existence of a contract similar to the one relied upon in this case, and their silence during the time that it was being carried into effect, are acts from which their assent might be implied. But in this case there is no testimony of any assent by the other partner, either express or implied; and consequently the firm was not bound by the agreement.

Wherefore, the judgment is reversed and cause remanded for a new trial, and further proceedings consistent with this opinion.

PARTNER CAN Not Set off DebT DUE FIRM in an action against him for an individual debt, as a general rule: Craig v. Henderson, 44 Am. Dec. 193, and note 194, where other cases are collected. But if the demands are really mutual, they may in equity be set off though they are not nominally mutual: Foot v. Ketchum, 40 Id. 678.

POWER OF COPARTNER TO BIND HIS ASSOCIATES extends to such matters only as in the ordinary course of dealing have reference to the business in which the firm is engaged: Crosthwait v. Ross, 34 Am. Dec. 613.

SLEDD'S EX'R v. CAREY AND WIFE.

[11 B. MONROE, 181.]

BEQUEST OF MONEY TO BUY SLAVE is not a bequest of a slave, and may be made by a nuncupative will.

LEGATEE MAY ELECT TO TAKE EITHER the money or the slave, where the testator directs money to be laid out in the purchase of a slave for him. ELECTION UNDER WILL MAY BE MADE by application to a court of equity or by other acts or declarations clearly indicating an intent to do so. FEME COVERT MAY ELECT UNDER WILL IN COURT OF EQUITY.

ERROR to the Calloway circuit. The opinion states the facts. T. N. Lindsey, for the plaintiff.

Harlan and R. K. Williams, for the defendants.

By Court, SIMPSON, J. Sleaton Sledd made a nuncupative will containing the following bequest: "I wish all my perishable property to be sold, except the household and kitchen furniture, and after paying my just debts, I wish a part of the money to be applied in buying a negro girl to be given to Miranda Shoemaker." The testator's personal estate which he directed to be sold, was sufficient to pay his debts, and to satisfy the legacy bequeathed.

Miranda Shoemaker having intermarried with John Carey, this suit in chancery was brought by them to obtain the benefit of the bequest; and in their original bill they elected to take the money instead of the slave.

As slaves, so far as it respects last wills and testaments, are deemed real estate, and pass by them in the same manner and under the same regulations as landed property; and as neither land nor slaves can pass by nuncupative wills, it is contended that the foregoing devise is void, upon the ground that the testator having directed the money to be applied to the purchase of a slave, it must, according to the doctrine of equitable conversion, be regarded as a devise of a slave, and not a bequest of money.

When a will directs the conversion of money into a slave, there is no doubt that the property takes the character which the will has impressed upon it, and in its subsequent disposition is subject to the rules applicable to that species of property. It does not, however, pass by the will in that character, but assumes it in consequence of the direction given in the instrument for its conversion. Being personal estate, it passes by the will as personal estate, and only acquires the character impressed upon it by the will, in its subsequent devolutions.

The testator did not in this case devise a slave-he bequeathed personal estate. The nuncupative will was effective for that purpose, and the bequest is legal and valid. Whether he could by such an instrument impress upon the legacy the character he directed it to take is immaterial, as the person entitled elected to take it in its actual state, and the money and not the slave was decreed to the complainants.

If money be devised to be laid out in the purchase of property, the person for whose benefit the purchase is to be made may come into a court of equity, and have a decree for the money, because being the owner, he may prevent a conversion, and take the thing devised in its present state, if he elect so to do. And this election he may make by an application to a court of equity, as well as by other acts or declarations, clearly indicating a determination to that effect: 2 Story's Eq. Jur., secs. 793-1213; 1 Roper on Legacies, 473.

It is true that coverture is a disability to a woman's electing to change the nature of her property without the interposition of a court of equity. But in this case the election was made by an application to the court, and if it were necessary to have been made, to have given effect to the devise, a court of equity would always permit it to be done for that purpose. And although we do not regard it as having been necessary to sustain and give effect to the devise, yet as the right under the will accrued to the complainants previous to the act of 1846, relative

to the rights of married women, and the husband had a right to the property devised either as money or a slave, and the same control over it in either character, there was no impropriety in allowing the election to be made to take the money.

Wherefore the decree is affirmed.

WHERE FATHER, BY HIS WILL, Directs Land TO BE SOLD, and the proceeds to be paid to the son's guardian, and the interest thereon to be applied to the son's maintenance and education, the principal to be given the son at his majority, if the land is not sold by that time, the son may elect to treat the real estate unsold as land; and the fact that he thereafter devises it is proof of his determination to reconvert it. By making such election he takes as a purchaser, and not by inheritance: Burr v. Sim, 29 Am. Dec. 48; and see Tazewell v. Smith, 10 Id. 533.

ROBINSON V. COLLIER, ETC.

[11 B. MONROE, 332.]

WARDS ARE NECESSARY PARTIES TO SUIT BY JOINT MORTGAGEE, to foreclose a mortgage made to secure money due them.

MORTGAGEES TAKING POSSESSION OF MORTGAGED PROPERTY, and appropri ating it to their own use, must account ratably to the other joint mortgagees.

MORTGAGOR MAY PREFER ONE CREDITOR OVER ANOTHER, or designate the order in which mortgage debts shall be paid.

ERROR to the Bourbon circuit. The opinion states the facts. Thornton, for the plaintiff.

Hawes, for the defendant.

sons.

By Court, GRAHAM, J. Joseph J. Collier was the statutory guardian of the complainants, and as such had in his hands dollars. He was also largely indebted to other perJohn Collier was his surety in his guardian bond. On the fourth of October, 1841, said Joseph J. Collier made his mortgage to various creditors and sureties of all his estate. After setting forth the estate conveyed, and the several debts and liabilities intended to be secured, the deed provides that if said Collier "shall pay off and discharge the above-named debts and liabilities, and save the said persons from all loss or damage, the above obligation shall be void, or else remain in full force; but if the said Joseph J. Collier shall fail to pay off said debts and liabilities, the mortgage shall be in full force as follows: the said debts shall be paid off and discharged out of the proceeds of the mortgaged property, the first debts named

to be first paid, according to the above list, the whole debt when any one of the mortgagees are security, to be paid." The mortgagees stand in the following order, viz.: Elizabeth Collier, Robert Collier, John Collier, John Williams, administrator, etc., Abraham Moore, John M. Talbott, A. Shackleford, W. McKim, Lee Whaley, T. Watson, etc., and Milton Jameson. In describing the debts, those due to Elizabeth Collier are first named, then the debt to Williams, and thirdly the debt to Robinson's children (the complainants), and for which John Collier is bound as surety. On the twenty-fifth of March, 1842, said Collier made another mortgage conveying the land, and some other property contained in the first mortgage. This second deed is made to his said wards, and to McLane, Moore, Miller, and McKim, to secure to them the same debts mentioned as due on the first mortgage. It seems that some time during the year 1842 the mortgagor, and the greater portion of the mortgagees, agreed to dispense with a formal foreclosure of the mortgage, by a suit in equity, and undertook to pay off the debts, by dividing the property among themselves. To this arrangement Warfield, one of the mortgagees, refused his assent. John Collier in his answer denies that he gave his consent.

The proof is very clear that he was present at the time the distribution took place, and although there is some conflict in the evidence, we are satisfied from the whole proof that he fully assented to the arrangement, except that the proof is not sufficient as against his positive denial to establish the fact that he signed his name to the writing which was then entered into by the parties, and which has since been lost. The present complainants were not present nor consulted. They then were, and yet are, infants, and bring this suit by their next friend. Nor was Elizabeth Collier present-on the contrary, there is proof that a Mrs. Collier (whom we supposed to be said Elizabeth) was then dead. In making this distribution of the real and personal estate, no part of it, then in possession of Joseph J. Collier, was set apart to pay the debt due from him as guardian, but it was agreed by those present that it "should be paid out of some negroes which belonged to said Joseph on the death of his mother, his undivided interest in which is included in the mortgage. It is also stated in proof that the slaves alluded to did subsequently come to the possession of said Joseph, were immediately run off, and no part of them was applied to the payment of that debt. Joseph J. Collier has since left this commonwealth, and he and his surety, John Collier, are insolvent.

Such are substantially the facts of this case, so far as it is at present necessary to recite them. In this state of case, Mary, Jane, and Ann Robinson, the wards of said Joseph, have instituted this suit in chancery, in which they claim that the mortgage was made for their benefit, and ask the chancellor to subject the mortgaged estate to the satisfaction of their demand, or to compel the mortgagees who have received the property to pay it. The court below refused to do this, but gave a decree against their guardian, and dismissed their bill as to the other defendants. It may be remarked here, that neither said Elizabeth Collier or (if dead, as supposed) her representatives have been made parties by process or otherwise. If, however, the complainants are not entitled to any decree other than that obtained by them, it would not be proper to reverse the case for want of proper parties to the suit, when the same decree would be rendered, after such parties should be made. It is therefore necessary to inquire whether they occupy such a position to the mortgage as will entitle them to a satisfaction of their demand, notwithstanding the presence and assumed assent of John Collier, the nominal mortgagee, to the before-mentioned arrangement.

In the case of Bronston v. Robinson, 4 B. Mon. 143, 'this court held that where a mortgage had been made to a surety to secure the payment of a debt to his principal, the creditor, though not a nominal mortgagee, is entitled to the benefit of the mortgage, and may enforce it in equity; and can not, while he retains this right, be regarded as a general creditor or a stranger to the mortgage, for he has a lien in equity for his security; and although not the mortgagee, his debt is in truth the mortgage debt. The same principle is recognized in Moore v. Moberly, 7 Id. 301, and in Willis v. Caldwell, 10 Id. 200. The very terms of the deeds under which the several mortgagees claimed, not only notified them that the sum due to these wards of Collier was intended to be secured by the mortgage, but that it was in fact one of the debts first to be paid. The debt to Elizabeth Collier was among the largest in the mortgage, and she stands first in the list of creditors. She was not present, nor was any provision made for her, unless it can be supposed that the following words, written in the list produced by Joseph J. Collier, as showing the distribution made by the creditors, can be regarded as such provision:

"George Robinson's children, $800.

"Elizabeth Collier debt suit, $2,424.50.