note; because, until endorsed, the instrument is imperfect, and has no validity
as a promissory note. Scull et al. vs. Edwards surv., 24.
3. The first endorsee of such a note, does not take a derivative, but a primitive tis
tle, and therefore the endorsement, as to him, is not technically such, but a part
of the instrument itself, thus made valid. Ib.
4. Where suit is brought upon such instrument, and the defendant craves oyer of
the "writing sued on," grant of oyer both of the body of the instrument and the
endorsement is strictly responsive to the prayer of oyer; and both become part of
the record. Ib.
5. Under our statute, where an obligation is assigned, it is subject to any set-off
held by the obligor against the obligee before the assignment, as held in Smith v.
Capers, ante. Robinson vs. Swigart, 71.
6. It is a general rule of law, in reference to commercial notes, that where it is shown
in an action against the maker of a note, by the holder, that it was without con-
sideration, or that the consideration has failed, wholly or in part, or that it was
fraudulently put in circulation, the holder, to protect himself against the equities
of the maker, must show that he acquired the paper before it matured, and that
he is a bona fide holder for a valuable consideration-in other words, that he re-
ceived it in due course of trade for value. Bertrand et al. vs. Barkman, 150.
7. To constitute a bona fide holder, for a valuable consideration, within the mean-
ing of this rule, he must not only have had no notice, express or implied, of the
equities of the maker, but he must also have given either money or property in
exchange for the note, or have received it absolutely and unconditionally in pay-
ment of a pre-existing debt, and relinquished some available security, or some
valuable right on the strength of the identical paper so innocently received in
due course of trade. Ib.
8. When, however, the note is transferred only by way of indemnity against proba-
ble future loss, or from an existing liability, or of collateral security for a pre-
existing debt, it is not such a holding for value as comes within the rule. Ib.
9. A plea denying that a blank assignment was made on the day alleged in the dec-
laration, and averring that it was made after suit brought, must be sworn to, un-
der our statute. Sanger vs. Sumner, 280.
10. So a plea alleging that an intermediate assignee was the agent of the original
payee,
that the note sued on was assigned to him merely for collection, and that
he had no right or authority to assign it to plaintiff, must be sworn to. Ib.
11. A judgment may be assigned as a chose in action, so as to enable the assignee
to control the execution for his benefit, as held in Clarke's ad, vs. Moss et al., 6
Eng. 736. Ib.
12. The assignee of a note or bond, under our statute, takes it at his peril, and with
the risk of any latent equity that the maker could set up in any suit as against
the payee or obligee. Walker ad. et al. vs. Johnson et al., 522.
1. A partnership for the practice of law, is legal, and, as in other partnerships, the
act of one partner, in the professional business, is the act of all the partners.
Every responsibility incident to other partnerships, in general attaches to legal
partnerships as well as all corresponding rights. Smith et al. vs. Hill et al., 173.
2. Either partner may attend to business entrusted to the firm. But if the firm con-
tract with a client for the personal services of a particular partner, and he fails
to perform them, it is a breach of contract; yet the damages for such breach will
be but nominal, if another partner shall perform the duty with due professional
skill, and without injury to the client. Ib.
3. A contract with a firm for the services of a particular partner, at a stipulated
fee, cannot be broken by the client, upon the death of such partner, without ten-
dering to the survivor a fair compensation for services rendered; and if the sur-
viving partner shall render the services with due professional skill and diligence,
he is entitled to the entire fee. Ib.
4. An attorney has a lien for his fees upon a judgment recovered for his client; and
may enforce such lien against an assignee of the judgment who has received the
avails and discharged it, without previous notice to the assignee. Sexton et al.
vs. Pike, 193.
5. And where the defendant in the judgment, having notice of the severance of the
relation of attorney and client, after judgment obtained by the attorney, pays
the whole amount to the plaintiff, he may be held responsible by the attorney for
his fees in the cause. Ib.
6. Beers placed in the hands of WM. C. SCOTT, as an attorney, a debt on Brittin,
for collection; Scott took of Brittin in payment of the debt, an assignment of part
of a debt due by bond from Stewart to Brittin, and secured by mortgage; Scott
afterwards transferred to Mason part of the mortgage debt, so assigned to him by
Brittin. In the mean time, and before this transfer by Scott to Mason, Beers
assigned to Walker the debt on Brittin, which he had placed in Scott's hands
for collection: HELD, That Scott had no right, without special authority from
his client, to receive from Brittin the assignment of the mortgage debt in pay-
ment of the debt which Brittin owed to Beers, and that Beers, or his assignee,
Walker, might affirm or disaffirm the act. Walker vs. Scott & Mason, 644.
7. HELD, further, that Walker, assignee of Beers, having elected to affirm the act
of Scott in taking such assignment, he was entitled to the full benefit of the
sum so assigned by Brittin to Scott in payment of the debt due from Brittin
to Beers-that the mortgage debt assigned by Brittin to Scott, was not such
negotiable paper as comes within the exception to the general rule, that the
rightful owner may reclaim his property wherever he can find and identify it,
and that Beers, or his assignee, had a right to the sum so secured to be paid,
even against Mason, an innocent purchaser for a valuable consideration-that
Mason stood on the same general footing with all others, who buy property in
the market, subject to the rights and claims of the true owner, and must, if
he were imposed upon in regard to title, look to the vendor who imposed upon
him. Ib.
8. HELD, however, that Mason was entitled to the benefit of his assignment to
the amount of Scott's fee as attorney, less a part of the debt on Brittin which
Scott had failed to include in receiving the assignment from Brittin, and which
should be deducted from his fee by reason of his negligence. Ib.
9. Complainant having charged Scott as acting as an attorney in the premises,
he admitted, in his answer, that he had received the debt on Brittin from Beers
for collection, as an attorney, and executed to him such receipt as is usual
under an ordinary general retainer, but that there was a verbal agreement
between him and Beers, that he was to have one-half of the debt if he succeeded
in collecting it, &c., Brittin's solvency being doubtful: HELD, That his answer
was not evidence of such verbal agreement, but that this was matter in avoid-
ance, and should have been proven aliunde. Ib.
1. Under the act of March 3d, 1838, (Pamph. Acts, 1837-8, p. 136,) the Bank of the
State may sue upon notes payable to her, in Pulaski circuit court, and issue
writs to the counties where the defendants reside; and this, without any allega-
tion in the declaration, as to the residence of defendants. Conway et al. vs. State
Bank, 48.
2. The bank of the State is yet a corporation, and a plea denying it, should be
stricken out.
3. It is settled that a corporation, unless restricted by its charter, or prevented
by the operation of some bankrupt or insolvent law, by virtue of its general
power to contract, may well make an assignment, of its effects, entire or par-
tial, if made bona fide for the payment of its debts, the same as any natural
person may do, and the corporation has the same right to make preferences
among its creditors, of particular creditors, or classes of creditors; and such pre-
ferences, when they are meritorious, so far from furnishing an argument against
the deed, conduce rather to uphold it. Ringo vs. Biscoe et al., 563.
4. There is no obligation upon a bank, in making such assignment, to provide
that its notes shall be received in payment of debts due it; on the contrary if the
object is, in contemplation of insolvency, an equal and fair distribution among
its creditors, in order to attain that object, the notes cannot be so received, un-
less so held by the debtors of the Bank, as to become legally the subject of
set off; and the note holders would have to receive their dividends out of the
assets, as other creditors. Ib.
5. But there is no decision sustaining the right of a corporation to make an as-
signment, in its terms or effect, contrary to the provisions of its charter, which,
to the trustees, is a higher law than the deed of assignment. Ib.
6. The Real Estate Bank, in making her assignments, might well prefer those
holders of her notes, who were willing to come forward, and deposit them,
and accept certificates, with six per cent. interest; but she could not compel
any creditor, who chose to run the risk of a failure of assets, to forego any part
of his claim or demand against the Bank or her assets-he might be postponed,
but could not be deprived of his recourse upon any surplus of assets that might
remain after the prefered creditors were paid. Ib.
7. Leaning in favor of that construction of the deed of assignment, which will
uphold it, the court concludes that it was not the intention of the Bank, in
making the assignment, to exclude or postpone any one who became a creditor
of the Bank, in the course of her banking business, in favor of the bond-holders
who advanced the original cash capital, for which the stock mortgages are
liable. Because such preference of these bond-holders would have been the
same in effect as if the Bank had made the assignment for the benefit of her own
stock-holders, which would have been fraudulent and void, as against a bill-hol-
der. Ib.
8. As any holder of the bills, or negotiable security, of the Real Estate Bank
had a right of action at law against the Bank for a breach of the contract, he
is entitled to follow the assets in the hands of the trustees, under the deed of
assignment, and subject them, by proceeding in equity, to the payment of his
demands. Ib,
9. The answer admitting assets, and no question arising as to whether, by the
terms of the deed, complainant is postponed to other creditors, he is entitled to
a decree. Ib.
10. Any right to recover interest or damages, which became attached to the notes
in consequence of the suspension or refusal to pay them, by the Bank, was trans-
ferable with the notes, and passed by delivery to any holder. Ib.
11. The bills of the Bank being payable on demand, at a particular place, the
holder is entitled to six per cent. interest thereon, from the time of such de-
mand of payment upon the trustees of the Bank, and refusal to pay, and not
from the time of the general suspension of specie payment by the Bank, or from
the date of such bills. Ib.
12. The bill-holder is also entitled, under the 38th section of the charter of the
Bank, in addition to such interest, to ten per cent. damages upon the amount
of the bills, from the time of such demand by him, and refusal to pay, and
not from the time of the general suspension, &c. Ib.
1. Where judgment is obtained against a party, execution issues, and, under in-
structions of plaintiff, he pays it in Arkansas bank paper to the sheriff, and af-
terwards the defendant brings error and reverses the judgment, on such reversal
he is entitled to receive back the bank paper from the sheriff, and, in the absence
of a showing to the contrary, the presumption of law would be that he had so
received it back; and such payment being not a payment of the original debt, but
of the judgment which was afterwards reversed, on a subsequent trial, after the
case is remanded, the defendant cannot avail himself of such payment in bar of
a new judgment. Ringgold vs. Randolph, 328.
2. If the plaintiff had in fact received the money of the sheriff, and had not paid it
back to defendant on reversal, defendant might avail himself of it by set-off, &c.,
but not as a payment. Ib.
1. It appears from a record entry that the court refused, on the objection of the
plaintiff, to permit the previous will, the evidence in support of it in the probate
court, and the order admitting it to probate, to be read in evidence. The bill of
exceptions shows no such objection, and no such ruling of the court: HELD, That
it was unusual and unnecessary to make such statements in the record, and that
it being the appropriate province of the bill of exceptions to put such matters of
record, what appeared in it, in reference to the matter, would prevail over the
record entry. Rogers et al. vs. Diamond, 474.
2. In settling a bill of exceptions, the judge may recall a witness to aid his memory,
if in doubt as to what he testified; but unless he is satisfied of the truth of the
statement of the witness so recalled, he is not bound to receive it as true. Col.
lier vs. State.
3. So he may, in his discretion, recall a witness, at the request, but not as the right,
of either party. Ib.
4. A judge, in certifying the evidence or facts proven on the trial, must act upon his
own responsibility, in the conscientious discharge of his duty. Ib.
BILL OF EXCHANGE.
See BONDS, BILLS AND NOTES.
1. The court declares that so much of the act of January 8th, 1845, (Digest,
p. 368,) as prohibits any person from setting up a billiard table or ten-pin
alley without paying a sum of money into the State Treasury as a license
therefor, is repugnant to the constitution and void; because there is no power
to do that indirectly which cannot be done directly, and the license is none
the less a tax for the privilege of setting up such table or alley, because col-
lected or enforced by means of a criminal prosecution. Washington vs. State,
752.
2. The indictment also contains a count for setting up and keeping a ten-pin al-
ley without paying the sum of $25 into the county treasury, under a provis-
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