Burton vs. Wynne. dismissed. It was in proof, and not contradicted, that one of the sureties was not of counsel in the garnishment, though he had been in the original common law suit. But independently of this fact, we hold that section 3268 of the Code is directory merely. It does not declare that the process shall be void and the garnishment be dismissed if the attorney sign as security; and paragraph 6 of section 4 of the Code enacts distinctly and clearly that "a substantial compliance with any requisition of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment." Construing the two sections together, we think it would have been improper to dismiss the attachment or garnishment. Besides, the bond could have been amended, and the result shows that no harm was done. 3. In respect to the charge of the court we think it too late to question its correctness in this court. The judgment. and ruling in 38 Georgia Reports, 17, covers this case; and the principle there virtually decided, that a garnishee is not protected if he pays to the purchaser of an overdue note, but is protected if he pays to a purchaser of a note not due after he is served with the summons, seems to us sound. The assignee of the note after due, takes it with his eyes open, with notice that something is wrong about the note, and all equities may be invoked against him that could have been invoked against the original payee. Among these equities is that of a vigilant plaintiff in garnishment who attaches the note by summons of garnishment before it is traded; and the debtor who pays it after the summons is served, pays with his eyes open and at his peril. 4. As the garnishee here can protect himself only upon the title at the time of summons of the holder of the note, to whom he paid after the service and notice to him, the conduct of the holder, including letters from him about the note, is admissible against the garnishee. Judgment affirmed. VOL. LV. 40. 55 618 55 663 69 826 69 827 Pannell & Jones vs. Phillips & Company. PANNELL & JONES, plaintiffs in error, vs. W. R. PHILLIPS I. In a suit against the drawers of a domestic bill of exchange, not made for the purpose of negotiation, nor intended to be negotiated, at any chartered bank, it is unnecessary to show protest for non-payment, and notice thereof. 2. Where a draft is drawn upon a firm, and one of the members thereof accepts the same in his individual name, the partnership is bound. Bills of exchange. Protest. Acceptance. Partnership. Before Judge HOPKINS. DeKalb Superior Court. March Term, 1875. Reported in the decision. CANDLER & THOMSON, for plaintiffs in error. L. J. WINN, for defendants. WARNER, Chief Justice. The plaintiffs brought an action against the defendants on two drafts, one of which is of the following tenor and effect: “ATLANTA, 31st August, 1871. "A. Landsburgh & Company, at twenty days sight, pay to William R. Phillips jr., & Company, or bearer, seventy-five dollars, and charge to account of PANNELL & JONES." The other draft is an exact copy of the above, except in amount, which is only for $50 18. Both drafts had the following written acceptance on the face thereof: On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiffs. The defendants made a motion for a new trial, on the ground that the verdict was contrary to law, contrary to the evidence, and for alleged error in the charge of the court; which motion was overruled, and the defendants excepted. 1. It appears from the evidence in the record that at the Pannell & Jones vs. Phillips & Company. time Pannell & Jones drew the two drafts sued on in favor of the plaintiffs, they held a note on A. Landsburgh & Company, on whom the drafts were drawn, for $500 00, which was placed in the hands of the plaintiffs to be presented to A. Landsburgh & Company, when the two drafts were presented for acceptance and was so presented, and the amount of the two drafts credited thereon, which note so credited, with the amount of the two drafts, was afterwards returned by the plaintiffs to the defendants. The two drafts were given to the plaintiffs for goods purchased of them by the defendants. There is evidence in the record going to show that A. Landsburgh & Company were insolvent at the time the two drafts became due. The court charged the jury, amongst other things, "that upon the introduction in evidence of the drafts made by the defendants, in the absence of any defense, the plaintiffs would be entitled to recover; that protest for nonpayment of the drafts by the acceptors, and notice of the same to the drawers, was not necessary to entitle the plaintiffs to recover; that the defendants, the drawers of the drafts, are liable upon the same, unless it is shown by the evidence that they had been injured by the failure of the holders to give notice to them of the non-payment of the drafts by the acceptors." These two drafts were domestic inland bills of exchange, drawn in this state upon parties in this state, and payable here, and were not payable at any chartered bank, and were not made for the purpose of negotiation nor intended to be negotiated, as appears on the face thereof, at any chartered bank. Since the passage of the act of 1826, Code, section 2781, notice of the non-acceptance or of the non-payment of this class of paper, has not been required in this state to charge the indorser or drawer. It is true, the word "drawer" is not in the act of 1826, but if the drafts had been drawn by the defendants, payable to their own order, and they had indorsed the same, they would not have been entitled to notice as such indorsers. Why should they be entitled to notice as drawers and not entitled to notice as indorsers under the statute? The true intent and meaning of the act of 1826 was Sims vs. Lester et al. to dispense with both protest and notice in regard to the class of paper contained in the record, including the drawers as well as the indorsers thereof, and such is believed to have been the interpretation and construction of that act by the courts of this state, including this court. We find no error in the charge of the court in relation to this point in the case. 2. The objection that the acceptance of the drafts drawn on A. Landsburgh & Company, was signed by A. Landsburgh alone, was not well taken, especially when the amount of the drafts was credited on the note of A. Landsburgh & Company. A partner who accepts a bill drawn on the firm, in his own name, binds the firm: 1 Parsons on Notes and Bills, 123; Mason vs. Rumsey, 1 Campbell's Reports, 384. The two drafts in this case were drawn by the defendants for goods delivered by the plaintiffs to them, and although the drafts drawn by them for the goods were accepted by Landsburgh & Company, the same have not been paid, and there is sufficient evidence in the record to have authorized the jury to find, that at the time the accepted drafts became due, that Landsburgh & Company were insolvent, therefore, the verdict was not contrary to law and the evidence, and there was no error in overruling the motion for a new trial. Let the judgment of the court below be affirmed. JAMES S. SIMS, plaintiff in error, vs. GEORGE H. LESTER et al., administrators, defendants in error. The failure of the mortgagee of an older mortgage to apply, to that mortgage, before its foreclosure, a particular payment according to directions given by the mortgagor at the time of the payment, is simply a breach of contract; and the right of action on such breach is in the mortgagor, or if he be dead, in his legal representatives, and not in the holder of a junior mortgage on the same property, though it be averred that if the payment had been applied according to instructions, the junior mortgage would have received Something from the mortgaged property and that the mortgagor's estate is insolvent. There is no privity of contract between the junior and senior mortgagees so as to authorize the former to sue the latter directly. Suit Sims vs. Lester et al. must be brought by the legal representative of the mortgagor on the breach of his contract, and then the recovery will be assets for distribution according to the statute of distributions, and the junior mortgagees may or may not receive something on this mortgage according to the priorities prescribed by that statute. Contracts. Mortgage. Actions. Before Judge POTTLE. Oglethorpe Superior Court. October Term, 1875. Reported in the opinion. W. G. JOHNSON; JOHN C. REED; SAMUEL LUMPKIN; J. T. OLIVE, for plaintiff in error. R. TOOMBS; J. D. MATHEWS, for defendants. JACKSON, Judge. The question made in this case arose upon demurrer to the declaration of the plaintiff. He alleged, in substance, that Deupree, since deceased, held an older mortgage than one held by plaintiff on certain property of one Branner; that Branner made a payment of certain cotton or its proceeds to Deupree and instructed Deupree to credit such proceeds on that mortgage; that Deupree credited certain judgments he held against Branner with these proceeds, contrary to Branner's instruction; that if he had obeyed the instructions, Deupree's mortgage would have been satisfied out of less than the whole mortgaged property, and that plaintiff's junior mortgage would thereby have received the amount of the sum so misapplied; that Branner is dead and insolvent, and plaintiff is by the misapplication of this credit damaged that amount. The court sustained the demurrer and dismissed plaintiff's suit, and this is the error assigned. We think the court did right. There is no privity between Sims and Deupree on this contract. The contract is between Branner and Deupree; the instructions were given by Branner, and the right to instruct was in him; the breach of the contract is between them. Hence the right of action is in the legal representatives of Branner; and if they should recover |