warehousemen were the acceptors of the draft, and the
draft on its face directed the cotton to be sold and the
proceeds applied to its payment. Ibid.
6. Where the defendant signed a note, given by a mem-
ber of a firm individually, for money borrowed for the
use of the firm, as security, and upon a settlement of
the partnership affairs, that note was settled by the
acceptance by the plaintiff of a note made by said
partner, without security, and the defendant was not
present, assenting thereto, that would discharge him
from his liability as security. Simmons vs. Guise..... 473
1. Where notes and liens, payable to the order of plain-
tiffs, for goods sold belonging to them were in the
possession of their agent, with no authority to trans-
fer, and were represented by said agent to have been
lost, and were found in the possession of the defend-
ant, who denied knowing anything about them on in-
quiry made, the magistrates on the trial of a posses-
sory warrant for the same, properly awarded the pos-
session to the plaintiffs. Wilcox, Gibbs & Co. vs.
Turner.....
2. The fact that the plaintiffs took the note of their
agent for the amount of the liens and notes alleged to
have been lost, with the stipulation that when found
the same should be credited thereon, does not defeat
the right of the plaintiffs to the possession of their
property. Ibid.
3. When a suit was brought on a promissory note,
signed by one claiming to be the agent of the defend-
ant, and there was some evidence that the defendant
had accepted, knowingly, the consideration for which
the note was given:
Held, That it was error in the Court to rule out the
note as evidence. The case should have been sub-
mitted to the jury, under the charge of the Court, as
to the effect of the defendant's act, should they be-
lieve he had accepted, knowingly, the consideration
for which the note was given. Gilbert vs. Dent....... 238
4. When a note, payable at bank, is placed in a bank
for collection, it is the duty of the bank to see to it,
that it is properly presented for payment, and on its
dishonor, to have it duly protested, and notice given
to the indorsers. Georgia National Bank vs. Hen-
derson.......
5. When a bill of exchange payable at ......, was sent
to a bank for collection, and the bank treating it as a
bank check, and not entitled to days of grace, pre-
sented it for payment, and had it protested, etc., on
the day of its maturity, without days of grace, by
means of which the indorser was discharged, and it
was in evidence, that the bank was notified by the
indorser at the time that he claimed the paper to have
days grace:
Held, That the bank was liable to the person who de-
posited the paper for collection for damages, for its
negligence in not presenting the check, as required
by law, and causing notice of its non-payment to be
given to the indorser. Ibid.
6. The present holder of a negotiable promissory note
or bill of exchange is prima facie, presumed to have
acquired title thereto before its maturity, and in a suit
by the holder against the bank to which the paper
was sent for collection for failing to present it for
payment, and failing to notify the indorser of its dis-
honor, the present holder is prima facie presumed to
have been the holder at the maturity of the paper.
1bid.
PROTEST. See Promissory Notes, 4, 5, 6.
1. In the absence of any fraud or collusion on the part
of the railroad company, the mere transfer of the
stock on the books thereof to the purchaser, by di-
rection of the administrator, will not make the com-
pany liable as a guarantor or warrantor of the ven-
dor's title to the stock. Nutting et al. vs. Thomason
et al...........
2. A railroad company is not liable for injuries sus-
tained by laborers in the employ of a contractor who
was working for said company, though it may have
furnished implements and materials for the perform-
ance of such work. Central Railroad and Banking
Company vs. Grant.............
3. Where a plaintiff sues for damages sustained from
having been pushed off a car of defendant, while in
motion, by a negro, who emerged from the car and
stated that he was in charge of the same; this de-
claration, unless brought to the knowledge of the
defendant or its agents, who had charge of the train
at the time, is insufficient to make the defendant lia-
ble for the acts of the negro as its servant. Lindsay
vs. Central Railroad and Banking Company............ 447
4. Where a bill was filed setting up that the complain-
ant had conveyed by deed to a railroad company for
laying and using its track, one hundred feet width
of the land through his plantation, and trusting to
the assurances of the president of the road, that proper
stock-gaps should be erected, as they might be needed,
had neglected to put in the deed any stipulation as to
the gaps, and the bill prayed that the company might
be enjoined from running the cars and using the land
until the " gaps" were erected:
Held, That the injunction was properly refused by the
Judge, even though there might be equity in the bill.
Cook vs. North and South Railroad Company... 618
1. As no time was specified within which the defendant
was to build and pay the plaintiff for one-half of the
wall to be used by him, the law will imply that it
was to be done within a reasonable time. Rawson vs.
Bell.........
RECEIPT. See Guardian and Ward, 4, 5.
1. A purchase by a Receiver, as agent of another, of
property sold at his own sale, made under order of
Court, is voidable at the election of a party having a
beneficial interest in the property, and when such
election is promptly made, the sale will be set aside.
Carr, executor, et al. vs. Houser, administrator.....
RECORDING INSTRUMENTS.
1. It is not necessary that a Notary Public shall affix
his seal to the probate of a deed by a subscribing wit-
Nichols vs. Hampton.............
2. A mortgage recorded within three months from the
date of its execution is a lien from its date, even against
bona fide purchasers without notice. Ibid.
3. An affidavit, probating a mortgage, taken before the
attorney of the mortgagee, who is a Notary Public, is
not a legal affidavit, and a mortgage recorded on such
probate is not legally recorded. Ibid.
REFORMATION OF INSTRUMENTS.
1. When in November, 1864, a contract was made for
board for a year, and in February, 1865, a note was
given for the sum agreed on, but the boarding ceased
in August, 1865, and in November, 1865, the parties
had a settlement, and the equities of their Confederate
contract were agreed upon, the true value of the board
actually received, settled, and a new note given for
what was due:
Held, That this contract of November, 1865, was not a
renewal of the note of February, 1865, and that the
tax-affidavit, required by the Act of October 13, 1870,
was not necessary. Greene et al. vs. Lowry....
2. It is not necessary that the declaration shall affirma-
tively show a case to be within the exceptions men-
tioned in the 14th section of the Act of October, 13th,
1870, to excuse the filing of the affidavit required by
the 24 section of the Act. It is sufficient, if the facts
be made to appear to the Court by proof. Montgom-
ery et al., executors, vs. Pruitt et al....
3. Where, in a suit pending on a promissory note dated
before the 1st of June, 1865, it appeared that the suit was
in the name of an administrator, that a widow and
minor children were the sole distributees of the estate,
and that the note had been taken by the administra-
tor as part of the consideration of a tract of land sold
by him belonging to the estate:
Held, That, prima facie, the note was due to the widow
and minors, and within the exceptions to the Act of
October 13, 1870, so that the tax-affidavit was unnec-
essary. Smith, admistrator, vs. Howell et al............ 128
4. Where it appeared that the debt for which the execu-
tion was issued was contracted prior to June 1st, 1865,
VOL. XLVI. 48.
that it was for the unpaid purchase money due for the
land levied on, that the complainant was, at the time
of the comencement of the action on which the judg-
ment and execution were founded, in possession of the
land, and is still in possession, it was proper in the
Chancellor to refuse an injunction against the sale of
the property under said execution, applied for on the
ground that the taxes on the debt had not been paid.
Hambrick vs. Dickey et al........
5. To make one a "claimant" of the property, within
the meaning of section 5 of the Act of October 13th,
1870, so as to be permitted to file the counter-affidavit
there provided for, he must put in a claim to the prop-
erty, under the claim laws of this State. Adams vs.
Worrill.....
6. Where an action was pending on a contract made
before the first of June, 1865, and no tax-affidavit of
taxes paid was made as required by the Act of Octo-
ber 13th, 1870, and no motion was made to dismiss
for such failure, and a trial was had on the merits, it is
too late, after a verdict for the plaintiff, to move for
a new trial, on the ground that no affidavit was filed,
and no proof given on the trial as to the payment of
taxes. Everett vs. Southern Express Co.................. 303
7. The failure to make a motion to dismiss is an implied
consent that the case does not come within the Act. Ib.
8. Where a creditor applies for letters of administration
upon the estate of his deceased debtor, it was error in
the Court to exclude notes and mortgage to secure the
same, made by the debtor, which were offered in evi-
dence to show the indebtedness, on the ground that no
affidavit had been filed of the payment of taxes thereon.
Einstein vs. Latimer et al.
9. An executor, who has willfully or negligently mis-
managed the property in his charge to the injury of a
legatee, cannot avail himself of the provisions of the
Relief Act of October 13th, 1870, when sued by such
legatee. Anderson vs. Green, executor......
361
10. A plaintiff is a competent witness to prove the pay-
ment of taxes on the debt sued on, though the other
party to the contract may be dead. Mumford vs. King,
11. A claim by one partner against his co-partner for
an unascertained amount, growing out of partnership
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