengr0570 and id is 1 raw text is: 2 STARK. 179. HIGGS V. DIXON 613
This was an action against Deakin, Bickley, and Hickman, as the drawers of a bill
of exchange.
At the time when the bill in question was drawn, the three defendants were co-
partners. Afterwards, in February, 1814, the partnership was dissolved, and in the
month of November, in the same year, Hickman became bankrupt.
Bickley, wishing an arrangement to be made, as to the securities which the
plaintiff held from the three defendants, proposed to give his own notes as a security,
payable at the respective periods of [179] four, eight, and twelve months. The
plaintiff agreed to accept of these securities, reserving to himself the security which
lie held from the three defendants, and the notes were accordingly drawn by Bickley,
and a surety of the name of Rushbury, for the original sum, and interest calculated
up to the times of payment. The plaintiff still retained in his possession the original
bill. The notes were unproductive.
Topping, for the defendant Deakin, contended, that this negociation between the
plaintiff and Bickley, after the dissolution of partnership, and after the bankruptcy
of one of the partners, and the agreement of the plaintiff to take the separate security
of Bickley, operated to discharge the three from their original liability; and he cited
the cases of Evans v. Drummond (4 Esp. 89) and Reed v. White (5 Esp. 122). That
the transaction amounted to an agreement, without the knowledge of Deakin, to
postpone the time of payment, since interest was calculated on the original debt, up
to the time when Bickley's notes would become due.
Lord Ellenborough.-I do not see that the plaintiff's taking the notes as a col-
lateral security, alters the original liability of the defendants. In the case of Evans
v. Drutmpiond, the separate note of the partner was taken as a substitute, and in
exchange for the security, which had been given [180] by the partners ; but here the
notes were taken as a mere collateral security. If there had been any agreement
here to postpone the payment of the original debt without the consent of Deakin, I
should have assented to the objection, but there was no such agreement. The only
question is, whether there was any dealing which could prejudice the other partners.
If the plaintiff had agreed to postpone his remedy against the other partners, I should
have acceded to the objection ; it would have been an immediate consequence of such
an agreement; but the plaintiff took the notes on the express condition, that they
should not affect the security which he already held, and he might have proceeded
instantly to enforce that security. I accede to the cases which have been cited, but
this differs from them in this material circumstance, that the original security was -
never delivered up.
Verdict for the plaintiff.
Jervis and Campbell for the plaintiff.
Topping and Gaselee for the defendant.
HIGGS v. DIXON.
(When a warrant to distrain has been signed by an attesting witness, that
witness must be called to prove it.)
This was an action of trespass.
On producing a warrant to distrain, which was in the hand-writing of the def end-
ant, it ap-[181]-peared that it had been signed by an attesting witness.
On its being objected, that it ought to be proved by calling the attesting witness-
Scarlctt contended, that the case was not like that of a bond or bill of exchange,
where it is necessary to prove the instrument by means of the attesting witness
but-
Lord Ellenborough was of opinion, that there was no ground for departing from
the ordinary rule.
OLIVE V. EAMES.
(A promise made by the book-keeper of a carrier at the office to make compensation
for the loss of a parcel is not binding upon the carrier, unless the.book-keeper be
shewn to be his general agent.)
This was an action against the defendant a carrier for the loss of a parcel.
Soon after the loss had happened, a friend of the plaintiff's went to the office where
the parcel had been delivered, to make enquiry after it, and saw there the book-
keeper to whom the parcel had been delivered.](ViewImageLocal?handle=hein.slavery/ssactsengr0570&div=1&collection=&method=preview&ext=.png&size=3)