Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-05
DECIsIoNs oF Tna - ooURT.
OFFICIAL.

Opinions Of the Supreme C0urt of the
state Of Eennessees al Jackson April
Tern1s 1859.
The Pansrs Bank and 0thsrs vs. Douglass, Duvan c.
The object Of the bill is to obtain satisfaction Of
several bills Of exchange, Of which the Bank is
holder cut Of real property mortgaged by the de.
PENDANTS for the indemnity Of the compliments By
G. w. Shaw & Co.
The defendants were extensively engaged in the
manufacture Of Flour, in the city Of Memphis and
the complainants, Shaw & Co., were Commission Ner-
chants, Of New Orleans.
On the oath of June, 1857, an arrangement was
made between them, by which it was agreed that
Shaw Co. should be the sole agents Of defendants
for the sale Of -four in New Orleans market. In
consideration whereof, Shaw & Co.. undertook to
give the defendants "a standing credit Of not ex-
ceeding fifteen Thousand dollars in dccepdnceS. hav
ing not less than sixty days to run-ts credit and
arrangement to extend Tor six months" for which
aCceptances they were to receive % per cent com
mission. The defendants, Douglass, Duvall q Co..
were to make weekly shipments Of flour. proportion
ate to the amount Of aceeptances Shaw 81 Co.,
might be under and for the sale of -four, the latter
were 70 receive p per cent commission. As an
indemnity TO the complainants, Shaw & Co., the de-
fendants conveyed in trust certain real estate, stu
ated in the city of Memphis. The object and inten-
ton Of the mortgage is stated face Of the instru-
ment as follows
If, at the end of six months from this date, at
which tIae the defendants herein before set FORTH
are to cease, and if then, after settlement Of &C
counts, the said Douglass Duvan Il CO., shall be
found to be indebted to the said g. Shaw go, to
any amount upon the transactions betwesnIthe firms
aforesaid then and IN that case the trustee is en-
powered to SELL &c.
1t is alleged that during the continuance of the
above arrangement, bills were accepted by Shaw
Co.. for the defendants to the amount upwards Of
100000 and beyond the proceeds Of the -four ship
ped to the extent of more than $4,000.
1t seems that as the bills were drawn frcm time
to time they were regularly purchased by the Branch
of the Planters Bank at5Memphis, sfrom the defend
ants, and the proceeds paid out in their checks
The Bank is now the holder of seven of SAID bills,
which remain wholly unpaid, and Shaw Co.,
having failed, they have joined with the Bank in
bringing this to have satisfaction of said unpaid bills
out ofthe mortgaged property.
This was resisted by the defendants. They allege
that no settlement has ever been made between
Shaw & Co, and the defendants; they deny any in
debtedness on their part to Shaw & Co., and state
in their answer that the proceeds of the -four ship
ped by them to the compliments, Shaw a Co, eX-
coed the cash advances on the acceptances OF the
latter to the amount Of more than $1,000, which sum
they claim to be really due to them from Shaw TO-
They also deny that Shaw & Co., are holders of any
of said bills or that there is any balance in their
favor for money paid on their aceeptances-
These statements of the answer of the defendants
are not disproved And assuming the facts to be as
stated can any relief be decreed in favor OF SHAW
& Co. or the Bank.
So far as regards Shaw & Co.. we are at a loss to
perceive on what principle any decree can be made
in their favor, either upon the proper construction
of the mortgage deed, or upon general principles OF
law The mere fact of the acceptance Of the bill,
without payment, gives them no right OF action
against the drawers of the bills 1t IS the actual
payment of the bill that gives this acceptor who has
paid the amount out of his own funds the right to
maintain all action of assuDptst against the drawer
founded on all implicit promise by the latter to the
former.
If thereupon Shaw & Co, could not directly main
tain an action against the defendant for the money,
upon what principle shall they be allowed indirect
" TO accomplish the same end, by enforcing fore
closure of the mortgaget The question needs only
to be stated; it requires no answer And if Shaw
q Co. have no claim TO such portion the Bank, as
holders of the bills, can have none.
The indemnity provided, was to secure the ac-
eeptors for money actually paid upon their accep-
lance and not for the security Of the endorser or
holder of the bills.
1t results. therefore. that the decree Diminishing
the bill is correct and it is affirmed MCKINNEY.
Test: NJ. D. WEIGH, Clerk.