Riggs v. Andrews & Co. , 8 Ala. 628 ( 1845 )

GOLDTHWAITE, J.

1. The demurrer to the declaration for the supposed variance from the indorsement on the writ, and the proposition to exclude the note from the jury, present the same question; and we think it was properly decided in the Court below. Whatever may be the authority of one partner to bind the firm after its dissolution, it is certain he may do so, if he has an express authority given for that purpose, and here the prima facie intendment is, that the note declared on and offered in evidence, is the note of Gayle & Bower. The addition after the signature of “ in liquidation,” need not be carried into the declaration, and if omitted is no variance. [Fairchild v. Grand Gulf Bank, 5 Howard Miss. 597.] Indeed, to the immediate in-dorsee suing his indorser, it makes no difference whatever, whether the previous names are false or genuine, as the indorsement is the cause of action, which, when made, is an admission of the genuineness of the previous signatures. [Free v. Hawkins, Holt, 550.]

, 2. There is nothing in the objection that the indorsement was in blank when the note went to the jury; the note vested as completely by the blank indorsement as it could by any other mode, if the plaintiffs were the owners; and the production of it by them, indorsed in this manner, is prima facie evidence of their ownership. [Chitty on Bills, 255; Chewning v. Gatewood, 5 Howard Miss. 552; 2 Miller’s Louis. 192.]

3. The charge refused by the-Court, was properly so, because the evidence was not such as is assumed by the defendant as the basis for his legal propositions. Thus it did not appear that his place of businees and employment in Mobile, had not terminated at the maturity of the bill, or that it was continued there by him until the month of May; nor that the greater portion of his time was spent in Mobile, in the exercise of the employment in which he had been engaged previous to the removal of his family. After a prima facie case of removal was made out by the evidence; as was in this case, by showing the removal and settlement of the defendant’s family at a different place from the one where they formerly had resided, it was incumbent on the defendant to show affirmatively, that his place for the transaction of business was continued at Mobile, for the matter was peculiarly , within his knowledge, and could be ma'de to appear with certainty and pi'e-cision. The Court below did not err, therefore, when it refused a charge based upon evidence which, in our judgment, had no tendency to prove, that the defendant, after the removal of his family, continued to transact his ordinary business in another place.

Judgment affirmed.