Strauss vs. Waldo, Barry & Co.

of several copartners; secondly, that the plea in bar, as filed by defendant, was insufficient, in this, that it did not sufficiently deny the partnership as alleged in plaintiffs' declaration.

Defendant's counsel excepted to this ruling of the Court.

Defendant's second plea was in these words: "And for further plea, defendant says actio non, because he says, that at the time the said two rotes, the foundation of plaintiffs' action, were made, he was not a partner of the firm of D. Strauss." Verified.

Upon the exception defendant's counsel assign error.

LAW & SIMS, for plaintiff in error.

R. F. LYON, for defendants in error.

By the Court.-LUMPKIN, J. delivering the opinion.

On two notes given by David Strauss alone, the payees sue, and seek to charge Jacob Strauss as a partner. Jacob Strauss put in the plea of non est factum. It was demurred to, and ordered to be stricken out by the Court, upon the authority of Collier and others vs. Cross and another, (20 Ga Rep. 1,) and this case certainly sustains the Court in its decision.

I was not present when Collier and Cross was adjudicated. Of course, I shall bow to that decision, as to all others made by this Court, as law.

The defendant, Jacob Strauss, further pleaded, that at the time these notes were given by David Strauss, and upon which he is sought to be made liable, he was not a partner of the firm of David Strauss. And this plea is verified. This plea also was stricken out upon demurrer, as not being sufficiently full.

We differ from the Circuit Court upon this latter point If Jacob Strauss was not a partner of David Strauss, at the time these notes were given, prima facie at least, David

Johnson & Co. vs. Mechanics & Savings Bank.

Strauss had not power to bind him, by giving a partnership note. If there was any agency, or any other special reason, why Jacob Strauss ought to be bound, that could be proven under a replication to this plea. The plea, we think, was sufficient to put the plaintiffs upon proof of the partnership.

It is strongly laid down in Story on Partnerships, that even without this plea, where the partner, as in this case, does not sign & Co., he is deemed to have only contracted for his own private affairs, and does not bind his partners, unless the creditor shows by other proof, that the individual thus signing, contracted on account of the partnership affairs. Story on Partnerships, sec. 106 and note 2, and sec. 109 and

note 2.

Perhaps the judiciary Act of 1799, requiring the defendant to deny the notes on oath, has made the plea put in, in this case, necessary. Still, it is undoubtedly full enough to require proof of the firm by the plaintiffs.

Judgment reversed.

D. A. JOHNSON & Co., plaintiffs in error, vs. MECHANICS & SAVINGS BANK, defendant in error.

Where A. obtains advances from a bank to buy cotton, and it is understood that payment is to be made by giving drafts on the cotton, on the factors to whom it was to be forwarded:

Held, that the factors having failed, a tender of drafts upon said house, is no discharge of the original liability.

Complaint and bail, in Muscogee Superior Court. Tried before Judge BULL, May Term, 1858.

Johnson & Co. vs. Mechanics & Savings Bank.

D. A. Johnson, of the firm of D. A. Johnson & Co., drew from the agency of the Mechanics and Savings Bank, at Columbus, at one time $910 17, and at another time $1,000 He had no funds in said agency, but the money was paid to him on the faith of a letter of credit from Hardwick & Cook, of Savannah, and the understanding that D. A. Johnson & Co. would give a draft on said Hardwick & Cook, for the whole amount. Before the draft was drawn, plaintiff and defendant had notice that said firm of Hardwick & Cook had failed, and were insolvent. Plaintiff then demanded of defendant the money advanced, or the cotton, which defendant refused, but offered to give the plaintiff a bill on Hardwick & Cook, with knowledge of their insolvency. At the time the money was advanced, defendants were to invest the same in cotton, and ship it to Hardwick & Cook, and draw a bill on them for the advance; and a few days after said D. A. Johnson received said money, and after notice of the failure and insolvency of said Hardwick & Cook, said D. A. Johnson & Co. tendered the plaintiffs a bill on Hardwick & Cook, for the amount so advanced to them.

It was agreed that the Court might decide, from these facts, whether plaintiff was entitled to recover of defendants; whereupon, the Court decided that the plaintiff was entitled to a recovery. To which decision defendant's counsel excepted, and now assigns the same as error.

WELLBORN, JOHNSON & SLOAN, for plaintiffs in error.

JONES & JONES, for defendant in error.

By the Court.-LUMPKIN, J. delivering the opinion.

The Johnsons came to Columbus, with a letter of credit from Hardwick & Cook, of Savannah, to the agency of the Savannah Savings Bank, at Columbus, to furnish funds to

Johnson & Co. vs. Mechanics & Savings Bank.

enable the Johnsons to buy cotton. On the 15th and 16th of December, 1856, the Johnsons borrowed $1,910 17, and it was understood that, according to their habit of doing business, they were to forward the cotton, which they bought with the money thus advanced, to Savannah, and draw on it at thirty days, to pay the bank.

On the 17th of the month, the day after the last cash was drawn, both the bank and the Johnsons had notice of the failure of Hardwick & Cook. The bank immediately called upon the Johnsons to refund the money just loaned, or to give the bank the control of the cotton. They refused to do either; but offered to give a draft on Hardwick & Cook, at thirty days, without showing, or even pretending, that the cotton purchased with the plaintiff's money, had been forwarded to Savannah. It does not appear that it ever was sent. The probability from the proof is, it never was.

The plaintiff sued forth with, to recover the cash advanced to the Johnsons.

It cannot be seriously insisted, that the offer to give a draft upon an insolvent house, was payment of the defendants indebtedness. The bank never agreed to accept a draft as payment, or extinguishment of their demand. It was but a security, at best, for the original indebtedness. And they might decline taking it, if they considered it unavailable, which they did; and hold the parties bound upon their original liability.

And then the defendant not having shown that they had forwarded the cotton to Hardwick & Cook, what means were provided for the payment of the draft, which they offered to give?

Suppose certain bank bills had been mentioned as the currency, in which this loan might be paid, and the bank had failed, and the defendant had then offered to procure the bills and discharge the debt? This attempt is equally as reasonable. For in this case, he still retained the cotton, the only resource for raising the funds, and yet it is gravely proposed

Irwin & McKee.

to settle with the creditor, who supplied the means to buy the cotton, by giving him a draft on an insolvent house!

Judgment affirmed.

JOHN IRWIN, plaintiff in error, vs. JAMES MCKEE, defendant in error.

[1] Too late to object to process after party has appeared, confessed judgment, and entered an appeal.

[2] A Sheriff has no authority to collect money from a defendant who is sued, until he is commanded by an execution to levy it of his property.

Complaint and appeal, from Stewart county. Tried before Judge KIDDOO, April Term, 1858.

This was a suit on a note, and on the appeal the defendant moved to dismiss it, on the ground, that the process to the declaration was made returnable to the April Term, 1857, of the Superior Court, when it appeared that the said appeal was made from the October Term, 1856, of said Court.

The process to said declaration bore date April 1st, 1856, and required the defendant to appear at said Court, to be held on the third Monday in April next.

Which motion was refused by the Court, and to which defendant's counsel excepted.

The defendant pleaded that by his agent, John M. Scott, he made a tender to and offered to pay Russell, attorney for plaintiff, $1,110 41 to be credited on the note sued on, 5th March, 1856, which Russell refused.

Plaintiff gave in evidence the note sued on for $1060, due 1st March, 1855.