McDougald vs. the Central Bank.

trial, the defendant produced an affidavit to postpone it, in which it was stated that he had one or two material witnesses, who had been subpoenaed but did not attend, and without whose testimony he could not safely proceed to trial, or be able to substantiate the articles in his account. By reference to his account it was found to consist of various items, such as torts, trespasses, and other matters sounding in damages, and which were not properly pleadable; and others for money had and received, which were admissible; and therefore the court held, that unless the defendant would discriminate and point out what part of his account he expected to prove by his absent witnesses, he was not entitled to have his cause postponed.

And I cite this case to show, that the Court will look into the pleadings to see whether the testimony would be available if present.

So in Harris vs. Harris, 2 Leigh 584. Cabell, J. says—“ The first main question is, whether the evidence expected of Taylor, (the absent witness,) as stated by the defendant, was material to his defence? To decide this question, it is necessary to compare the evidence with the facts stated in the plea, for it is to those the evidence must relate." The learned judge then proceeds to analyze the plea, and by a reference to the proof he concludes that his testimony was not material, and consequently his absence afforded no ground for the continuance of the cause.

By an examination of the special plea, it will be found that the only averment in it is, that Watson, to whom this bill was transferred, was not an innocent purchaser for a valuable consideration, and without knowledge or notice of the insolvency of the Planters & Mechanics' Bank. Now all this may be true, and still the defendant would not be protected from liability. The Central Bank was the holder of this paper, by a series of successive blank indorsements, from the payee. The declaration alleges that these several transfers were made at the time the bill was drawn. The plaintiff therefore was presumptively an innocent holder of this bill, and the testimony, to be material, should have controverted this fact ; and this it could not do, not having been put in issue by the plea. It is just as necessary that there should be the proper averments in the pleadings, to authorize the admission of the testimony, as that the proof when offered should correspond with the allegations. And the defence, it occurs to us, was fatally defective in this particular. Watson, the immediate indorsee of the Planters

McDougald vs. the Central Bank.

and Mechanics' Bank, might have been, and from his position as president probably was, cognizant of its condition. Still the Central Bank, taking it before maturity, could not be affected without notice. And even if both Watson and the Central Bank had knowledge, yet as the latter derived its title through another intermediate transfer by the Columbus Bank-if the Columbus Bank was without notice, the Central Bank would be entitled to recover, notwithstanding notice on its part as well as that of Watson. Story on Bills of Exchange, sec. 188; 2 Atk. 182; 2 Tenn. R. 71; 1 Camp. 383.

As to the variance between the declaration and proof, or the [3.] objection to the instrument upon the ground that it is not signed in terms of the charter, we have this to say in addition to what has already been heretofore urged. It is true that the act prescribes the mode in which "the bills obligatory and of credit, notes and other contracts, on behalf of said corporation," (Insurance Bank of Columbus,) shall be executed, in order to be binding on said company; i. e. "that the same be signed by the president and countersigned by the cashier of said corporation." Prince, 105. What follows if this is not done? "The funds of said corporation shall, in no case, be held liable for any contract or engagement whatever, unless the same be so signed and countersigned as aforesaid. ib. But here is no attempt to charge the funds of the Insurance Bank of Columbus. It is a suit against Daniel McDougald, on his indorsement of a bill which he drew as president of said bank, in his own favour, and he now seeks to avoid his liability, upon the ground, that he had no authority under the charter to make such a contract. I apprehend that he is bound upon his indorsement, whether the bank be or not; and, at any rate, the objection does not lie in his mouth. And this is a sufficient answer to the exception.

It will be time enough to give a construction to this clause in the charter, when an attempt shall be made to bind the funds of the corporation or the property of the stockholders, by these apparently irregular transactions.

Upon the question of notice, our confidence in the correct- [4.] ness of the interpretation which we have heretofore put upon the 26th section of the act establishing the Central Bank, remains unshaken. It is in these words; "All suits commenced by said corporation upon any note, bill, bond, or obligation, upon which there shall be any indorser or indorsers, the maker or makers,

Napier and others vs. Howard.

together with the indorser or indorsers, or their representatives, may be embraced and sued in the same action, and no proof of notice, demand or protest, shall be required on any trial, to authorize a recovery." Prince, 75.

To have required notice on the trial of this suit in this bill, would have been to have disregarded and set at naught this plain and positive provision of the charter.

[5.] If the defendant, in this or any other action, is entitled, under the laws of the land, to his discharge for want of notice, he can plead it by way of defence; but it is not a condition precedent to entitle the bank to recover, as proof of demand and notice was by the law merchant. And why should it be thought a hardship, or strange thing, for the statute to dispense with this usage, in favour of an institution owned exclusively by the people of the State, when the law has extended the same dispensation to all other holders of promissory notes, and other instruments, except such as are intended to be negotiated at some chartered bank, or deposited there for collection? Prince 462. Is it not just and right that this agent of the public should be put upon the same footing with the most favoured class of private creditors? At any rate, it was for the legislature to judge of this; and having declared its will, in the most unambiguous manner, and there being no constitutional impediment in the way, we have nothing to do but obey its mandate. Judgment affirmed.

No. 32.-JOHN H. HOWARD, plaintiff in error vs. Leroy Napier, and others, defendants in error.

No. 32.-LEROY NAPIER, and others, plaintiffs in error vs. JoHN H. HOWARD, defendant in error.

[1.] Where a testator, by his will bequeaths certain property to trustees, in trust for his son, and his wife, and his four children, then living, and to any child or children which the testator's said son may hereafter have born, for the use of, support

Napier and others vs. Howard.

and maintenance of testator's said son and his family; and for the support, education and settlement of the said children of testator's son; held, that it was the intention of testator to include after-børn children of his son, as well as those living at the testator's death. Held also, that testator's son, and his wife, were entitled to the use and benefit of two shares of the property bequeathed, for their maintenance and support; and that each of the children of testator's son was entitled to one share of the property as a settlement, on arriving at the age of twenty-one years, or when the females should marry, liable to refund the proportion of their respective shares, in the event there should be after-born children. [2.] Where a judgment creditor comes into a court of equity, and asks its assistance to have appropriated to the payment of his debt against the husband, property to which the husband may be entitled in right of his wife, under the will of her grandfather, in the hands of trustees appointed by the testator; adequate provision must first be made for the support and maintenance of the wife and children, if any. [3.] What will be considered adequate provision for that purpose, must depend on the circumstances of the case and the condition of the parties; the court ought to be liberal, and may appropriate the whole, or part of the property, for the benefit of the wife and children, as it may deem equitable and just.

-In Equity. From Stewart Superior Court. April Term, 1847. Tried before Judge ALEXANDER.

These cases are predicated upon the same record, in which each of the parties filed bills of exceptions to decisions, on points arising in the progress of the trial, affecting their interests. **

Thomas Napier, of the city of Macon, made and appended to his last will the following codicil; "Georgia, Bibb County-Whereas I, Thomas Napier, of the city of Macon, in the county and State aforesaid, have, by my last will and testament in writing, hereupon duly executed, and remaining up to this present time unrevoked and unaltered, made certain bequests to and in favour of my sop, Thomas T. Napier. Now I, the said Thomas Napier, being de sirous of altering my will in respect to the bequests previously therein contained, to and in favour of my said son, Thomas T. Napier, do therefore make this present writing, which I will and direct, to be annexed as a codicil to my said will, and taken as part thereof; and I do hereby revoke all the bequests and provisions in said will, appertaining to and in favour of my said son, Thomas T, Napier, and in relation to so much of my property and estate, real and personal, as is embraced in said bequests and provisions, and as would by the same, if unrevoked, pass to my son, the said Thomas T. I do hereby give, bequeath, and devise, said property and estate, and all and every part thereof, whether real or personal, to my sons Leroy Napier, and Skelton Napier, and my son in law, Nathan C. Munroe, as trustees, and in trust for

Napier and others rs. Howard.

my said son Thomas T., his wife, and his children Leroy Wiley Napier, Sarah C. Napier, Manfredonia M. Napier, and Thomas C. Napier, and any child or children of my said son Thomas T. Napier, that may hereafter be born; the said trustees to be vested with the legal estate, and full control of said property, and receive the rents, issues and profits thereof, and to apply the same to the use of, and for the support and maintenance of, my said son Thomas T. and his family, and to the support, education, and settlement of the aforementioned children of my said son, Thomas T. Napier; it being my will and desire that all the property that would have fallen to my said son Thomas T., under the aforementioned revoked bequests and provisions of said last will, should, under the codicil, vest in said trustees; in trust, and for the uses as aforesaid, for ever.

And I do hereby ratify and confirm my aforementioned last will and testament, in every thing, except where the same is hereby revoked.

In witness whereof, &c."

James L. De Lanney intermarried with the said Sarah C. Napier, one of the daughters of the said Thomas T. Napier, and who was one of the cestuis que trust under said codicil.

After the death of said testator Thomas Napier, the trustees named in the codicil received the bequests and devises so given in trust as aforesaid, and, as such trustees, lent to De Lanney divers sums of money, the payment of which was secured by him by mortgages. The first loan, of two thousand dollars, was made the 7th July, 1842, which was secured by mortgage of that date upon several negroes therein named. The second loan made on the 20th day of October, 1843, was $2,000, also secured by mortgage of that date, upon several negroes. These mortgages were given to said trustees, in their character as trustees, for the said loans made by them as such trustees.

It appears that, after the first mortgage, the Bank of Milledgeville, recovered in Stewart Superior Court, a judgment against said De Lanney for about seven thousand dollars, as indorser upon a note, upon which said Howard was a subsequent indorser, and upon which a judgment was recovered also against Howard, in Muscogee Superior Court. The recovery against De Lanney, in favour of the Bank of Milledgeville, was in the fall term of Stewart Superior Court, 1843, upon which judgment De Lanney has paid fifty-three hundred dollars. At the fall term, 1842, of said