Allen v. Railroad.

A different rule in this particular situation has been enforced in cases involving offerers for passage on freight trains, in this State (Lane v. East Tenn., etc., R. Co., 5 Lea [73 Tenn.], 124); and elsewhere. See cases collected by the annotator of St. Louis, etc., v. Blythe, 29 L. R. A. (N. S.), 300, where it is said:

"So, the cases having to do with the carriage of passengers upon freight trains go further than those dealing with passenger trains, and hold that, if a person gets on a freight train without the required token, he may be expelled although he is willing to pay a cash fare."

The distinction is not fanciful or without substance. The acceptance of passengers on freight trains is a matter of choice on the part of the railway company; not so as to passenger trains. Those offering themselves for passage on freight trains are not so numerous, and usually they are so few as not to justify the company in keeping employees at hand to so watch the inflow of passengers.

So far as the court of civil appeals justified the charge of the trial judge in announcing a contrary rule to that approved above, there was error. Writ of certiorari granted, and the judgment modified accordingly; the cause being remanded for a new trial in the circuit court.

Pemiscot County Bank v. Nat. Bank.

PEMISCOT COUNTY BANK v. CENTRAL STATE NAT. BANK et al. (No. 21.)

(Jackson. April Term, 1916.)

1. BANKS AND BANKING. Cashier. Duties of. "Partnership."

Where a bank cashier who was also a member of a firm issued a draft to pay a firm obligation embezzling the bank's funds in his capacity as cashier, the bank cannot recover from the payees the amount of the draft on the theory that the cashier was merely paying his own obligation; for the commercial idea is that a partnership is practically an entity separate from the members composing it; this being particularly true as the name of the partnership indicated it was a corporation (citing Words and Phrases, Partnership). (Post, pp. 15-17.) Cases cited and approved: Holmes v. Sarrett, 54 Tenn., 506; Lacey v. Cowan, 162 Ala., 546; House v. Thompson, 40 Tenn., 512.

Case cited and distinguished: Menagh v. Whitwell, 52 N. Y., 146. 2. CORPORATIONS. Names.

Presumptions.

The name "Tindle Cotton Company" is prima facie that of a corporation, and not a partnership, and will be so treated by way of presumption in the absence of proof. (Post, pp. 17, 18.)

Case cited and approved: Ingle System Co. v. Norris, 132 Tenn., 472.

FROM SHELBY

Appeal from the Chancery Court of Shelby County.-F. H. HEISKELL, Chancellor.

Pemiscot County Bank v. Nat. Bank.

BOYD & BEJACH, for appellant.

JOHN D. MARTIN, for appellee.

MR. JUSTICE WILLIAMS delivered the opinion of the Court.

This is a branch of a case that was before this court at the last term, in which an opinion was delivered under the same name style. 132 Tenn., 152, 177 S. W., 74.

The present appeal involves an alleged demand of the Pemiscot County Bank of Caruthersville, Mo., against Flippin & Jones, a copartnership engaged in business at Memphis. This firm had transactions with Tindle Cotton Company, a firm whose place of business was at Caruthersville, Mo. The last-named firm was composed of Tindle, Roberts and Johnson. To collect an indebtedness due from the Missouri to the Memphis firm, the latter drew a draft for $1059.75 on Tindle Cotton Company, and deposited same in the Central State Bank at Memphis for the purpose of having it forwarded to Caruthersville for realization. The Memphis bank sent the draft to complainant bank, and upon its arrival A. C. Tindle, who was cashier of the complainant bank and a member of the Tindle Cotton Company, acting in his capacity of cashier, issued and mailed to the Memphis bank exchange covering the above and another collection item of $4000, making an aggregate of $5059.75, as follows:

"No 65226.

Pemiscot County Bank v. Nat. Bank.

"Pemiscot County Bank,

"Caruthersville, Missouri, Nov. 16, 1912. "Pay to the order of Central State Bank five thousand and fifty-nine and 75/100 dollars ($5059.75). A. C. TINDLE, Cashier.

"To National Bank of Commerce, St. Louis, Mo." The proceeds realized from the St. Louis bank were credited by the Memphis bank to Flippin & Jones and checked out by them in due course of business.

The Tindle Cotton Company paid no consideration to complainant bank for the draft, and its issuance was, as was later developed, in fact, an act of embezzlement on the part of its cashier. However, the Memphis firm did not know whether the Tindle Cotton Company was a corporation or a partnership, and had no knowledge that Roberts and Johnson were partners of Tindle. They were personally acquainted with A. C. Tindle, and all of their transactions with the Tindle Cotton Company were with and through him.

The appellant bank, complainant below, seeks to differentiate this case from the one reported 132 Tenn., 152, 177 S. W., 74. It was there held that, where a draft on this bank was drawn by Tindle, who was also president of a mercantile corporation, which draft was signed by him as cashier in favor of the corporation's creditor, no notice of embezzlement or of an exceeding of authority by the cashier was thereby imparted.

Counsel for appellant seek to distinguish the two cases on the ground that in the pending case the con

Pemiscot County Bank v. Nat. Bank.

cern favored by the cashier's act of embezzlement was a firm of which he was a member, instead of a corporation that was controlled by him.

We think the appeal should fail, and that the chancellor's ruling in favor of the Memphis firm should be affirmed.

While a partnership is not, strictly speaking, a person (Holmes v. Sarrett, 7 Heisk. [54 Tenn.], 560), yet it may be called a quasi entity. As is said in Lindley on Partnership, 166:

"Merchants and lawyers have different notions respecting the nature of a firm. Commercial men and accountants are apt to look upon a firm in the light in which lawyers look upon a corporation."

In a recent opinion Mr. Justice Holmes observed that since Lindley wrote "the notion that the firm is an entity distinct from its members has grown in popularity, and the notion has been confirmed by recent speculations as to the nature of corporations." The modern tendency of the law is "at this day to complete its recognition of a partnership as a body of itself, with its own means appropriated to the payment of its own debts." Parsons, Partnership, 449; 30 Cyc., 422; Lacey v. Cowan, 162 Ala., 546, 50 South., 281. A partnership owns its own property and owes its own debts.

"The well-established rule which excludes creditors of the several partners from the partnership property until that has paid the debts of the partnership is derived from the acknowledgment that a partnership is