Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-06

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the lines oftravel Though Judge NJ.
Brien, the legal adviser Of the fsmi
when the loan had been efecte
was a resident citizen of NashviIl
without consulting him, or givir
him any information as to his intention al
purpose, ap agent was dispatched to De
Kalb county to pay these notes, which, b.
! a short time previous, MAS treated rs pc
manent loan. Why this haste to disehars
the notes ]? Why was not the friend an
advisor, Judge NJ NJ Brieh, eonsuItel
through whom the loan was procured? II
was Al Nashville, and was possessed of a
the Information relative TO the condition
The country knew Of the defeat Of til
Confederate forces, and could well see tn
| storm that was about 10 sweep over III
land No notice or information was give
to him, but the agent is posted TO a count
distant from Nashville, where the partie
could not be, in the nature Of things, pos
sessed Of thessame knowledge and condi
| ton Of the country. James Tubbs refused
on tie application Of the agent to paw tn
money, 10 receive il. He returned in
few days andinsisted upon his taking il. III
stated that il was good, that he would tax
it for his debts, that the authorities intend
ed making IL good, and the people woul,
have 10 take it. The currency was paid {,
Tubbs and the notes delivered M
to defendant We think the act
of the defendants in procuring Jane
Tubbs, who was the custodian Of the notes
to receive the Confederate currency
amounts to fraud in the sense of a Cour
Of Equity; vol. / Par. pol, and the author
tiles cited. Was James Tubbs the agent o
the plaintiff, anu a. such authorized TO re
cieve the payment OF the notes Tn,
authority to loan money, does not necessa-
rily imply authority to collect. Story or
Agency, sec g. 1t is insisted if he wa.
intrusted with the continued possession O
the notes, it was an implied authority tC
receive the money. This principle is re.
cognized as correct, but as an agent, he was
not authorized TO receive any but lawful
currency that is convertible into money, OF
money. Story on Agency. sec. ISL. And
the authorities there cited. To bind the
principal, there must be an absolute pay
ment of the money. This principle was
settled by this Court, in the case of Stewart
rs. Donall, / Yer. III; Hum. p. A; 6
Hum. p. 81. Story on Agency, sec. 2l5.
2Carter's j nd. Rep. 324. % H. Rep 40.
The payment in this illegal currency,
issued for a reasonable purpose was not
such payment Defendants knew the
purposes for which it was issued,
and in paying it to the agent were guilty
of an Assz%=Act. Ii is insisted that though
the sf@~,znt was in an illegal currency,
being an executed contract, upon principles
of public policy, it would not be disturbed
if voluntarily paid and without fraud /;
J as Tubbs being the agent, the subsequent
ratification of his act by the plaintiff Helen
Surer, the Administrative, is binding upon
her, and being the case within the princi-
piles settled by this court of executed con
tracts. The principle stated is correct
under the rulings Of this court But there
is no proof in the record she ever ratified
the acts of Jas. Tubhs as her agent, if he
can be so regarded, but she in express terms
repudiated them. She informed her father
of her disappr9bation of his acts by stating,
you have done wrong if | had been here
| should not have received it." A daugh-
ter could not have said more to an aged
and feeble father in disafirmance of his
acts. She never received the Confederate
currency from him. He, it appears, loaned
out a part and has about onehalf of the
Confederate money paid him in his posses
sion The principle is well settled, in
order to make the ratification of
he act binding upen the prin-
,ipal, he must be. freely and fully
of all the facts and circum-
stances of the matter which he has ratified
% ILL., Rep. 470-3, Todd Ed Rep. $40
There being no proof of a ratification or
rom which we can infer ratification, on
he part Of Helen Surer, the adm'rx, she is
not bound by the acts of her father, james
Tubbs, in receiving the Confederate cur
rency in the payment of these notes. In
view of all the facts presented in this rec
ord, we are satisfied the defendants, in OBJ
aiming the possession of these notes, were
guilty of fraud, and were not thereby
of their liability, and are re-
lponsible for the amount of the notes thus
obtained with the interest
hereou. The principles of this case fall
githin the rule settled by this Court of
executed contracts. The notes having
,een thus improperly obtained, the
ldm'rx, Helen Surer, is entitled to
maintain the action. The children of
Charles Surer the distributes of the
state, are not proper parties, and are
lot entitled to recover. Upon the death
If the intestate, and the administration
# Helen Surer, the right to the personal
state vested in her to sue for it, and, al
he period of time fixed by law, distribute
{ to the next of kin. And in prosecuting
uits for the recovery of the assets the dis
ributees are not proper parties. Whether
he had The right 10 loan the funds for more
han two years, il is unnecessary for us to
determine in this case. But if loaned for
longer time, the defendants could not
vail themselves Of that defence. She might
,e responsible to the distributes for a
leuastdrit, if the fund was lost. Upon
ettlement Of the estate, these notes could
ave been paid over by her to the guar
ians Of the minors. Other questions have
'een discussed in argument which it is I'M
necessary TO determine, as the questions
ettled are decisive of the case. The iudg-
nent Of the Circuit Court will be reversed,
nd, the parties having waived all excep-
ions to the proceedings, and desiring this
'onrt TO render such judgment as is author
sed by law and the facts of the case, we
re Of the opinion, therefore that Helen
urer, as the Administratrix of Charles
urer, is entitled to recover of the defend
nts the amount Of the notes with the in
crest thereon.
SHACKIEFORD Judop