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we promise to pay," and signed "San Pedro Mining and Milling Com-
pany, F. Kraus, President," is the note of the company only, and parol
evidence is not admissible to prove that the president did not sign the
name of the company, but did sign his own name as a joint maker.
Liebscher v. Kraus, 171.
8. A TOWN ORDER, although not negotiable paper to the extent that a trans-
fer to an innocent holder shuts out equitable defenses, may be negotiable
in form, and become transferable under the same rule of law that would
be applicable to negotiable paper. Furgerson v. Staples, 470.
4. INDORSER OF A FORGED OR VOID NOTE may be sued for the considera-
tion paid to him, or he may be held as a party, without demand and
notice. Id.
5. INDORSER OF A TOWN ORDER VOID, BECAUSE ISSUED WITHOUT AUTHOR-
ITY, IS ANSWERABLE to his indorsee, in an action for money had and
received, for the amount paid by the latter to the former therefor. Id.
6. NOTE GIVEN BY MAKER IN SETTLEMENT OF LOSS SUSTAINED WHILE
DEALING IN FUTURES is void in the hands of the payee, and that though
such payee pretended to be or was a mere agent in the transaction, where
he knew of and participated in its illegality. Snoddy v. Bank, 918.
7. NOTE GIVEN IN CONSIDERATION OF GAMING CONTRACT IS VOID IN HANDS
OF INNOCENT HOLDER, by indorsement for value before due, and with-
out notice of the illegality of the consideration. The statute need not
expressly declare such a note void, if it does so by necessary implication,
and a statute does by necessary implication make such note void when
it makes the contract under which it is executed void and criminal. But
the Tennessee statute goes further, and makes the transfer of such a
note to a party ignorant of its illegality a criminal offense. Id.
8. ONE WHO FRAUDULENTLY PLACES IN CIRCULATION A NEGOTIABLE IN-
STRUMENT OF ANOTHER, whether made by him or his apparent author.
ity, and thereby renders him liable to a bona fide purchaser, is guilty of
a tort, and, in the absence of special circumstances diminishing its value,
is presumptively liable to the injured party for the face value of such
instrument. Metropolitan E. R'y Co. v. Kneeland, 619. ́
9. BURDEN OF PROOF OF BONA FIDE TRANSFER OF NEGOTIABLE NOTE ON
HOLDER WHEN. Where it is clear that a note had its origin in fraud,
and the answer alleges a purchase in good faith, the burden is on the
defendant who claims to own the note to show a bona fide transfer
thereof before maturity, and this burden is not sustained by evidence
from which the date of the transfer does not appear except by inference.
Henry v. Sneed, 580.
10. CONSIDERATION FOR INDORSEMENT.
- Negotiable instrument transferred
before due, as collateral security for a pre-existing debt, with no new
consideration between the parties to such transfer, is subject to any de-
fense that might have been made as between the original parties. Smith
v. Bibber, 464.
11. FORBEARANCE TO SUE, WHEN A SUFFICIENT CONSIDERATION. Actual
forbearance to sue for the collection of an existing debt is not a sufficient'
consideration to support a transfer of a negotiable instrument to secure
the original debt, so as to cut out a defense existing against such paper
as between the original parties thereto, unless there was a valid promise
to forbear for some specific time, so that for such time the right of action
was suspended. Id.
12. NOTE PAYABLE ON DEMAND, WITH INTEREST, is not a continuing security on which an indorser remains liable until actual demand; but to charge the indorser, payment must be demanded of the maker within a reasonable time, and notice of such demand and of non-payment given to the indorser. Turner v. Iron Chief Mining Co., 168.
13. Demand Note — Unreasonable Delay in Presenting for PAYMENT.— A delay of ten months after the indorsement of a note payable on demand, with interest, to present the note for payment, is such unreasonable delay that it, as a matter of law, releases the indorser. Id. See AGENCY, 2; BANKS AND BANKING, 7-26; CORPORATIONS, 34-36; HUSBAND AND WIFE, 5.
NEW TRIAL.
See CRIMINAL Law, 15.
NON ASSUMPSIT.
See TRIAL, 5.
NONSUIT.
See NEGLIGENCE, 1.
NOTARY PUBLIC.
See ACKNOWLEDGMENTS.
See NEGOTIABLE INSTRUMENTS.
See AGENCY, 2; AUCTION AND AUCTIONEERS; CHATTEL Mortgages; Deeds, 7-9; PAYMENT, 9; PROCESS; Sales, 13, 14; Statutes, 1.
OFFICE AND OFFICERS.
See EQUITY, 1; MUNICIPAL Corporations, 4, 5.
ADOPTION CONSTITUTIONAL LAW.-The legis lature has full and exclusive power in matters of adoption, and may invest any person, officer, or court with the power of receiving, witnessing, and declaring the adoption, as well as prescribe what the ceremony shall be and before whom it is to be celebrated. When the power of adoption is vested in a county judge, his act in the matter is one of judgment, and in that sense judicial, but is no part of the judicial power 'mentioned in the constitution, and by it vested in the courts. Estate of Stevens, 252.
See DAMAGES, 1, 2; Deeds, 4; NEGLIGENCE, 3-6; SERVICES; WILLS, 21.
PAROL LEASE.
See LANDLORD and Tenant, 5-10.
Bee CONTRACTS, 3, 4, 12; EVIDENCE, 1; MASTER and Servant, 25; NEGOTI
ABLE INSTRUMENTS, 2; WILLS, 2, 10.
See CREDITORS' BILLS, 4; EMINENT Domain, 4; Equity, 2; JudGMENTS AND
PETITION FOR PARTITION NOT MULTIFARIOUS WHEN.- Where children of
grantee take as tenants in common, a petition for partition is not multi-
farious because it joins all those living and the heir of one deceased as
parties defendant, though some of the tenants have purchased the inter-
ests of others. Such purchase does not confer upon the purchasers any
exclusive right to any portion of the land. And where in such suit a
general right to the whole land is being litigated, and this is the basis of
the litigation, it matters not that the parties litigant rely upon distinct
and independent rights. Waddell v. Waddell, 575.
1. MEMBERS OF Partnership ARE DISTINCT BEINGS from the firm, as well
as from each other, and their rights and liabilities are to be tested and
adjudicated accordingly. Hence a bank has no lien or claim on the de-
posit of a partner, made on his separate account, in order to set off the
same against a debt owing them from the firm. Raymond v. Palmer,
398.
2. LIABILITY OF INDIVIDUAL MEMBER FOR FIRM TORTS. Each partner is
the agent of the firm while engaged in the prosecution of the partnership
business, and the firm is liable for the torts of each, if committed within
the scope of his agency. Hess v. Lowrey, 355.
3. INDIVIDUAL CREDITORS OF A MEMBER OF A PARTNERSHIP ARE NOT EN-
TILED TO PRECEDENCE OVER PARTNERSHIP CREDITORS, after the latter
have exhausted their remedy against the partnership assets. The prop-
erty of one who has been a member of the partnership is liable for his
partnership debts to the same extent as for his individual debts, except
that the holder of the partnership debts may be required to exhaust his
remedy against the firm before resorting to the property of its individ-
ual members. Blair v. Black, 30.
4. PARTNERSHIP ASSETS, INDIVIDUAL CREDITOR, WHEN ESTOPPED FROM
DENYING. When two persons have held themselves out as partners, and
purchased goods as such, a creditor who has held a judgment note against
one of them for a long time, and who knew they were holding them-
selves out as partners, and buying goods as such, and who never gave
notice to any of their creditors that they were his debtors, is estopped
from claiming that they were not partners, and that the judgment en-
tered on his note is entitled to precedence over a judgment subsequently
levied for a partnership debt, created while the defendants in that judg
ment were holding themselves out as partners, and obtaining credit as
such. Powers v. Large, 195.
See ABATEMENT, 2; ASSIGNMENT FOR BENEFIT OF CREDITORS; EXECUTIONS,
3; HOMESTEAD, 4, 5; PLEADING, 3.
1. WHO MAY RECEIVE. - Mortgagor making payment on a mortgage to one
other than the mortgagee does so at his peril, and must assume the bur
den of proving that it was made to one clothed with authority to receive
it. Payment of a mortgage to one having apparent authority to receive
it will be treated as if actual authority existed. Crane v. Gruenewald,
643.
2. PAYMENT TO ATTORNEY. — Authority on the part of an attorney to receive
payment of a mortgage exists when he negotiated the loan for the mort-
gagee, and the latter permitted him to retain possession of the bond and
mortgage after the principal was due, and the mortgagor, with knowl-
edge of that fact, and relying upon the apparent authority thus afforded,
made payment to him. The mortgagee under such circumstances will
not be permitted to deny that the attorney possessed the authority which
the presence of the securities indicated. Id.
3. PAYMENT TO AN ATTORNEY HAVING POSSESSION OF A BOND AND MORT-
GAGE is not invalidated by the fact that the mortgagor who made such
payment did not then see the bond and mortgage, if, in response to his
inquiry, he was informed that they were still in the possession of the at-
torney, and such information was true. Id.
4. PRESUMPTION OF CONTINUANCE OF AUTHORITY TO RECEIVE. — If an attorney
is given apparent authority to receive payment of a bond and mortgage
by the fact that he negotiated the loan, and they are by the mortgages
left in his possession, there is no presumption that this authority or
possession continues; and every time the mortgagee makes a payment to
such attorney, he must ascertain that the bond and mortgage remain in
his possession. Id.
5. TERMINATION OF AUTHORITY TO RECEIVE. - Authority of an attorney to
receive payment of a bond and mortgage left in his possession by the
mortgagee terminates on his parting with such possession, though he
does so unlawfully, and without the knowledge of the mortgagee. The
payments subsequently made to him upon his false assurance that he
still retained possession of the bond and mortgage are inoperative. Id.
6. APPLICATION OF PAYMENTS. - Where a person indebted to another on a
mortgage or on a judgement, and also on an open account or on a note,
makes a payment generally, and the creditor has made no appropriation
of such payment, the law will apply it to the most burdensome debt,
that is, to the mortgage or judgment, in preference to the note or open
account. But where the debtor is indebted on a mortgage and ou a
judgment, both of which are liens on his property, the payment ought
to be applied to the oldest lien due and enforceable at the time the pay-
ment is made. Frazier v. Lanahan, 516.
7. CHECK AS CONDITIONAL PAYMENT. - In the absence of any special agree-
ment to the contrary, the mere acceptance by a creditor from his debtor of
the check of a third person, payable to the creditor's order, for a pre-ex-
isting debt, is not absolute, but merely conditional, payment, defeasible
on the dishonor or non-payment of the check, and the burden of proof is
on the debtor to show that the check was taken as absolute payment.
Holmes v. Briggs, 804.
& CHECK AS CONDITIONAL PAYMENT. - Where a creditor has accepted from
his debtor the check of a third party as conditional payment for an ex-
isting debt, the facts that he does not give the debtor prompt notice of
the dishonor of the check, but retains it, and collects a dividend on it
out of the assigned estate of the drawer, do not raise a presumption that the check was accepted as absolute payment, but that question is for the jury to determine. Id.
CHECK AS CONDITIONAL PAYMENT - NOTICE OF DISHONOR to Debtor. Where the debtor has given his creditor the check of a third person in payment of an existing debt, and the debtor is not a party to the check, either as drawer, payee, or indorser, he is not strictly entitled to notice of dishonor, and cannot complain of delay in giving such notice, without proof that he has actually sustained loss or damage thereby. Id. See BANKS AND BANKING, 12, 13; Costs, 2, 3; HUSBAND AND WIFE, 11; MUNICIPAL CORPORATIONS, 1-3; NEGOTIABLE INSTRUMENTS, 12, 13; SURETYSHIP, 2.
See BONDS; HUSBAND AND Wife, 1.
See HUSBAND AND WIFE, 13.
PERSONAL EXAMINATION.
See PHYSICIANS AND SURGEONS, 4-6.
See DAMAGES, 3, 4; Master and Servant, 3, 5, 11, 12, 20; NEGLIGENCE; RAILROAD COMPANIES.
PETITION.
See PLEADING, 1.
1. PATIENT MAY WAIVE PROTECTION AFFORDED BY STATUTE AGAINST CALLING PHYSICIAN to give evidence of information acquired in a professional character; and what he may do in his lifetime those who represent him after his death may also do for the purpose of protecting interests claimed under him. When, therefore, the dispute is between the devisee and heirs at law of a testator, all claiming under the deceased, either the devisee or heirs may call the testator's attending physician as a witness. Thompson v. Ish, 552.
2. MALPRACTICE SURVIVAL OF ACTION AGAINST PARTNER. the pendency of an action against two physicians, as partners, for damages caused by negligence and unskillfulness in setting and treating a dislocated shoulder, one of them dies, the action abates as against his personal representative, but may be prosecuted to judgment against the surviving partner. Hess v. Lowrey, 355.
8. MALPRACTICE EVIDENCE OF DECLARATION OF DECEASED PARTNER. — In an action against the surviving member of a firm of physicians for damages for malpractice, the plaintiff may describe the acts and repeat the declarations made to him by the deceased partner while resetting his broken shoulder, and while treating him afterwards for the injury sus tained. Id.
4. MALPRACTICE EXHIBIT OF INJURED LIMB TO JURY. - In an action against the surviving member of a firm of physicians for damages for malpractice in resetting a shoulder, the plaintiff may exhibit his shoulder to the jury. Id.
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