bility for a collision. The controversy now pending and being litigated is with reference to the liability of .sureties under a mandate remitted from the supreme court. It could not be error for the judge to sit in this matter, nor would the statute exempt him. The rule is, therefore, as a matter of right dismissed. But the consent of the opposed party having been given, an order based upon eonsent of parties will be entered that the matters now at issue in this cause be restored to their place on the calendar, to be heard by that member of the conrt who may preside when the same may be moved on for trial.
H. & C. NEWMAN
RICHARDSON and others:
LETCHEORD v. RICHARDSON & CARY.
PARTNERf1,HIP-NEGOTtABLE INSTRUMENTS-PURCHASER WITH NOTIcm.
Where one of two partners fraudulently indorses the name of the partnership upon commercial paper in which it had no property or interest, and obtains money upon it from the indorsee for a purpose clearly outside the scope of the partnership businellS, the indorsee has no claim against the other of the copartners.
J. Ad. Rozier and V. Z. Rozier, for Newman. T. Gilmore J; Sons, for Letchford.
Renshaw and J. A. Campbell, for defendant. D. J. The facts in the first case are as follows:
George W.;Cary, one of the firm of Richardson & Cary, appliea to the plaintiffa for a loan or advance on cotton thereafter to be ahipped by hia brother, C. W. Cary, of Monticello, Alabama. The plaintiffa demand collateral aecurity. The next morning George W. Cary delivered to them as auch collateral security the promissory note upon which suit is brought, which is a note purporting to be made by C. W. Cary, to the order of Richardson & Cary, and was indorsed by George W. Cary in the name of the firm. As a matter of fact, the note was never the property of the firm of Richardson & Cary, and they never had any interest in it, nor had they any interest in the transaction in which the loan or advance was made to G. ·W. Cary.
In the case of W. H. Letchford against the same party the facts are as follows:
George W. Cary, one of the firm of Richardson & Cary, applied to the plaintiff for a loan of $1,000, to meet a draft that was drawn to make some settle-
n'tEllit ·of the debts of the old house 'of Wallace & Cary, and upon making the loan the plaintiff received the note upon which suit is brought; which is a note purporting to be drawn by S. Mims, Jr., to the order of Richardson & Cary, aud was indorsed by George W. Cary in the name of the .firm. Mims was not ,even a customer of defendant's firm, and they were under no obligation to pay the debts of Wallace & Cary, and had no interest either in the paper delivered t,o plaintiff nor'in the loan to George W. Cary.
o ' ' .\
Thes y cases are identical in principle. In both cases onepl1rtner fraudulently indorses the rt8;me of the partnership upon commercial paper, in which the partnership had no property Or interest, and obtains money upon it from the plaintiff, for a purpose manifestly not a partnership purpose. The doctrine upon which partners are held for the action of each otheris the doctrine of agency. Authority is implied whenever the act done is within the scope of the partnership business, or is, according tooutwatdcircumstances, the act of the partnership. But when. the act douels beyond the scope of the part. nership business, or is admitted not to be the act of th,e firm, then a special authority from the other partners, either expressed or implied, must be shown in order to bind'them so far as first parties are concerned. These loans were both made fOr a: purpose, not a partnership one. In the one case it was a loan to the brother of George W. Cary, and in the oth8r, a loan for the purpose of paying a debt of another firm. But it is urged that when one of two innocent parties must suffer, that party who has hel,d out to the other a third party as having an authority he did not possess, must bear the'burden or loss. This it> true. But the limit of the application is reached when the purpose or object of the act done is unquestionably not that of the, firm. The reason of the limitation is that when a partner attempts to use the firm name for So purpose admitted to be outside of a partnership transaction, the party with whom he deals is fairly affected with notice, and put upon his guard, and, if he fails to make suitable inquiry, occupies in law the same attitude as does any other person who deals with an agent whom he knew, or ought to have known, was exceeding his authority. The laws upon the subject are well nigh innumerable, but the American authorities, with great unanimity, establish the doctrine that, so far as first parties are concerned, the firm name cannot be used by one member for a purpose confessedly distinct from the firm's business, so as to bind the other members, without showing special power. Judgment must therefore be given in favor of the defendant Rich. ardson and against the defendant Cary.
TUCKER V. DUNCA.N.
(Oircuit Vow't, 8.
November Term, 1881.)
RAn.ROAD CROSSINGS-RECIPROCAL DUTIES OF TRAVELERB AND THE UAn.ROAD ()OMPANY. ' "
When a croBsing is dangerous, the duty is imposed upon those engaged in conducting the engine and trains upon the road, .and also upon those desiring to make the crossing, to use .everY reasonable precaution to avoid a ,c91Iision; and the necessity is increased in proportion to the danger. This duty is'required equally of both parties. 2.BAitfE-DUTY OP TRA.VBLER. Where one attempts to,drive his team over a railroad crossing on a level with the highway witli knowledge of its dangerous condition i that a warehouse formed an obstruction to the sight sound of a train coming from one direction; that it was the time for making up a trainaud ,that the locomotive must pass the crossing to do so-he must both look Rnd listen lor the approach of the locomotive, and, if need be, stop for that purpose. 8.. RAn.ROAD EMPLOYEB. . Railroad employes are as worthy of belief as other agents.'
At Law. Humphries tI: Sykes and Wiley P. Harris, for petitioner. E. L. Russell, Peter Hamilton, J.M. Allen. and L. Brame, for defendant. HILL, D. J. This is a made by the said Tucker, in which 1880, he was with his he alleges that on the eleventh ,day of wagon, drll.wn by one horse, crossing the Columbus branch of the Mobile & Ohio Railroad, on St. John street, in the city of Columbus, when, without any carelessness or default upon his part, but by the alone of the employes operating carelessness and improper the engine and train of said receiver, upon said railroad, his \Vagon was run against aud thrown over, by means of which he was thrown from his wagon and received sundry dangerous and severe wounds, endangering his life, greatly disfiguring him, and causing' him great bodily pain, for which he claims $25,000 damages as compensation. To the complaint the defendant answers that the injuries complained of were caused by the carelessness and reckless conduct of the petitioner alone, and not by the carelessness or want of skill or misconduct upon the part of his employes, as alleged in the petition. Upon the issue thus made a large volume of evidence has been taken and submitted to the court, upon which exhaustive comment has been made by the distinguished counsel on both sides, all the sole view of arrivof which has been carefully considered, to whether or not, under the testimony ing at a correct conqlusion