6 Ala. 244 | Ala. | 1844
The Bank being ignorant of the condition on which the note was executed by the surety, is not affected by it, but we think there is no sufficient evidence in the record, that it has title in the note. The fact of possession, is, in general, sufficient evidence of ownership prima facie, but here, it is showm that the Bank refused to discount the note, unless another surety was obtained to it, which was not done. Doubtless the directory may afterwards have altered their determination, and have discounted the note in its then condition, but there is no proof that this was done, and it would be going rather too far to infer this from the mere fact of putting it in suit.
It was urged in argument, that the surety was not liable, unless the principal received the money on the note. This position cannot be sustained. The execution of the note by the surety, was prima facie an authority to the principal to use it, either in the extinguishment of an old debt due the Bank, or for the purpose of obtaining money from the Bank. Nor was it necessary after the rejection of the note by the Bank in the first instance, that it should be again presented by the principal for discount.— The leaving of the note with the officers of the Bank after its first rejection was a repetition of the proposition, and authorized the Bank at any subsequent time, to accept the note in its then condition, and if the principal was indebted to the Bank, to cany the amount to his credit, in extinction of the old indebtedness, and proof that the old debt was thus extinguished, would be evidence prima facie, of the acceptance of the note by the Bank.
Let the judgement be reversed, and the cause remanded.