Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-07-27

81 Tennessee, delivered az Jac son, at
april Term, 1895.
James H. arvoood PantT in Error rs. Jarvis Tra5ue &C.,
Defendants ia Error.
The defendants ia error nrought their sction OF
assumPsL ia the Circuit Court Of Gibson county,
against the plaintiff in error, upon two bills Of ex
change
The plaintiff in error drew the bills upon North
way, buchanan & Co, by which they we're directed
10 pay TO the order Of the plaintiff below, the
amount specified At he branch Of the Bank Of Tea
at Trsniou.
The FIRST tW counts in The declaration, afer Cor
re:tly describing The biiis assert that st maturity
they were presented at the Branch Of n. bank Of
TsIHesses, al Trenton, aud regalary protested
for non payment, having been Previ. usiy accepted
ny the draWees, Of which the defendant jam s
HAYWOOD the drawer, hal due ant legal notice
There are two additional counts in which the want
OF notice Is sought 20 be excused bY averrlng htt
at The maturity Of the bills, 'the drawee or accept
or, had 10 effects or funds, nor auV re'sontbls eX
pectation Of funds at said BrHgeh b NIX, to pay
said billS," and that he defendant had ''sustauet
damage by reason Of the non IRE eminent Il
said bills, and BY not having notice Of said non
payment"
To these last two counts the defendant demurred;
the demurrer was overruledey the Court and he
pleaded Jn-assumpsit 70 the whole declaration
On the trial the plaintiff read to the Jury, the
bills aat the NOtarial certificate Of protest, and
notice 10 the defendant. they also read an article
Of agreement between Bucbanan. Of the firm Of
Nor hWay, Buchanan Co, the draFees, aud The
firm of HarWood s. Brothers, as follows, TO wit:
''Whereas. HarEo0d & Brothers have sofa their
stock Of goods 81 Eaton 10 ROrthWay, Buchanan &
Co., and Ehereas w Buchanan, one Of said hrn,
has not paid any part Of The purchase money 10
HarWood & Brothers. il is hereby agreed that the
said William J Bach man shah remain as one Of
sad firm for the term Of twelve months, aud shall
carry on The business Of buying snd selling g'ois
wares, auI merchandise in his name, as one Of the
M aud shall give his close and str ct attention 20
he business Of the firm; and it is fur her agreed
that for and in consideration Of such services, ne
shall receive on. Of he P-ojs Of the establishment
three hundred dollprs per anuum, aud hts board
and washing, and the balance Of the profits, ard
one-third part Of the capital shall reUru TO the
said Harw7od B others, after paying the debts OF
the establishment"
The defendant then introduced ". G. HarHoOd,
whose competency as a witness was objected 70 BY
the ulainifF on the ground Of Interest," the obj-o-
ton was overru ed, and be witness testified, ihat
since the commencement Of this suit, the N0taTials
certificate Of protest has been altered, 5y striking
out the word 'Eeut." and substituting the word
.served" SO as 70 tx evidence Of notice Of protest
for he defendant
There vas ether evidence pro aud cen. which
il i deemed uauecessIry to Houce. The Court
charged the jury .. Iha, plaintiffs had shown no no
tieg Of protest sc given 10 the defendant, and
that the evidence did not show any waiver OF no.
tce by defend mt If he bad been euttled 20 it, hut,
that BY the contract between Buchanan aud Htr
wood and Brothers, the later we're constituted
pariuers in that firm therefore the defendant was
not entitled 20 notice
There were verdict and judgmeu. for plaintiffs.
The Court refused neH trial, and the defendant
appealed
We thinkthe Court erred, in overruliug the defen~
dani's demurrer 20 the last two c0Ua's in the dec
rs nu
presentmeut Of said bills for payment and not Civ
ING notice 4" that said drawer or aCceptor, bad no
effects OF funds aBy reasonable expectation OF
funds at said Branch Bank, and sustained nc
damage by reason Of fnon-Presentment and want Of
notice "
This averment is not sufficient to excuse notice
For anything that appears to the contrary the de-
fspdsut NAV have drawn this bill for the secODmo-
datCn of til sccept0r, or he may have had funds,
in the hands Of he acceptor, who had neglected 10
place them, IN the proper time, at the place Of pay
ment; in either event be would be entitled to strict
notice, 90 as to enable hjm at once 10 protect his
interest, BIZ looking after the fund, 10 the latter
case. and takisg steps 10 secure himself from the
acce eptor in the former The avermenl hat the de-
fendaut had sustained damage By reason OF non
presentment and want Of notice Is a mere leg Al
conclusion and sers fOrth no sufficient facts uoon
which il can rest. See Chitty on Bills. 43o-0
To excuse notice. the aveTment should have been
y
or reasonable expectation Of fuads, in the hands OF
The draWeG
This being So then, on the fret two counts which
aver due and legal notice the proof failed 10
show such notice. The recovery was Hho!iy unau-
tAarized The faci, however, az 10 tbe notice should
have been, with proper Instructions, submitted to
The Jury There are, o. We think, two valid o'Jec
tions 10 excusiug the want OF notice on the as um-
ed grounI that The defend .nt was partner Of ne
frm OF NorIhway, buchanan Co, the ac;ePioTs
Bat the declaFatigu AYERS no such ex'u.e "h'Gu
was necessary TO nOiry the parry that be might
prepare his defence aud IN iEe second pace We
10 not think the article Of agreement relied on Tor
thai purpose constitutes bin ner Of lha' hrn.
Il was merely q means, on the part OF HarWood
and oihers to secure themselves for the amount
buchanan vas 10 leb ed 20 them for the & 1ods he
had purchased from them, and failed TO pay over.
We therefore, thick the Court erred on thIs point
in his instructions 20 the Jary.
We see nothing in theTec0rd TO render W. u Har-
wood incompetent as Wi'ness
The Indictment must be reversed, and the cause re-
,o,do,, foT apofber trial HARRIS. ,
Test: NJ. D WELCH, CeTk