- [New York and Alabama Contracting Company v. Selma Savings Bank.] acceptors, who are primarily liable to pay it. The object of notice of dishonor of notice of the default is, that the drawer or indorser may have seasonable opportunity of protecting himself, by arranging his affairs with the drawer or acceptor, withdrawing any funds he may have transmitted for meeting the bill, or taking any other necessary or legal step for his protection. The injury which may be consequent on the failure to afford the drawer this seasonable opportunity, by notice of the dishonor, is the reason of his discharge. When the failure works him no injury, he is not discharged, for the reason ceases. A drawer who has no funds in the hands of the drawee from the drawing to the maturity of the bill, is not entitled to notice of its dishonor. Ford v. Womack, 2 Ala. 368; Tarver v. Nance, 5 Ala. 712. So, if the bill is accepted for his accommodation. Evans v. Norris, 1 Ala. 511. In these cases, the drawer on the dishonor has no right of recovery against the drawee or acceptor, and no injury ensues from the want of notice. A partnership being regarded as an entirety; each partner having all the power the partnership has; subject to all its duties and liabilities, bound to take every step for its protection which any other or all the members could conjointly take, if they so acted, where is the necessity of giving notice of the dishonor of a bill, when the dishonor is the default of one of the partners? What injury can ensue, which his knowledge of the dishonor does not afford him full opportunity of providing against, as full opportunity, as if notice was given every other individual member of the partnership? Why should notice of his own default be required? The only right of recovery, which the drawing partnership has, is equitable. No suit at law could be maintained against the defaulting acceptors or drawees; for in suits by or against a partnership, all the partners must be joined, and one person would stand in the relation of plaintiff and of defendant. The remedy in equity is rather for an accounting, than for the recovery of a specific debt. The state of accounts is supposed to be known to each partnership, and to each individual member thereof. This equitable remedy the common partner can as well pursue, if necessary for the protection of the drawing partnership, as any other partner. No possible legal injury results from the failure to give the partnership notice of the dishonor of the bill, which is already known to one partner, and whose knowledge is notice. Porthouse v. Parker, 1 Camp. 82. Any other rule seems to us to contemplate a severance of the partnership, as if its individual members had distinct rights, and antagonistic duties and liabilities, which cannot be admitted at law, in transactions involving the rights of third persons. In Jacaud v. French (12 East, 317), Jacaud was a up [Tarver v. Tankersley.] partner with Blair in one mercantile house, and with Gordon The charge to the jury as to the measure of the plaintiff's recovery worked no injury to the appellants, as the verdict does not exceed the amount for which, under the disputed facts, they are liable. We find in the record no error authorizing a reversal, and the judgment is affirmed. Tarver v. Tankersley. Citation to Administrator for Final Settlement of Accounts. 1. Judgments rendered during late war. Following the decision of the supreme court of the United States (Horn v. Lockhart, 17 Wallace, 570), this court now holds, that judgments rendered by the courts of this State during the war, “so far as they did not impair, or tend to impair, the supremacy of the national authority, or the rights of citizens under the constitution, are to be treated as valid and binding." 2. Conclusiveness of probate decree on final settlement of decedent's estate. A decree of the probate court, rendered on the final settlement of an intestate's estate 51 309 98 453 [Tarver v. Tankersley.] at the instance of the administrator, which ascertains each distributee's share of the assets remaining in the hands of the administrator, renders decrees against the administrator for the several sums thus ascertained, and recites payment of these several sums by the administrator, either to the distributees or their guardians, and that thereby the decrees are satisfied and discharged,—is final and conclusive, and may be pleaded in bar of a citation to make another settlement, although it does not order that the administrator be discharged. APPEAL from the Probate Court of Montgomery. In the matter of the estate of George W. Tarver, deceased, on a citation issued at the instance of Nancy Tarver and others, distributees of said estate, against F. M. T. Tankersley, the administrator, requiring him to appear and make a final settlement of his administration. The citation was issued on the 18th March, 1872, and was duly served; and on the day appointed, the 19th April, 1872, the administrator appeared, and, without filing any account, pleaded five pleas in bar, setting up in each a decree rendered by said probate court, on final settlement of said estate, on the 4th August, 1863, and the payment by him of the several distributive shares as thereby ascertained. The distributees demurred to these several pleas, because none of them alleged or showed that the administrator was thereby discharged, but their demurrers were overruled; and they then took issue on the pleas, and went to trial before the court. On the evidence adduced, the court found the issue in favor of the administrator, and rendered judgment accordingly, discharging him from further accounting, and imposing the costs of the proceeding on the distributees at whose instance it was instituted. The ruling of the court on the demurrers, and the final decree, to which an exception was reserved by the distributees, are now assigned as error. The said decree of August 4th, 1863, is as follows: "The application of F. M. T. Tankersley, administrator of the estate of George W. Tarver, deceased, for the allowance of his accounts and vouchers for a final settlement of said estate, coming on for a hearing; and it appearing that notice of this settlement and the day set for the hearing thereof has been given, by publication for three successive weeks in the Montgomery Advertiser, a newspaper published in said county of Montgomery, notifying all persons interested to be and appear before a court to be held on the 4th August, 1863, to show cause why said account should not be allowed; and now comes D. P. Lumpkin, guardian ad litem of all the minor heirs, and denies and contests the said account; whereupon the court proceeds to examine said account, and finds the same to be correct; and it is therefore ordered, adjudged, and decreed, that said account be allowed. And it appears from said account, thus allowed, that there is a balance due of $892.58; of [Tarver v. Tankersley.] which said amount, Mrs. Sarah Tarver, the widow, is to receive one fifth part, or $178.50; and it is therefore ordered, that said Sarah Tarver recover of said administrator said sum of $178.50. But, said Sarah Tarver having acknowledged a credit of $100, and a receipt in full for the balance, it is ordered that said judgment be entered satisfied and discharged of record. It is ordered, also, that Hampton Tarver recover of said administrator the sum of $102.01, for which execution may issue; but said Hampton Tarver, coming into open court, acknowledges a credit of $100, and a receipt in full for the balance; and it is therefore ordered, that said judgment be entered satisfied and discharged of record," &c.; and similar orders were made in the case of each distributee. ELMORE & GUNTER, for appellants. 1. The pleas nowhere showed that the administrator was discharged by the decree from further accounting, although distribution was made of all the assets in his hands. This was necessary to protect him against liability to another settlement. Harrison v. Harrison, 39 Ala. 502; Simmons v. Price, 18 Ala. 407; Matthews v. Douthitt, 27 Ala. 273. 2. The settlement set up as a bar in this case was rendered during the war, and, consequently, is not conclusive. Martin v. Hewitt, 44 Ala. 418; Moseley v. Tuthill, 45 Ala. 621; McSwean v. Faulks, 46 Ala. 610; Johnson v. Autrey, at January term, 1872. WATTS & TROY, with SAYRE & GRAVES, contra. - 1. If the settlement of August, 1863, had been made by a "loyal court, it would have been final and conclusive until reversed on error or appeal, or set aside for fraud by some competent tribunal. Watt v. Watt, 37 Ala. 543; Modawell v. Holmes, 40 Ala. 391; Horn v. Bryan, 44 Ala. 496; Chappell v. Williamson, at January term, 1873; McGehee v. Lomax, at January term, 1873. 2. That decree was, under the latest decisions of this court, at least the judgment of a foreign court, which is valid until set aside or reversed. Griffin v. Ryland, 45 Ala. 688; Foster v. Moody, at June term, 1872; McGehee v. Lomax, at January term, 1873; Bibb & Falkner v. Avery, 45 Ala. 688. The latest decisions of the supreme court of the United States, which are conclusive on this court, place such judgments on higher ground, and hold them to be valid and binding, except when they contravene some provision of the constitution or laws of the United States. Horn v. Lockhart, 17 Wallace, 570. [Bogan v. Daughdrill.] PETERS, C. J.-The facts set up in the pleas in this case are substantially the same as those which were presented by the petition in the case of Griffin v. Ryland, 45 Ála. 688. In that case, the judgments of the rebel courts were placed on the footing of foreign judgments. In a recent case before the supreme court of the United States, Justice FIELD, as the organ of the court, said: "We admit that the acts of the several states in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair, or tend to impair the supremacy of the national authority, or the rights of citizens under the constitution, are in general to be treated as valid and binding." Horn v. Lockhart, 17 Wallace, 570. The pleas show that there was a final settlement of Tankersley's administration of Tarver's estate, regularly made, in the rebel court of probate, and a distribution of the residue remaining in the hands of the administrator among the persons who were entitled to the same, and that the several distributive shares thus ascertained were fully paid. This discharged the administrator from further accounting, particularly as this proceeding does not appear to have been instituted under Ordinance No. 40 of the convention of 1867, entitled "An ordinance to allow widows, orphans, and others to review the validity of sales and settlements of estates made by guardians, trustees," &c., passed February 6, 1867. Acts 1868, pp. 187-8; 45 Ala. 688, 691. The answers to the plea do not show that any right of the appellants, under the constitution of the United States, was assailed or disregarded by the act of the rebel court set up in the pleas. In such case, the pleas were sufficient, and the demurrers were properly overruled. On the issues joined, the pleas were fully established by the proof adduced. The judgment of the court below is affirmed, with costs. Bogan v. Daughdrill. Bill in Equity for Specific Performance of Contract for Sale of Lands, and Injunction of Judgment in Ejectment. 1. Specific performance; when matter of right. The specific performance in equity of a contract in writing for the sale of real estate, if the contract is certain, fair in all its parts, founded on an adequate consideration, and capable of execution, is as much a matter of right, as daniages for its breach in a court of law. 2. Same; variance and uncertainty, in pleadings and proof, as to vendor's interest in land. - In decreeing the specific performance of a contract for the sale of lands, the court can only compel the vendor to convey his title and interest in the land, whatever that may be; consequently, vagueness and uncertainty in the pleadings and proof, or a variance between them, as to whether the vendor covenanted to convey the entire interest in the lands, or only his undivided interest, is no obstacle to a specific performance to the extent of his interest. |