Riggs v. Andrews & Co. the defendant had been in the habit of receiving letters from and using the post office at Selma, which, as well as that at Cahawba, were the nearest offices to him. There was no other evidence that the defendant had ever received said notice of protest. On this state of evidence, the Court instructed the jury, that if at the date of said protest, the defendant's family had established their residence at their settlement in Dallas, and the defendant considered that place his home, and if the post office at Selma or Cahawba were the nearest to said residence, the notices so sent as aforesaid were sufficient to charge him, notwithstanding he may have spent the greater portion of his time on business in Mobile. The defendant asked the Court to instruct the jury, that though the defendant's family, prior to the said protest, may have resided at their said place in Dallas, and though the same may have been regarded as the family residence, and the defendant may have made them occasional visits, and spent a portion of his time at the same place, yet if his place of business and employment aforesaid had not terminated in Mobile, but was continued there by him until after the said month of May, 1844, and the greater portion of his time spent in Mobile, in the exercise of his said employment until after that time, then the notices addressed to him by mail to Dallas as aforesaid, were insufficient to fix his liability. This was refused. The defendant excepted to the scveral rulings of the Court, and now assigns the same as error. R. SAFFOLD, for the plaintiff in error, insisted, 1. The demurrer ought to have been sustained, inasmuch as the note sued on was not described according either to its literal import or its legal effect, as respects the maker or makers thereof. [Nat'l Bank v. Norton, 1 Hill, N. Y. 572; Dickerson v. Valpy, 10 B. & C. 128; 6 Esp. 18; 4 Dana, 375; Sanford v. Nickels, 4 John. 224; 1 N. & McC. 561; 1 McCord, 388; 18 Pick. 503.] 2. The demurrer ought also to have been sustained, because the declaration states the note as made by certain persons using the name and style of Gayle & Bower, without shewing what relation they bear to each other generally, or in the particular transaction. Nor does the declaration shew the christian names of the makers of the note, or who composed the company. 3. The Court ought to have excluded the note from the jury, Riggs v. Andrews & Co. as the one offered in evidence, in legal effect, was the note of Bower only, and not that of Gayle & Bower, as described. 4. Because the blank indorsement was not filled up when offered in evidence. 5. The charge requested by the defendant should have been given by the Court. EDWARDS, contra. GOLDTHWAITE, J.-1. The demurrer to the declaration for the supposed variance from the indorsement on the writ, and the proposition to exclude the note from the jury, present the same question; and we think it was properly decided in the Court below. Whatever may be the authority of one partner to bind the firm after its dissolution, it is certain he may do so, if he has an express authority given for that purpose, and here the prima facie intendment is, that the note declared on and offered in evidence, is the note of Gayle & Bower. The addition after the signature of "in liquidation," need not be carried into the declaration, and if omitted is no variance. [Fairchild v. Grand Gulf Bank, 5 Howard Miss. 597.] Indeed, to the immediate indorsee suing his indorser, it makes no difference whatever, whether the previous names are false or genuine, as the indorsement is the cause of action, which, when made, is an admission of the genuineness of the previous signatures. [Free v. Hawkins, Holt, 550.] 2. There is nothing in the objection that the indorsement was in blank when the note went to the jury; the note vested as completely by the blank indorsement as it could by any other mode, if the plaintiffs were the owners; and the production of it by them, indorsed in this manner, is prima facie evidence of their ownership. [Chitty on Bills, 255; Chewning v. Gatewood, 5 Howard Miss. 552; 2 Miller's Louis. 192.] 3. The charge refused by the Court, was properly so, because the evidence was not such as is assumed by the defendant as the basis for his legal propositions. Thus it did not appear that his place of businees and employment in Mobile, had not terminated at the maturity of the bill, or that it was continued there by him until the month of May; nor that the greater portion of his time was spent in Mobile, in the exercise of the employment in which Lewis v. Bradford. he had been engaged previous to the removal of his family. After a prima facie case of removal was made out by the evidence; as was in this case, by showing the removal and settlement of the defendant's family at a different place from the one where they formerly had resided, it was incumbent on the defendant to show affirmatively, that his place for the transaction of business was continued at Mobile, for the matter was peculiarly within his knowledge, and could be made to appear with certainty and precision. The Court below did not err, therefore, when it refused a charge based upon evidence which, in our judgment, had no tendency to prove, that the defendant, after the removal of his family, continued to transact his ordinary business in another place. Judgment affirmed. LEWIS v. BRADFORD. 1. Where one has the money of another in his hands, and uses it, he cannot avoid the payment of interest, by answering that he does not know what profit was made by its use. In such a case, he is at least liable for interest whilst it was so employed. Error to the Chancery Court of Talladega. THE bill was filed by the plaintiff in error, to sell land jointly owned by the parties, and for an account of profits in a previous transaction, as partners. The only question made in this Court, arises out of a claim for the profits, or use of a sum of money belonging to the partnership, which it is alledged the defendant in error retained in his hands, and used for several years. The allegation is, "that not long after the purchase of said land, defendant sold one of the tracts for $1,200, and received the money -that defendant refused to account to complainant for his proportion of said money, for several years, and during all that time Lewis v. Bradford. he had the same hired out at interest, or otherwise profitably invested." The prayer of the bill is for a sale of the remaining tracts, and for an account of the moneys received, and of the profits upon the use of the money retained. The defendant in his answer upon this part of the case, admits the receipt of the money as alledged, in the latter part of 1837— "that he cannot positively say what interest or profit accrued on said money, as he kept no account of the same, considering the same to be deposited with him, subject to be drawn from him when called for." It is also stated, that a suit was depending against him for the land, of which this money was the proceeds; and which he paid over as soon as the suit was determined. The Chancellor in his decree, refused to require the defendant to account for the profits, considering his answer to amount to a substantial denial that any profits were made, and there being no proof that such was the fact. From this decree this writ of error is prosecuted. L. E. PARSONS, for plaintiff in error, contended that the matter was within the knowledge of the defendant, and his omission to deny it, was an admission of the fact. [2 Bibb, 67; 3 Monroe, 187; 3 Litt. 57; 1 J. J. M. 212; 4 Id. 87.] The parties did not go to trial on bill and answer by consent, and therefore the answer is not proof. [5 Ala. Rep. 60; 5 Id. 324.] A partner, using the partnership funds for his own private purposes, must account, either for the profits made, or at least pay interest. [1 John. C. 466; 1 P. Will. 140; 15 Vesey 218; 5 539; 17 Id. 298; 7 Cow. 11.] W. P. CHILTON, contra. BAR ORMOND, J.-The single question presented upon the recordIBRAR is, whether the defendant is liable for interest for the partnership funds whilst he retained them in his hands. The allegation is, that the defendant retained the money in his hands for several years, during which it was put out at interest, or otherwise profitably invested. This is impliedly admitted in the answer of the defendant, who does not deny that the money was employed by Lewis v. Bradford. him, but says, "that he cannot positively say what interest, or profit accrued on said money, as he kept no account of the same, considering the same to be deposited with him, subject to be drawn from him when called for." He also insists, that the title to the land, the proceeds of the sale of which was in his hands, was in dispute, and that he retained the money to answer that demand, if the suit should be decided against the firm. In the case of T. & J. Kirkman v. Vanlier,7 Ala. Rep. 230, the question of the liability of one for interest, retaining in his hands the money of another, is discussed at length, and many authorities cited; we shall not therefore enter upon the examination of the question further, than to state the general proposition, that where one receives interest from the money of another, or derives an advantage from its use, he shall pay interest to the owner. It is probable, that under the circumstances of this case, and from the trust and confidence reposed by each of the parties in the other, the complainant would have had a right to the profits made by an investment of his money, but as it does not appear what the profits were, he has at least a clear right to interest, whilst it was in the defendant's hands, if used by him, which, as already stated, the answer by strong implication, if not in direct terms, admits. If, as stated by the Chancellor, the defendant had the right to retain the money, pending the litigation about the title to the land, to exonerate him from the payment of interest, it was his duty to show, that he kept the money on hand, ready to meet the exigency, and that he did not use or employ it, or place it out at interest. But so far is this from being the case, that he admits he did use it, but that he cannot say what profit he made on it, as he kept no account of it. It being therefore clear that he did use the money of complainant, and he declining to state the profit which was actually made by its employment, he must account with the plaintiff for interest, during the time it was in his hands. The decree of the Chancellor as it regards this matter is therefore reversed, and the cause remanded for an account, in conformity with the principles here laid down. |