matter what the state of account is between Robins and the defendants, *because even if there had not been a shilling due from the defendants to Robins, still if Hartland had gone to the Bank and said, "There is 9791. due, and that I want you to lend me and my partner, in order that we may pay Robins," it is clear that the partnership would have been bound. Therefore it seems to me of no moment whether there was a debt due from the defendants to Robins, supposing that the Midland Banking Company acted bonâ fide in their dealings with Hartland. That remark, however, is to be qualified in this way. I say, if Hartland had specifically agreed to the sum of 9791., in my opinion the defendant Caddick would have been bound, although that was not the true balance due; but the more rational way of looking at the transaction is to say, not that Hartland bound himself to that particular amount, but only to the true balance, which was supposed to be 9791.; in other words the balance, whatever it was. In that case I think it was perfectly competent to the defendants to say, "It may be that you, the Banking Company, have credited Robins 9791.-it may be that Robins has credited us with 9791., but we did not owe the money to him, and you ought not therefore to have credited him with the amount; and the result is, that you must alter the amount of the credit so given to him, and charged against us." That is the reasonable way of looking at it, and all the difficulty arises from its being supposed that the learned Judge said, that the 9791. was a binding item. I do not think he did. It is clear that he said the contrary (as my brother MARTIN observed), because he allowed the defendants an item out of it. Upon that ground, therefore, it seems to me it may not be important to look at the particular words he used. If I am right on this point the question of appropriation does not arise, because if the defendants owe to the Banking Company the true balance which they owed to Robins before, the balance added to the other items of the account overtops the cross-payments. However, it seems clear that Hartland must be taken to have agreed that the first payment he made into the account should go in discharge of the first item. On these grounds I think that the learned Judge was clearly right, and that the rule must, therefore, be discharged. WATSON, B.: I am of the same opinion. The facts appeared to be a little complicated at first, but when they were clearly brought before us by Mr. Whateley and Mr. Gray, there was no doubt on the subject. The objection to the direction of the learned Judge was, that he told the jury that it was immaterial whether Caddick had assented to the transfer of the account, as Hartland had the power to bind him. Now, I take it to be perfectly clear that one partner has the power of employing a banker; and when that banker ceases to carry on business, as here Robins ceased to carry on business, he has the power to employ another banker, as in this case Hartland employed the Midland Banking Company, and transferred the account to them. Then, the objection is this, that Hartland still had no power to bind his co-partner Caddick to the identical sum of 9791. But that is not what the learned Judge told the jury. He put it to them in this way: that the account was transferred by Hartland, and that it was equally open to Caddick to contest the amount of the balance in an action by the present plaintiff, as it would have been in an action by Robins. It is perfectly clear, that the learned Judge stated that the promise made by Hartland was not to pay 9791., but the balance, whatever that might be, and that is within the principle that one partner has the power to bind another in everything connected with the partnership transactions. Whether or not he *could have bound him conclusively by assenting to the 9791. as an ascertained balance, is a point upon which I do not wish to express any opinion whatever. On the other hand Lacy v. M'Neile (1) is a conclusive authority that he had a right to bind him by transferring what might be found to be the balance. Then as to the appropriation, there is abundant evidence of appropriation, because the 9791. is carried as the first item to the new account. A great deal was said about the power of the Banking Company to repudiate this and other accounts if they did not prove advantageous. But when the matter is looked into it is perfectly clear that the transaction between Robins and the Banking Company was, that the latter was to take Robins' business and all the accounts, and to have the option to continue or repudiate any account at the end of twelve months, and then at the end of ten years Robins was to guarantee them against any loss on an account so repudiated. The account became an account between the Midland Banking Company and the defendants, and although as between the Banking Company and Robins the Banking Company repudiated the account, it still continued a debt due from the defendants to the Banking Company. It was an account standing in the books of the Midland Banking Company in the names of Hartland and Caddick, and then at the end of ten years, (1) 4 Dowl. & Ry. 7. BEALE v. CADDICK. L 338] BEALE ፖ. CADDICK. 1857. May 30, [ 339 ] [*340] For if the Midland Banking Company did repudiate the account, THE ATTORNEY-GENERAL v. JOHN HIGGINS AND OTHERS (1). (2 H. & N. 339–354; S. C. 26 L. J. Ex. 403; 29 L. T. 184.) A testator, domiciled in England, having died in the province of York, his property within that province was sworn under 100,0007., and the will having been proved, probate duty was paid on that amount. The testator's personal property actually in that province amounted to 93,2217., in addition to which he was possessed of shares in Railway Companies in Scotland, (such Companies being constituted under the Companies Clauses Consolidation (Scotland) Act, 1845, to the value of 5,715l. In pursuance of the 19th and 20th sections of that Act the executors produced the probate with the proper declaration to the secretaries of the several Railway Companies, and caused their own names to be inserted in the register of shareholders at the chief offices of the said Companies in Scotland; but, although more than six months had elapsed, did not exhibit an inventory properly stamped in the Commissary Court in Scotland, as required by the Probate and Legacy Duties Act, 1808 (48 Geo. III. c. 149), s. 38. In an information for penalties for not exhibiting an inventory: Held, that the duty imposed on executors by the Probate and Legacy Duties Act, 1808, s. 38, to exhibit in the Court of Scotland an inventory properly stamped, is not affected by the Companies Clauses Consolidation, Scotland, Act, 1845 (8 & 9 Vict. c. 17), s. 20, and that therefore the duty on the inventory was payable in Scotland in respect of the shares. THIS was an information against the defendants who were executors of William Higgins, deceased, for not exhibiting an inventory duly stamped, of certain shares in Railway Companies in Scotland, pursuant to the 48 Geo. III. c. 149, s. 38. Plea: The general issue. A special verdict was found by consent, which stated that William Higgins, before and at the time of making his will, and thence until his death, resided and inhabited, and was domiciled at Broughton, within the province of York, and after the 31st of August, 1805, on the 1st day of January, 1850, within the province aforesaid, duly made his will signed by him &c. and attested &c. according to the form of the statute, and thereby appointed the said John Higgins and others executors, and gave to his executors all his personal estate and effects in the United Kingdom of Great Britain and Ireland: and that William Higgins afterwards, and after the passing of "The Companies Clauses Consolidation (Scotland) Act, 1845," on the 7th of December, 1853, within the province aforesaid, died without having in anywise altered or revoked his will: and that the will of William Higgins was a good and valid *will and disposition, according to the laws and customs of Scotland, of all the said testator's personal and moveable estate (1) Cited, In the Goods of Ewing (1881) 6 P. D. 19, 50 L. J. P. 11; Att.-Gen. v. Lord Sudeley [1896] 1 Q. B. 354, 64 L. J. Q. B. 753; Att.-Gen. v. New York and effects at the time of his death in that part of the United Kingdom: that John Higgins and others as executors, after the death of William Higgins, on the 12th of January, 1854, duly proved the will in the Prerogative Court of the province of York, and probate was then granted to John Higgins and others; and the said John Higgins and others thereupon then took upon themselves the burthen of the execution of the will as executors, and afterwards, and within six calendar months after obtaining probate, that is to say on the 1st of March, 1854, produced the probate to the several and respective secretaries of certain Railway Companies in Scotland, all which several Companies had been incorporated by Acts of Parliament, with which "The Companies Clauses Consolidation (Scotland) Act, 1845," was incorporated, and which were respectively called the Edinburgh and Glasgow Railway Company, &c., in all which said several Companies the said William Higgins, deceased, before and at the time of his death, was entitled to and was the owner of certain shares of and in the respective capitals thereof: and at the same time produced to and left with the said several and respective secretaries a declaration in writing duly made in conformity with and in pursuance of the provisions of "The Companies Clauses Consolidation (Scotland) Act, 1845," and thereupon then, as executors, caused the said shares to be duly transferred and transmitted in the manner required by "The Companies Clauses Consolidation (Scotland) Act, 1845," in the registers of shareholders of the said several Railway Companies respectively, at the several chief offices of the said several Companies, situate and being respectively in Scotland, from the name of the said testator William Higgins into the names of them the *said John Higgins and others, and thereby and not otherwise entered upon the possession and management of the said shares, the same being the only personal and moveable estate and effects in Scotland of the said testator. And that the period of six calendar months from the time of such transfer and transmission being made, and from the time of the said John Higgins and others assuming the possession and management of the said shares as such executors as aforesaid elapsed before the day of exhibiting the said information; and that the certificates of the proprietorship of the said shares, duly issued in pursuance of the said Acts of Parliament whereby the said Railway Companies had been incorporated, before and at the time of the death of William Higgins were within the province of York; and each of them, the said John Higgins and others, had during all the time aforesaid notice of the premises, but have not nor has either of them exhibited in Scotland a A.-G. v. HIGGINS [ *342 ] full and true inventory duly stamped, or any inventory of the said shares, but have, and each of them has, neglected and refused so to do. And that the said shares at the time of the death of William Higgins, and from thence continually until the transfer thereof as aforesaid, and during and until the expiration of six calendar months &c., were in the whole of a value exceeding 5,000l. and under the value of 6,000l., that is to say, of the value of 5,715l. 2s. 6d., and that the stamp duty which would have been payable upon and in respect of the inventory of the said shares in Scotland, if such inventory ought by law to have been and had been exhibited by the said John Higgins and others as such executors, was and is the sum of 100l. That the said William Higgins at the time of his death was possessed of goods and chattels within each of the provinces of Canterbury and York in England; and that the said John Higgins and others after the death of *the said William Higgins, and after the obtaining of probate as aforesaid, and before the expiration of six calendar months from the time of their assuming the possession and management of the said shares, took upon themselves the execution of the said will, and after probate had been so aforesaid granted by the Prerogative Court of York, probate of the said will was on the 27th of January, 1854, duly granted to them as such executors as aforesaid by the Prerogative Court of Canterbury, for and in respect of the goods and chattels of the testator being within the said last-mentioned province. And that the goods and chattels of the testator in the province of Canterbury, and in respect whereof probate was so granted by the said Prerogative Court of Canterbury as aforesaid, were at the time of his death, and from thence until and at the time of the granting of the probate thereof as aforesaid of a value exceeding 35,000l., and under the value of 40,000l., that is to say of the value of 39,790l. 1s. 11d.; and that the stamp duty payable in respect thereof, that is to say the sum of 525l., was duly paid to her Majesty by the said John Higgins and others, as executors. And that the goods and chattels of the said testator in the province of York, and in respect whereof probate was so granted as aforesaid by the said Prerogative Court of York, were at the time of the death of the said testator and from thence until and at the time of the granting of the probate thereof as aforesaid, of a value exceeding 90,000l., and under the value of 100,000l., that is to say of the value of 93,2211. 3s. 5d.: And that the stamp duty payable in respect thereof, that is to say 1,350l. was duly paid to her Majesty by the said John Higgins and others, as executors. And the jurors |