text:
    The Adm’r of Henry A. Ellis vs. The Adm’r of James Taylor.

      Error from. Mobile Circuit Court — Before the Hon.. - P. T. Harris.
    Where a man in whose favor a bill of exchange Í3 drawn, which has been accepted, assigns all his effects to a trustee for the use of his creditors, and subsequently assigns all his effects to another person to secure him against certain liabilities, and brings suit in his own name for the use of the last person to whom liis effects were assigned (the bill being indorsed in blank,) the acceptor cannot successfully defend himself against such suit, on the ground of the assignment of the plaintiff’s effects to the trustee: nor will the case be varied, whether the assignment so-made was fraudulent or valid. Neither will the defence be aided by the fact, that tho bill of oxchange was not in the possession of the plaintiff, but of another person, and was brought into court by- means of a suhpmna duces tecum.

    This was an action of assumpsit, brought by Daniel Stowe, trading under the firm of Stowe, Ellis & Co. to the use of H¡ A. Ellis, against James Taylor. The declaration charges the defendant as being indebted to the plaintiff, for goods, and merchandise, sold and delivered, money had and received to the plaintiff’s use, and for, money lent and advanced, and paid out and expended to the use of the defendant, to the amount of five thousand dollars. The defendant pleaded, in short, non-assumpsit, payment, set off, payment by garnishments, and a garnishment. On the issue, the jury found for the defendant.
    It appears by the bill of exceptions, that the plaintiff’s counsel gave in evidence, a bill of exchange drawn by Parr sons and Taylor on the defendant, and accepted1 by him, dated April 2, 1827, and payable the 1st day of January thereafter, for $2479 14, in favor of and indorsed “ Stowe, Ellis & Co.which bill of exchange was produced in court by means of a subpoena duces tecum, served on one Robert E. Center. It also appears that the plaintiff gave in evidence the answer of the defendant to a garnishment, in which his indebtedness on said bill of exchange is admitted, and that he had previous to that time received notice from said H. A. Ellis, and likewise from James T. Franklin, each requiring payment of said bill to himseíf: it being also proved by plaintiff, that Stowe,' at the time, traded individually, under the name of Stowe, Ellis & Co. The bill of exceptions further shows, that the plaintiff gave in evidence the deed of assignment from Stowe to Ellis, a copy of which is annexed to the record, by • which Stowe, (to secure Ellis against his liability to pay certain debts which Stowe had agreed to pay) assigned to said .. Ellis all the debts due or to become due to the firm of Stowe, Ellis & Co. whether those debts accrued while Ellis was a partner, or while Stowe canned on the business by himself, which deed is dated September 17, 1829. It also shows, that the defendant produced in evidence a deed of assignment from Stowe to J. T. Franklin*, dated 14th April, 1827, by which the former assigned all his property, effects and credits, to the latter, in trust, for, the payment of certain creditors. The bill of exceptions further shows, that the plaintiff’s counsel moved the court to instruct the jury, that the assignment from Stowe to Franklin, was fraudulent and void, and could not disturb the assignment to Ellis, by virtue of which he had a right to institute and maintain his suit in the name of Stowe, and that he was entitled to recover the amount of the said bill of exchange from the defendant; which instructions the court refused to give, but instructed the jury that the deed of assignment from Stowe to Franklin, though fraudulent and Void against creditors, was good against Stowe, and those claiming under him, and rendered his subsequent attempt to make an assignment void and inopera, tive ; and that for this reason a verdict could not be rendered against the defendant.
    The plaintiff’s counsel excepted to this opinion of the court below; and, in'this court, has assigned the same as error;
    Hale, for Plaintiff in error—
    The point involved in this case is limited to a single question. Daniel Stowe made an assignment of his property to Franklin, which assignment this court has pronounced to be fraudulent, and therefore null and void. Subsequent to the execution of this instrument, H. Ellis, satisfied that it was null and void, received from Stowe an assignment of various effects, among which was, the note on which this action was founded. The note, and the two assignments, were given in evidence. Under this evidence, the counsel for Taylor maintained, that, however fraudulent the assignment from Stowe to Franklin might be, Stowe was bound by it, and that Ellis, his assignee, was bound by it also; and this opinion was echoed by the court; and to this opinion a bill of exceptions was taken.
    The principle is admitted, that the party to a fraudulent contract, cannot take advantage of the fraud. But it is a principle equally plain, that where a man makes a fraudulent conveyance, and afterwards conveys the same property to a bona fide purchaser, the latter is protected by law. If it were not so, the consequences would be most ruinous. SupPose a merchant makes a conveyance of his goods, which is construed to be fraudulent (however innocent in reality he may have been in making it) what would afterwards be his situation, and the situation of all the world in regard to him ? He cannot sell a piece of broad cloth, nor can any one buy it of him ; because although the assignment was void, it is binding on him, and on all who may purchase from h‘m. The case is so plain, I will not dwell on it. That a purchaser for a valid consideration can hold property that has been previously fraudulently conveyed, is a position that is no where, in the books, called in question.
    I have not found any case exactly similar to the present; but the-principle on which it depends, is to be found every where. Roberts on Frauds, may be referred to. The principle here contended for, is impliedly contained in almost every case in it: and if the principle be not sound, half the eases there recited, are not law..
    Goldthwaite, contra.

    The case presents a different aspect in the gentleman’s statement, from that which it assumes upon an examination of the bill of exceptions. The action was not brought by Ellis upon the note which has been spoken of; but it was •brought by Stowe, for the use of Ellis, for money had and re- ' eeived. The note or bill was not in the possession of Ellis, •but was in the hands of a man by the name, of Center, and .was Only brought into court by means of a subpoena duces tecum. IJpon this state of the case, was not the court right •in charging the jury that the assignment to Franklin was good against Stowe; and that neither Stowe, nor those claiming under .him, could take advanfage of its invalidity.
    Another question was, had this bill ever passed to Ellis, in such a manner that -he could entitle himself to the amount of it in an action of this kind ? ■ Say that I am the holder of a piece of paper regularly indorsed to me, can A and B, in an action between them litigate and determine on my rights, by bringing me into court with the instrument, on a subpoena duces tecum'?' This paper was indorsed in blank, and was in the possession of Center, who claimed it as his own. It had never been indorsed to Ellis, nor was it in his possession.' Our statute provides, that notos and bonds can pass by assignment : and according to the decisions of this court, I contend that they can pass in no other manner. No such transfer had been made to Ellis. I do not-contend that an equitable interest may not pass by general assignment ; but the assignee does not there by become the legal holder. Suit must be brought by the person making such assignment, and he must be subject to all the rules to which he would be, if no such assignment had been made. Then if brought by Stowe, can he stultify himself, and say Iris o'wn act is fraudulent í I can. find no case applicable to the present, except the general principles of law : it is admitted o,n all hands that a man cannot set aside liisown deed. Admit that the assignment to Franklin was void, it is clear that Giowe cannot take advantage of that fact: and it does not appear that it was necessary for the court to decide this point. If Ellis had an equitable claim, he was not without his remedy. He might have filed his bill in equity, to set aside the first assignment j-but he cannot divest Center of his right without making him party to the suit, merely by means of the subpoena daces tecum.

    It does not appear but Center was a bona fide creditor cf Stowe. Suppose this to have been the case, and yet that he came into possession of the note by the assignment, the fraudulence of the assignment would not impair his right; but he would be remitted back to his rightful consideration.
    As the bill, in this case, was indorsed in blank, and was in possesssion of Center, if it had been obtained surreptiously, and Center had conje into possession of it without a knowledge of the fraud, he would not be prejudiced by it. If the interest of Center was to be attacked, and if it could have been done in this form of action, it ought, at least, to have. been shown, that he came by the paper fraudulently. Had ^ie Possession been in the plaintiff, it might have altered the case ; but here, it is clear that the legal interest is in Center; and it is not pretended that he did not come by it in a bona fide manner.
    Would not a payment made to a bona fide creditor, after the first assignment, and before the second, be good ? And it does not appear that Center was not a bona fide creditor. He cannot be deprived of his interest without its being shown that he has participated in the fraud. ■
    This action was commenced on the 10th of April, 1830. The assignment to Franklin was on the 14th of April, 1827 ; and the assignment to Ellis, on the 17th of September, 1829. During all this time, from the 14th of April, 1827, to the 17th of September, 1829, this paper may have been floating about the community. If so, how are the rights of an individual guarded, if he cannot purchase it with safety ? This paper passes by delivery; and as it is known that Stowe could not stultify himself, legal counsel would not hesitate to advise that the paper might be safely purchased.
    Suppose there had been a trust in the assignment to Frank, lin, for the payment of the creditors of Stowe, and a number of them had been paid, could these creditors be compelled to refund, thirty months afterwards, on the ground of the assignment being fraudulent, although their claims were bona fide ? If thirty months afterwards, why not three years, or ten years afterwards ? And no distinction can be drawn here between a payment and a transfer. It matters not whether Stowe’s creditors are paid in money or in notes, or bills of exchange. If the gentleman can show any difference in principle, I should be glad to be enlightened on the subject,, Whatever fraud there may have been in the assignment to Franklin, no bona fide transfer can be reached.
    Hale, in reply.
    The court doubtless recollects the maxim of a distinguish- * I - ed jurist, that a good lawyer ought to make a good argument on a good case, or if his case be a bad one, he should make a good case and argue that. The gentleman has conformed to the latter part of the rule. However good the gentleman has made his case, he has not argued the case before the court. If the statements in the bill of exceptions were to be taken as a special verdict, and if it were the business of this court to decide upon it as such, the views of the gentleman might possess some plausibility; but this is not the case. It matters little, how much or how little of the testimony is put in the bill of exceptions, only as it relates to the points reserved ; the rest can only be regarded as explanatory. I stated at first, that there was but one point in the case. I say so still. And that is this : Was the charge of the court right or wrong ? If the statements in the bill of exceptions had been viewed as a special verdict, we would have put down our testimony ; but this is not the object of a bill of exceptions. The gentleman has found great fault with the way this action has been brought. It had been brought in Stowe’s name, for the use of Ellis, because the true attitude of the party was thus shown. If it had been brought in the name of Stowe simply, his creditors might have garnisheed the defendant, or Stowe might have claimed the money recovered.
    The rights of Center have nothing to do with this case. I care not whether Center recover against Taylor or not. I do-not say that this action is a bar : it is sufficient that Taylor is bound to pay us. Whether the note was in our possession or in that of Center, has nothing to do with the point reservj ed. I tell the court, and I never intentionally deceived a court in my life, that the only point is, whether the instructions given, by the Judge to the jury-, were right or wrong, and it is no matter what hypothetical case, the gentleman, in his ingenuity, may present.. But if he will consult Roberts on Frauds, 367, he may perhaps find some doctrine to meet his imaginary case.

      The court will perceive from this brief view of the casé; t!*mt unnecessary to pass on the points presented by the ingenuity of the gentleman : not that I have any doubt of being able to meet them. They will come up again, as the gentleman well knows, in another case, when they will be met. But sufficient for the day is the labor thereof. It is not necessary to notice the point about the possession of the note. No question was brought before this court on that subject. Suppose it had been put down that the note was given for usury, gambling, or horse racing, that would not be the point: that was not what the court gave the charge upon. This court knows it is not trying a special verdict. The question is on the point reserved. Was the charge of the Judge law or not law ?
   By Mr. Justice Thornton :

This was an action of assumpsit, containing the usual counts, for goods, wares, and merchandize, for money had and received, .&e. During the progress of the trial, a bill of exceptions was signed by the court, which contains the charge given to the jury, assigned for error.

The res It of the charge is, that the plaintiff in the action could not recover ; but it is so connected with the facts, as to show explicitly, upon what grounds it was given : and as the hiil of exceptions does not purport to set forth all the evidence with was introduced, we must consider the charge with reference only to the facts on which it was predicated.

The bill of exceptions shows, that a bill of exchange was « introduced as evidence by the plaintiff, which was drawn in favor of the said plaintiff, indorsed in blank by him, and ac~' • cepted by the defendant; that subsequent to the acceptance, an assignment by deed of trust, for the benefit of his creditors, had been .executéd by the plaintiff, Stowe, to one Franklin ; whose interest, by virtue of said deed, had been transferred, or was understood by said Franklin, Center and Henry Hitchcock, to be transferred to the said Center: that subsequent to the said transfer to Franklin by Stowe, and by him to Center, an assignment of his personal effects was executed by Stowe to H. Ellis, for whose use this action is brought. ■ It appears also, that by a subpoena duces tecum, served upon Center, the said bill of exchange was produced in court. The Judge instructed or charged, “that the deed of assignment from Stowe to Franklin, though fraudulent and void as against creditors, wras good against Stowe, and those claiming under him, and rendered his subsequent attempt to make an assignment void, and inoperative; and that from this consideration, a verdict could not be rendered against the defendant. That, this charge is erroneous, I have no doubt. The jury are told that a verdict could not be rendered for the plaintiff, from a consideration of facts, which I deem wholly irrelevant to the true merits of the case, as far as the bill of exchange constitutes a part of it. The bill is drawn in favor of the plaintiff, Stowe, who sues for the use of Ellis, and is permitted to go to the jury without any objection, either to the-blank indorsement, which could have been stricken out, as I consider the law upon that subject, or on any other ground. The existence of those several assignments of his property by Stowe, whether fraudulent or not, could not defeat this recovery — they are wholly res inter alias acta. They do not constitute a legal defence- — nor do they constitute legal premises • of the conclusion drawn from them, and given in charge to the jury. The acceptor of a bill of exchange, is as the maker of a promissory note ; and it has been frequently decided, that he cannot in this way, question the title of an assignee, who is plaintiff; much less could he defend, by showing that the cestui que use, in an action by the payee, is not entitled to the fund. How the supposed interest between Center or Franklin, and the cestui que use, may be determined, if it ever arise, is a matter not at all affecting the liability of the defendant; and an imaginary contest between them, cannot furnish a defence to this action.

Let the judgment be reversed, and the cause remanded.


source: Caselaw Access Project

author: By Mr. Chief Justice Saffold :

license: Public Domain

text:
    Organ Tatum vs. Benjamin Young.

      Error from the Circuit Court of Autauga County — Before the Hon. P. T. Harris.
    When a cause has been tried by an impartial jury, although the Judge, on the application of the plaintiff, and against the consent of the defendant, may have rejected a juror for a cause, somewhat questionable as to its sufficiency, such rejection of the juror is not matter available in error.
    The registration of a deed in another state, unless it appear that such registration was authorised by the laws of that state, implies notice to no one.
    The certificates authenticating a recorded instrument from another state, do not constitute evidence of the laws of property, or of registration, in such state.
    In this cause, which was an action of detinue for a slave, brought by Young against Tatum,'the plaintiff challenged a juror for cause. The juror being sworn, stated, that he had been employed by the defendant, Tatum, to go to Selma after the slave in question; that he was instructed to take him at Young’s, or wherever he might be found; that he, in company with another, found him at a grog shop, in whose possession he did not know, and brought him to Tatum, who paid him for the service the sum of fifty dollars. The defendant objected to the exclusion of the juror, but he was set aside by the court.
    The slave sued for, among others, had been conveyed by Thomas Tatum to his son James, and his other children, by deed of gift, in 1816, in the state of Georgia. It had been recorded within two days of its date, and was certified by the clerk of the court, with the certificate of the presiding Judge.

      Tbe defendant wlio claimed under this deed, asked the court to instruct the jury, that if the plaintiff was a resident of Georgia at the time of the execution of said deed, and if said deed was recorded agreeably to the laws of Georgia, it was notice to the plaintiff there, and that his removal to this state did not divest him of the notice ; which instructions the court refused to give ; but charged the jury, that if the defendant relied on the recording in Georgia, he should have produced the laws of Georgia in evidence. The defendant also asked the court to instruct the jury, that from the certificates of authentication, showing the recording of the deed, they were authorised to presume, that it was recorded according fo the laws of Georgia. This instruction the court also refused.
    It is assigned for error, in this court, that the court erred in excluding the juror, and in the several opinions advanced in giving and refusing instructions to the jury.
    Peck, for Plaintiff in error.
    This is an action of detinue for a slave; and the questions here to be decided, áre set forth in the bill of exceptions. Young challenged a juror for cause. He was examined on oath, and stated that he had been employed by Tatum to go after a negro, (the one in controversy,) and had been told to get him at Young’s, or any where else — that he got him at McGee’s — that Tatum paid him fifty dollars for his services ; and that he had no interest whatever in the suit, and should never gain or lose by the event of the trial. The court rejected the juror, Tatum objecting. This is the first point. I insist that the court erred in thus excluding from the jury one against whom there was no legal objection. The party was entitled to have the rules of law complied with; and if a juror was rejected, for cause, who was not legally disqualified, it is an error, which may be taken advantage of in this court. The juror having been employed to go after the negro amounted to no objection. He was paid for his services. And he expressly swears that he has no interest whatever in the event of the suit, and that he has no preju-7 dice against either party. If a juror be interested — if he has formed an opinion on the merits of the case, or if he is prejudiced against either party, he may be rejected ; but none of these objections applied to this juror. That an illegal de- . termination of the court in regard to the competence of a ju- ' ror, is good cause of reversal, the court is referred to 1 Johnson's Reports, 316. This case shows, that if a party makes a legal objection, which is not sustained by the court, it is error. This rule must work both ways. The party has a right to be tried by the jurors that are legally summoned, unless they are excluded by the rules of law.
    Now to show that the cause of rejection is not sufficient, the court is referred to 8 Johnson, 347 — by which it appears, that where the juror has given a hypothetical opinion on the case, founded on rumors, it was not a sufficient cause of rejection. What cause was there for the rejection of the juror, in the case before us ? Because he had been in the employment of one of the parties ! And because the negro whom he was employed to go after (and for which he was paid) happened to be the one in controversy! And here too the juror was sworn, his oath relied on, and he swears that he has no interest in the case, and that he is not prejudiced. For a statement in detail of the causes for which a juror may be rejected, the const is referred to 1 Cowen, 438 ; from which it will be seen, that the case before the court does not come within any of those causes.
    As to the other points : The defendant below claimed by virtue of a deed of gift. The donor was at the time of making the deed, free from debt. He was an improvident man, of a weak mind ; and the deed was made, at the advice of friends, that the children might not be deprived of a support. The deed was made in Georgia, the donees being minors, and living with the donor. A year or two afterwards, the donor removed to Alabama, the donees and the slaves, (of whom the slave in contest is one,) remaining in Georgia. After another year or two, the donees with the slaves removed to this state, and lived with the donor, the donees still being minors. The deed was recorded in Georgia, two days after its execution. The plaintiff below lived near the donor and donees in Georgia, and in this state, and it was generally understood in Georgia, that this property íiad been conveyed to the children ; and one witness said it had been spoken of by the wife of the plaintiff below, and he believed, in the presence of her husband.
    Upon the instructions asked for, a question arises as to the recording of the deed. I insist that there was no necessity, to render this title perfect, for the deed to be recorded, either in Georgia or any where else. Why should we suppose recording necessary ? It does not appear. If there exists no statute of registration in Georgia, requiring such deeds to be recorded, such recording is not necessary. A complete title passed at once. It cannot be pretended that the deed was void as to the plaintiff below, on the ground that he was a purchaser without notice; because there is abundant evidence of his knowledge.
    It is said that the statute of limitations of six years, and the statute of frauds of three years, were relied on; but neither of those statutes apply, because the donees were minors.— The donees being minors, and living with their father, the possession given at first was as complete as it could be. And when the father left Georgia, the donees were left in sole possession of the slaves. I insist that this was a contract conveying as full a possession as could have been conveyed under the circumstances. It was not a verbal contract; but it was made in writing. Nay, more — it was recorded, and we may reasonably presume that the law authorised recording. It can not be urged that the possession was with the donor in this state, because the donees, still being minors, lived with him.
    Whether it were necessary to make the deed universally valid, that it should be recorded, or not, is immaterial in this case, because the knowledge of the deed is brought home to the plaintiff below. He purchased with full knowledge of the "deed. Where an instrument is required to be recorded for the purpose of giving notice, although it be not so recorded, it is good against one who has'notice. It is scarcely necessary to quote authority to establish this principle. The doctrine may be found in 9 Johnson, 162,_and also in 10 Johnson,

    Goldthwaite. — The doctrine is not controverted.
    Peck.. — Then I contend that the deed conveyed an absolute title, and that any instruction making it necessary for the party to produce the laws of Georgia, must have been erroneous.
    Goldthwaite, contra.

    — The mass of testimony introduced in the bill of exceptions, has very little to do with the instructions required of the court; and yet it is upon the correctness or incorrectness of the court in regard to those instructions, that the question turns. It is clear from the instructions asked for, that the defendant below wished the court to state the legal effect of the recording of the deed in Georgia, without his showing what the laws of Georgia were. This the court'very properly refused to do. The court were assuredly right in the position, that if the party relied on the legal effect of recording in Georgia, he must produce the laws of that state^ and thereby show' what the laws required in regard to recording, and what -was its effect. Is there any thing in the instructions given to reverse the case ? Gould the court give a charge involving the laws of Georgia, without those laws being produced ? In support of this view, the court is refered to a case decided'in! this court, Mitchell vs. Mitchell, June term, 1832, (opinion in manuscript) which establishes the principle, that no advantage can be derived from the regis- ■ tration of a paper in another state, without showing that the instrument was required to be recorded, and what effect the laws of that state gave to such recording. Where then is the error ? Does the certificate of the clerk prove any thing without showing the laws ? The act' of Congress to which “ the gentleman has so kindly referred me, has no application. This shows how a reeord may be authenticated ; but such authentication cannot show that snch record is authorised, or what effect is given to it by law.
    But the point, in regard to the excluded juror, is the one, on which, it is presumed, the opposing counsel intended mainly to make battle. The juror, it seems, had taken forcible possession of the slave, at the instance of Tatum. If he were not partial to him, or prejudiced in his favor, would he have exposed himself to a criminal prosecution for stealing the slave ; or to say the least, laid himself liable to damages for committing a violent trespass ? If, as is laid down in the case quoted in Wheaton, a servant or a tenant of one of the parties may be excluded for cause, surely this man ought to have been excluded. But waiving this point, I’would inquire if we had not a right to exclude one juror. The record does not show that we had exercised this privilege, in regard to any other juror, and that we had, will not be presumed by the court. It is contended that the cause of rejection was insufficient. Be it so : say that the court rejected him at our instance, without any cause, will that be sufficient to reverse the case, unless it be shown that we had exhausted our peremptory challenges ? •
    But if it were admitted that a juror was set aside improperly, and a trial was nevertheless had by an impartial jury, is that such error as can be taken advantage of after verdict ? The case is quite different where a juror is made to sit on the trial, who ought to have been excluded. In such a case, the trial is not had by a legal jury. I challenge the opposite counsel to show a single case in all the books, where a verdict has been set aside, merely because a juror was rejected that might legally have served. The coilrts are in the constant practice of excusing jurors merely because it is inconvenient for them to serve. They may sometimes exercise’ discretion? improperly ; they may let an individual off who ought to have ~ been retained ; but are the'proceedings therefore erroneous?
    The court is referred to the case of the United States vs. Gorney — 2 Mason, 106. In that case, the life of an individual depended on the event of the trial. Two individuals belonging to the society of Friends were excused, because of their peculiar views in regard to the causes which justify capital punishment. The court, on a motion for a new trial,, on the ground that the jurors were improperly excluded, overruled the motion ; and the Judge states, that, he does not know that a new trial ought to be granted, if the jurors had' been excluded for an insufficient cause, provided a trial was had by an impartial jury. Such being the doctrine where human life was depending, it is still more obviously correct in a civil case. It is not pretended that, in the case before the court, there was not a trial by an impartial jury, and yet the plaintiff in error would have the case reversed, because he could not have the man upon the jury that he had previously got to take and bring away the slave.
    Are not the court authorised to use some discretion in rejecting jurors ? And where there is doubt of the juror’s be-, ing impartial, it is safest to reject him. But suppose the case where a juror says he is sick ; may not the court in its discretion discharge him ? or, if one' of the parties says he is not sick, must there be a trial of the fact, by the introduction of witnesses ? I hold it a matter of small importance, who is ■ rejected, provided the case be tried by an impartial jury.
    Pickens, in reply.
    I feel myself in a great measure relieved from one part of the argument. That the juror was excluded for insufficient cause, I consider as in effect admitted ; the gentleman having failed to controvert our showing on this subject.
    It is of no importance in this case, whether the party has exhausted his peremptory challenges or not; because, where it is th'ought proper to get rid of as many of the jury as possible, it becomes an object to exclude as many for cause as possible ; because the right of peremptory challenge is still held in reserve, and may be afterwards exercised. Besides, if the party had not exercised, this privilege, if that were of any importance to the case, he ought to make it appear»
    The opposing counsel admits that an erroneous decision íii. regard to the competence of a juror, may be a good objection ; but he will only admit it to be so on one side of the question. Now, it would seem to me, that a clear violation of the law, on either side, is fatal error. The law required jurors to be drawn in a particular manner. Those thus drawn are legal jurors, and either party has a right to hávé his cause tried by these, unless they be excluded for legal cause, or by those challenges which the law allows. Neither the' court, nor either of the parties has any right, to exclude these regular .jurors, and throw the trial on others. I beg the court to observe too, that here the juror was in the box — he was a juror; which distinguishes this case from that in 2 Mason. There, the jurors had merely been summonedj and were set aside without being sworn»
    The doctrine contended for by the gentleman would be a very dangerous one. The judiciary of our country may not always be pure, and free from improper influences. Suppose a case of political bias. If a Judge can turnoff one-man without sufficient cause, he may turn off any number. If it be observed that the jury is not politically orthodox, a few may be got rid of by peremptory challenges, and challenges for cause, and the rest of them may be disposed of by this kind of judicial discretion, of which we have just heard. Thus a jury may be obtained of the favorite political creed» Would there be nothing illegal in this ? - Would it not be breaking down those guards to the rights of individuals, which have been thrown around them by the law.

      The gentleman asks us for cases. To search after cases devolves on him. We show him the rule of law ; it is for him to show that the rule is not obligator}-. The case he has cited is not applicable on several accounts. That was on a motion for a new'trial, which is a motion addressed to the legal discretion of the court; but where the question is raised by bill of exceptions and assigned for error, the case is different. But in the case cited, the hesitation of Judge Story is an argument in our favor.
    On the other point, I contend that the court erred. The court was asked to charge the jury that, if the plaintiffbelow was a resident of Georgife when the deed spoken of was made and recorded, and if the same was recorded according to the lav/s of Georgia, it was nolice to him and still binding on him. Was not that position true ? No question was made about the laws of Georgia.' A conformity to those laws was supposed in the instructions asked for. For what purpose are such instruments recorded but for the purpose of notice ? Is not that the grand object of recording, wherever the laws require it ? The court in refusing to give the instructions, in effect deny that notice in Georgia is also notice in this state.
    The provision of the constitution, which requires that when certain requisitions are complied with, full faith and credit shall be given to the records of a state in any other state, merits consideration. I hold that the authentication of these records, according to the constitution, establishes them as records, and the legal inference is, that they were made to give notice of the transaction. Does not this then presept a prima facie case in favor of the instructions asked for ? The court was only required to instruct the jury that they were autho-rised to presume in favor of the sufficiency of the notice.
   By Mr. Chief Justice Saffold :

This is an action of detinue, which was brought by the present defendant, against Tatum, the plaintiff in error, for a negro slave named Jacob, in the Circuit Court of Autauga.

The questions presented for revision, arise out of a bill of exceptions taken on the trial. It appears that the counsel for Young, the plaintiff below, challenged J. H. Gorman of the jury, for cause; that he being examined on oath, deposed that he had been employed by the defendant, Tatum, to go after the slave in question, to the town of Selma, for which ■said defendant paid him fifty dollars; that he, with one James ‘Tatum, went to Selina, and found the slave in a grog shop. ■He further stated, that his instructions were, to get the negro at Young’s, or elsewhere, as he could ; that he did not know in whose possession the negro then was ; found him without a pass, and had brought and delivered him to the defendant. He also said he had no interest in the suit, nor did he feel any. The counsel for Tatum objected to the rejection of the juror ; but the court sustained the challenge.

The bill of exceptions also shows, there was proof, that in 1816, Thomas Tatum made a deed of gift of this slave to his children ; that this was done in Georgia, and the deed was recorded in that state, in the county in which the donor and plaintiff resided at the time; that some time afterwards, the ■donor came to this state, and remained here one or two years, while the slave and children remained in Georgia ; that in 1818 or 1819, the slave came here with the donor and donees, who lived together, and the slave with them, the donees being minors; that after the removal to this state, the plaintiff resided within a half or three quarters of a mile of the donor •and donees, and the existence of the deed was generally known in their neighborhood in Georgia, and in this state; also, that it was spoken of by the wife of the plaintiff, and as the witness believed, in his presence, prior to the purchase.of the slave by him. But. the deed had not been recorded in this state.

Upon this evidence, the defendant below requested the court to instruct the jury, that recording the deed in Georgia, was notice to the plaintiff; also, that from the certificate of the clerk, that the deed had been duly recorded, and the presiding Judge’s certificate, they had a right to presume, that the recording was according to the laws of Georgia, though the same were not produced. The court held, that if the defendant relied on the recording of the deed in Georgia, he should have produced the laws of that state in evidence ; therefore, refused the instructions requested.

It is now assigned for error—

3. That the challenge of the juror ought not to have been sustained. ,

2. That the instructions to the jury were erroneous, in respect to' the effect of recording the deed in Georgia, and the necessity of producing the law of that state.

It is doubtless true, as contended for the plaintiff in error, that if che court overrule a valid objection to the competency of a juror, the circumstance of the party having gone on to 0n mer’ts> i® not a waiver of the exception; but he may still take advantage of it in error. Nor do Idoubt, that the overruling a challenge to a juror, founded on a legal objection, would be error. The effect would be to compel a party to abide the decision of an illegal jury, the consequences of which might be greatly injurious. It does not, however', follow, that either the effect or consequences would be the same, from the rejection of a competent juror. But this point will be further considered aft er a slight notice of the validity of the objection to the juror m question, and of the authority relied up on to support it.

I readily concede, that the jury must consistí of persons omni exceptions majares. Yet the law recognises a variety of objections founded alone on supposed bias or partiality. The authority to which the counsel for the plaintiff in error refers, admits, as principal cause of challenge to the polls propter ' affectum, not only remote kindred, and the slightest interest, direct or collateral, but also the circumstances — that the juror has before given a verdict in the same cause, or upon the same-title or matter, though between other parties — that he was chosen arbitrator by one of the parties, and has entered upon the examination of it — that he has declared his opinion of the case beforehand — that since he has been returned, he has eaten or drunk at the expense of one of the parties — that an action implying malice or displeasure is pending between the juror .and one of the parties, &c.—See Pringle vs. Huse—1 Cowen, 432—6, note 1, and authorities there cited.

It is not contended that either member of the jury who tried this cause was incompetent, or in any degree exceptionable ; nor does it appear (if that could be material) that all were not of the regular venire. The person rejected from the jury may have been preferred by the party for whom he had been employed to procure the slave, in consequence alone, of his presumed bias or partiality, from having participated in the wrong complained of in the action. Whether this person’s participation in the act did not subject him to an undue influence or partiality, equal to those referred to as c’auses of challenge, maybe well questioned. We are not to consider the causes particularly enumerated in the books, as the only legal grounds of challenge ; these are causes which have already occurred, and been held sufficient; any other causes which would equally affect the judgment or impartiality of of the juror, would be equally available. But it is unnecessary to press this inquiry further, unless the rejection, if considered unauthorised, can furnish a ground for reversing the jndgment.

It- is a general rule, that neither party can claim any advantage from any decision, or other matter, having no tendency to prejudice him. Where a cause has been tried by an unexceptionable jury, the law presumes no injury to either party, for the want of any other person, in lieu of any of those composing that jury. Should it happen, as supposed in argument, that the Judge, from political, or other unworthy motives, might at sometime reject jurors to effect some sinister or criminal design, and the circumstances disclose a probable injury to either party, the question on error, might be essentially different; and at any rate, the Judge would be responsible to the state by impeachment, or such other mode of redress as the constitution has provided, I think it may be safely assumed that his powers in this respect would not be more dangerous than in many others, for .the exercise of which, it is clear there can be no relief in error.

On this point it may suffice to refer to the one case only, which was cited in argument. In United States vs. Cornell, Judge Story says : “ Even if a juror has been set aside by the court for an insufficient cause, I do not know that it is matter of error, if the trial has been by a jury duly sworn and im panelled, and above all exceptions. Neither the prisoner'nor the government in such case, can have suffered any injury.” We are of opinion, that this rejection of the juror, under the circumstances of the case, is not a matter available in error.

2. On the second point of exceptions, former decisions of this court are perhaps conclusive. Unless the registration of such deed was authorised by the law of Georgia, and it has. been recorded as directed by that law, the registration can imply notice thereof to no one The principle was recognised in Duffy vs. Frenage, (January, 1834,) — in Mitchell et al. vs. Mitchell, (June, 1832,) the paper in question was a deed of gift, as in this case. ' We there held the following language !“ To authorise the introduction of a copy of a deed, the plain"' .tiff should show, that by the authorities of Georgia, such conveyances are required to be recorded ; and as a consequence .thereof, that the clerk recording them, or keeping the record, had authority to certify copies. * If the recording was an ex-pa official act, the clerk had no authority to certify the copy as evidence. The legality .of the procedure, is not to be presumed, because it is not the .course of the common law.”

The act of Congress relied upon in argument, is supposed tp be that “ Supplementary to the act entitled “ An act to prescribe the mode in which the public acts, records,” he. shall be authenticated, passed in 1804. This act directs, that “all records and exemplifications of office booh s which are or may be kept in any public office, of any state, not appertaining to a court, shall be proved or admitted in any other' court, or office, in any other state, by the attestation of the keeper of the said records, or books, and the seal of his office thereto annexed, if there be a séal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept; or of the governor, the secretary of state, the chancellor, or the keéper of the great seal of the state, that said attestation is in due form, and by the proper officer ; and the said certificate, if given by the presiding justice of the court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or if the said certificate be given by the governor, the secretary of state, the chancellor, or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made : and the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are or shall be taken.”

It will be observed, that to bring this deéd within the re- 1 quisition of the statute, the farther certificate of the clerk or prothonotary was necessary ; and that this, at most, could only make it evidence, entitled to such faith and credit in the courts or offices of this state 'as it would have in Georgia by the law or usage of that state. Such records or exemplifications were never intended to be made evidence of the law of property in a different state ; but the mode of proving such laws is otherwise prescribed.

The rule which regards registration of deeds, as construe^ tive notice to all concerned, is in itself, a rigid principle ; and it would be unsafe, first to presume, from the certificates of the clerk and Judge, " that the law of Georgia authorised the registration of this deed, and then make this presumption constructive notice to Young of its existence. No questionis presented to this court respecting the sufficiency of any other proof of notice.

The j udgment below must be affirmed.

       1 Johns. 315, 8 Johns. 347.

      2 Mason, 91.

      lug. I). 299.


author: 'Ey Mr. Justice Thornton :

text:
    The Adm’r of Joseph Gee vs. John W. Williamson, for the use of Theophilus Nicholson.
    :Error from Wilcox Circuit Court — Before the Hon. Sign L'. Perry.
    A. brings suit against B. on a written promise, for value received, to pay the debt of A, due to a certain Bank, as the instalments of the same shall become due : to prove a default on the part of the defendant, the plaintiff offers, as evidence, a record, showing that in a suit by said Bank against the plaintiff, the defendant, and another, on anote signed by them, judgment was taken by confession against the last mentioned payor, and an execution issued against all throe, which was returned “ satisfied,’' generally, the note being for a less amount than, the debt mentioned in the promise, and due at a different and subsequent time: Such record does not prove a default on the part of tho defendant ; and, without other explanatory testimony, is not admissible at all, as evidence in the cause.
    Whatever has Veen once established in this court, between the same parties, continues to be the law of the case, whether correct on general principios or not, so long as the facts on which such decision was predicated, continue to bo the facts of the case.
    Where a note given upon a defective consideration, is transferred to a ■purchaser on a valid consideration, a right of action, to the extent of the defect, accrues to the iransferree immediately. From that time, such right of action is available as a set off, and is not limited to tho time when the dofeet in the consideration is established by record evidence.
    fbe indorser of a promissory note, where there is a failure of consideration, is not entitlod to demand and notice, to render Mm hable to the extent of the failure. He is in that respect, ia the situation of a drawer of a bill of exchango, having no authority to draw, nor any funds in the hands of the drawee.
    This was an action of trespass on the case, brought ’ey /illiahison for the use of Nicholson, against Gee, on a wrii^ 1 ten instrument given by the latter to Williamson, acknowledging the receipt of eleven hundred dollars, the amount of a debt then due from Williamson to the St. Stephens Bank, and promising to pay the said bank debt as the instalments should become due. The questions for this court to determine, arise in regard to the admissibility and effect of two records, which were offered as evidence.
    One of these records was in the name of the Tombeckbee Bank vs. John W. Williamson, Joseph Gee, and Theophilus Nicholson. Gee does not seem to have been served with process. The action was founded on a note from the defendants to the Bank, for nine hundred dollars, dated 23d March, 1821, and due ninety days after date. Judgment was confessed by Nicholson only ; but execution issued against Williamson, Gee, and Nicholson, which was returned “ satisfied” generally, without stating who made payment. The plaintiff offered this record to prove a default, and although the defendant objected, it was admitted by the court.
    The other record, which was introduced by the defendant, sets forth an action brought by Gee against one Shaw, on a note which Williamson had assigned to -Gee, previous to the commencement of the suit now before this court. Judgment was obtained; but five hundred dollars of the same ivas enjoined on an alleged failure of consideration. This injunction, though aftewards dissolved, was finally perpetuated.Williamson had been made a defendant in the chancery suit, but the cause was heard ex parte as to him.
    The defendant, relying on this record, under the plea of set off, the court instructed the jury that it was necessary for the defendant to prove a demand and notice to plaintiff to fix his liability as an indorser, or that there was a failure of consideration ; which facts, the court also charged, or either of them could not be proved by the record relied on. The defendant excepted to this opinion.
    The opinions given by the court in regard to these two records are assigned for error in this court.

      GoLDTHWAITE, for Plaintiff in error.
    As to the introduction of the record of the case of the St. Stephens Bank vs. J. W. Nicholson, as evidence in the court below, it appears at once, unless some reasons could be shown to the contrary, to be erroneous. The general rule is, that records are not evidence, except between parties or privies. Here the parties are altogether different. And there is nothing in the case which could justify the court in admitting it for the cause for which it is offered. It was offered to prove a default on the part of Gee. It could not prove that fact. A written agreement was the foundation of this action: it should have been shown that the undertakings, therein set forth, were not complied with. Half a dozen records between other parties, could be no evidence of a default. Such records ought not to be admitted, because they might be got up by collusion, against which, he who was no party to them could hot guard. A man, for instance, who has been my security, sues me on the ground that he, as security, has paid money for me: he introduces a record where another has sued him and he has confessed judgment. It is no evidence against me; the whole may have been manufactured by him. The record was offered to prove a default. It could not be evidence for that purpose ,• yet the court admitted it. This is error.
    As to the other point: the record offered by Gee, to prove a set off, was admitted, as evidence, by the court. Yet the court instructed the jury, on the application of Williamson’s • counsel, that this record was no evidence of a right of set off on the part of Gee against Williamson. The court below could not have understood the case. There was no necessity that they should have been wandering in the dark. The light of the Supreme Court shone full upon them. That tribunal had decided in the case of Gee, Achrír vs. Nicholson, that this record was evidence of set off in behalf of Gee— 2 Steio. 512. The court, I have said, admitted the record as evidence. And yet, if it did not establish the liability of Wil-iiamson to Gee — and therefore the right of set off in the lat™ ter> wIlat did it establish ? If it did not prove this, it must have been the most ridiculous mass of nonsense, as to any pertinent purpose, that ever was introduced in a court of justice. The court might as well have admitted a ream of blank paper as evidence in the cause. It was admitted, it would seem, for no purpose at ail; and it was expected of us to show its application. But the court said that we were bound to show demand and notice : and this, when we showed by the decree of the court that the liability of Williamson was established on the ground of gross fraud, and that all the facts of which notice could have been given were fully within the party’s knowledge! I cannot do the court below the injustice, to suppose that the decision would have been given., that was given, if the case had been understood.
    Stewart, ,contra.
    . To enforce a recovery against Gee, it was necessaiy tt> prove a default on his part. The record which we introduced, ' was introduced to prove a default. It was objected to, but admitted by the court. The bill of exceptions does not say it was received as evidence to prove a default only, and to prove nothing else. If we introduced it as evidence to prove: a default, and it is in fact evidence for any other purpose, there is, no error in its admission.
    The general rule, that a record of a suit is only binding on parties and privies, is not called in question. But the rule as to the introduction of records, not between the same parties, as evidence, is by no means universal. Such records may be introduced to establish certain facts, which may constitute ' a link or links in the chain of testimony necessary to a recovery — 1 Wheaton's Digest, 163 — 4 ib. 213, 220. These cases prove that when such record is not evidence per se, it may yet be evidence as a link in the chain of testimony necessary ip bo established. The material facts which the record went to prove was, that, there was a judgment, formal or informal, in that suit in which Williamson was defendant, the amount of that judgment, and that it was paid. Other facts might be necessary to make out the case. The court did not charge that the record proved — that it established the default: but merely decided that it was admissible.
    In regard to the other point: It was attempted on the part of Williamson, to use the record introduced by him of Gee vs. Shaw, &fc. to establish his right to a sei off. If the counsel will attend to dates, he will find that, at the time of the commencement of the suit, he had no cross demand. The injunction which Shaw had obtained against Gee had been dissolved, and had not at that time been re-instated.
    The record, however admissible it may have been to prove some fact which might have been material in a chain of testimony, could not establish a set off; it could not prove Williamson’s liability; because Williamson was not a party to it. His being nominally a party, makes no difference. lie should have had notice of the suit: he might have established a sufficient consideration. Notice was therefore necessary to make the record evidence for the purpose sought — 1 Payne, 549, 554.
    That the court in that case, gave judgment against Williamson for costs, does not make him a party. The judgment seems to have been without any sufficient reason. It is like the famous case before the Cherokee chief, who directed that both parties should be whipped, and that the constable should pay the costs. The decree recites that the cause was heard ex parte as to Williamson. But if Williamson had been a party, what would the record prove ? Gee and Williamson were defendants : the court could only grant relief or refuse it; they could not regulate and determine the rights between-co-defendants.
    Goldthwaite, in reply.
    The record, offered by Williamson to prove a default on the part of Gee, was admitted by the court for that purpose-, This error is not cured if it could be shown that the record was admissible for some other purpose. It was admitted (V/e objecting at the same time,) to prove the default complained of in the declaration. It matters.not whether it was admitted as absolute or prima facie evidence : the former kind becomes absolute if not contradicted.
    As to the other record, it is contended that Williamson was not a party. This is urged on the ground that he was never served with process. It has been decided in this court that a party who has not been served with process, otherwise than by the attachment of his goods and chattels, is bound'by such service, unless he show that he had no notice. 2 Stewart, 399,

    But is it contended that in all proceedings in chancery, the decrees which are taken ex paHe have no effect? These were proceedings of a court having plenary jurisdiction : and a decree made against one, as a party, will not be presumed to haiTe been made without authority. The decree is not reversed. If execution for costs, in pursuance of this decree, were to issue againt Williamson, would he have any remedy ? How then can it be contended that he is not a party ?
    But it is said that this decree establishes nothing. It establishes that Williamson committed a fraud against Shaw j and that See failed, to the extent of the sum enjoined, to get 1 the amount of money which he was to receive by the transfer of Shaw’s note, The law establishes the rest, and makes Williamson liable to Gee to the amount which he lost in that transaction.
    The cross demand existed at the time of the commencement of the suit: although the evidence of the amount of that demand may not have been available until afterwards. It matters not how short a time previous to the trial this evidence may have become available. _ Suppose there had been no decree; but that Gee had proved on the trial all the facts set out by Shaw in hisbiil, would they not have furnished good cause of set off?
   'Ey Mr. Justice Thornton :

This cause was once before brought up by writ of error to this court; and was reversed and remanded.

The declaration contains, in addition to the common counts in assumpsit, one upon a writing of the intestate of the plaintiff in error, described in said count as an agreement or writing, dated the 14th of March, 1821, under his hand, acknowledging that he had received of the defendant in error, Williamson, the sum of eleven hundred dollars, which was the full amount due by said Williamson in the St. Stephens Bank, which said sum of eleven hundred dollars, the said intestate, in the aforesaid certaiti writing or agreement, undertook and promised said Williamson to pay, into the St. Stephens Bank, as the several instalments of the said eleven hundred dollars should become due. This special count concludes with the breach — “ Yet the said Joseph Gee, (the plaintiff’s intestate) not regarding his promise and assumption so by him made as aforesaid, has not paid the said sum of eleven hundred dollars into the St. Stephens Bank, as the several instalments in said Bank, on that sum, fell due,” &c. The error assigned is, that the court erred, as stated in the bill of exceptions. Upon examining the bill of exceptions, we find two matters excepted to. First, the admission of a record of the Circuit Court of Washington county, of proceedings had in that court in favor of the Tombeckbee Bank, which discloses a judgment had against the cestui que use in this action, on a note for nine hundred dollars, payable to the said institution, dated on the 23d day of March, 1821, and signed by J. W. Williamson, Joseph Gee, and said Theophilus Nicholson. The exemplification further shovvs, that on this judgment an execution issued against all the said obligors, which is returned by the sheriff, “ satisfied,” generally, without ^specifying who paid , it. The bill of exceptions states this ground of error thus— “ On the trial of this cause, the plaintiff offered in evidence, the exemplification annexed and marked A, to prove a default by the defendant’s testator, in his contract as declared ; to which the defendant objected, and the court admitted the -” If the just import of this language is, that that the record offered constitutes proof of a default in performance of his contract, by the intestate, (which is not a very strained construction) there can be no doubt that the exception was well taken; for the defendant’s intestate, was no party to to those proceedings, and should not be concluded by them, as the matter of his performanceof hiscontract, even though they Were had, upon the same debt to the Bank, which his contract had bound him to discharge. But not preceded by, or at least not accompanied by any explanatory testimony, this record was not only no evidence of a default, but was wholly inadmissi-as any evidence at all. The contract declared on, is of 14th March, 1821, and binds the defendant’s intestate to apply a certain sum of money to the discharge of that amount} then due by the said Williamson to the St. Stephens Bank, the several instalments thereof may become due. Now note to the Bank, which is the foundation of the record proceedings admitted as testimony, is the note of the said Williamson, Nicholson and intestate, for the sum of nine hundred dollars, dated the 28th of March, 1821, and payable ninety days thereafter. For this cause, without more, the judgment should be reversed.

As however, the matter of the other exception, touching the effect of the record designated B. in the bill of exceptions} may be agitated again, in any new trial which may take place, we feel called upon to decide in relation to it also.

This record is voluminous, but á short statement of its-prominent features will suffice. It appears from the exemplification, that some time before the institution of this ac_ tion, Williamson, the defendant in error, had assigned, to the intestate Gee, a promissory note upon one Shaw.' Judgment being had thereon at common law, Shaw filed a bill in equity, praying an injunction, which was granted also, before the issuance of the writ in the cause before, us. This bill,' which made both Williamson and the intestate Gee, parties defendants, sought-relief on the ground alleged of fraud in the consideration of said note, practiced by the said Williamson, occasioning a failure thoieof. After many things done -in the progress of this chancery cause, which ere deemed unnecessary to be noticed, a final decree was pronounced in April, L825; which, (after reciting, rf*,--; hi conformity tv orders theretofore made, the civ.', r t 3 !, >.»: rcr:? as to Williamson, on the bill, auswv «••>.* vm ««.st'mony,) perpetuated the injunction, and d.u roc.;'! she wb: ¡-; nu.r', Williamson. The defendant in the cowi b hv, ij.*« record, under the pica of set off; a:;. f >e r, w .. ckaiged .'V-jury, that it was necessary for him “tog v.;, . a a,.u'i notice to the plaintiff, to fix Ids liability as ; sd- ; • : Ws there was a failure of the consideration of a v-d-i-d-facts, nor either of them, could bo pro-red by >: * \ - »./ •--< plification” — which charge is assigned for err-,.-..

. This cause having on a former occasion boon n. -fimo tins court, it behooves us to ex ami ;e, what principios ws’se theft settled ; for it is well estah'rshed, that whatever has been once stabiished in this court, between the sumo pasties, in the same case, continues'to be the law of the case, whether orthodox or not, so long, as tiro facts, of which such legal principles were predicated, continue to be the facts of liso case. We are not authorised to presumo that ibis record i.i not the same which was offered on the forraor trial. W« will not suppose that there were two of perfect similitude, and that this Is that other, and not the one formerly attempted to be used under the plea of set off. Then as l apprehend, the effect of this very record has been settled by the former opinion of this court; so far at least, as to conclude one of the grounds charged by the court, as not proved by the exemplification — -that is, the failure of consideration. Bat if the former opinion should be considered as only settling the admissibility of this proceeding, notwithstanding that its admissibility is deduced in that opinion, mainly, from a consid« ration of its effect; yet I would consider the charge to be er~ ' roneous. . .

Without proof, that the terms of this assignment were such as to prevent it, I think a right of action accrued to the intestate, Gee, immediately upon the transfer of the note upon Shaw ; for at that very time, the consideration of the assignment had failed, and a liability arose, to the extent at least, to which the transferred note was rendered void by the fraud of Williamson.

It is true that record evidence did riot then exist of this failure of consideration ; but the doctrine on this head, is not ( that nothing shall be. used as a setoff, the proof of which transpires after action 'brought, but that the right to set off as a debt due only, shall have been acquired before that time. Now this note upon Shaw had been assigned, and its collection enjoined by the fiat of a chancellor, prior to the institution of the present action; arid its consideration had also failed, though the conclusive evidence of that fact, which this record discloses, was not their in existence. As to the demand and notice, it is only suggested in the charge as aa alternative requisition, admitted very properly to he 'unnecessary where failure of consideration appears. The payee of a note, indorsing it, is like the drawer of. a bill of exchange, and the maker like the drawee. Now, want of funds, or au- /' 'thority to draw, supersedes demand and notice.

• Let the judgment be reversed, and the cause remanded.

      2 Stew. 512.


author: ■ -By Mr. Justice Thornton-: "

text:
    Dennis Commons vs. Frederick S. Walters.

      Error from Perry Circuit Court — Before the Hon, P. T. Harris.
    Where several pleas are pleaáed, in pursuance of the statute, any evidence is admissible which might be legally'introduced under afly one of the pleas.
    In an action of slander, evidence going to show that the plaintiff was suspected of being guilty of the offence imputed to him by the words charged, is not admissible under the plea of justification, which plga undertakes to prove the truth of the words.
    Where a plaintiff sues for an injury done to his character, by a particular charge uttered and published against him, proof of want of character,, by a general suspicion of his guilt in the very particular charged, is appropriate testimony under the general issue; but it is necessary, to au-thorise the admission of such testimony, that it should obviously relat© to a time anterior to the uttering of the words charged to be slanderous.
    Walters, the defendant in error, brought an action of slan*der against Commons, iri the Circuit Court below, for saying that he, Walters, bought cotton of negro slaves,; and in one count, that he hired negroes to steal cotton and bought it of them. Justification and the general issue were pleaded.— The defendant offered to prove that “ it was generally suspected in the neighborhood” that the keeper of a certain shop, which was proved to have been kept by the plaintiff, “ traded, with negro slaves,” and that “ it was generally suspected in. the-neighborhood that the plaintiff did trade with negro slaves for cotton.” i
    This evidence the court below rejected ; and it is the re^ _ jection of this evidence which is here assigned for, error.

      Pickens, for Plaintiff in error.
    In this case, there were several counts in the declaration in two or three of them, the words charged were substantially, that the plaintiff “ had' bought cotton of negroes.” The defendant offered to prove that “he was suspected off having bought cotton of negroes.”' The court refused to admit the evidence. This evidence was clearly admissible under the general issue, because it went to show that the character of the plaintiff was impaired ; that it was of little worth, in the very point in which it had been assailed by the words. The question under this issue, taking the amount of damages to be assessed into consideration, is not merely whether the words were spoken or notbut it relates also to the amount of character of the plaintiff. It is always competent to prove a general bad character under the general issue. — Starkie on Slander, 404, 405, 40Q — 2 Noil & McCord, 511.
    The evidence was the more undoubtedly admissible in this case, as justification was also pleaded. The party charges ns with having said certain‘words prejudicial to his character ; and we offer to prove that his character was such as our words represented it. This goes to justify tile words ; and at any rate, it is admissible in mitigation of damages.
    The admission of proof that goes to show that the damages done to the plaintiff’s character, was small, is of salutary tendency. It recognises the authority of public opinion, which often is stronger than law, in restraining immorality,' and maintaining the cause of uprightnfess ill the community.
    Peck, contra.

    The words charged in the declaration are different in different counts, but they amount substantially to this, that the plaintiff below had “ hired negroes to steal cotton, and had bought it of them.” The evidence, which the court rejected was, that “it was generally suspected that the plaintiff had bought cotton of negroes.” The plea was the general issue-The 'defendant in such case cannot be allowed to prove a sus-. picion of a particular impropriety in mitigation of damages. He may prove the general bad character of the plaintiff: against such proof the plaintiff may be presumed to come prepared ; but he cannot come prepared to rebut a suspicion as to any particular offence.
    The counsel may examine all the books, and he cannot find any. respectable authority, that will permit a defendant to prove the character of the plaintiff, as to any particular crime, in mitigation of damages.
    The defendant below did not offer to prove the fact, but the suspicion of the fact, which is not allowable. — 6 Mass R. 534 — 3 Mass. 11. 546.
    The case before us corresponds to the case cited. The defendant below wished to destroy the effect of the action against him by overwhelming the plaintiff with particular scandal, which he could not come prepared to meet.
    The true rule is, that the general character may be given in evidence, but particular rumors arc inadmissible. The' doctrine is the same, in this respect, whether the plea be the general issue or justification.
    But in this caso, the matter offered to be proved docs not amount even to a moral impropriety, and was inadmissible oh that account. One may lawfully trade with slaves, if such slaves have a written permit from their masters.
    Pickens, in reply.
    Some of the words charged in the declaration were not actionable ; but the plaintiff having relied upon them, evidence cannot be excluded, because the matter offered to ho proved is not of an actionable kind. We demurred to the declaration generally. The demurrer was overruled. We then pleaded to the merits. The jury found a verdict oh the whole declaration. The jury may in fact have based their verdict chiefly on those counts which are much the same with the matter offered to be proved. There was no surprise here. We offered to prove that the plaintiff was suspected of the very thing with which he had been charged. Particular facts .different from the offence charged, cannot be admitted. If one be charged with stealing horses, proof that he stole hogs, or was suspected of stealing hogs, is inadmissible. But this case is different. We offer to'prove that the character of. the party was not good as to the very offence imputed to him. And here it is observable, that we pleaded justification ás well as the general issue. If the evidence, or any of it, which was offered by defendant, and rejected by the court, would have gone to show the party guilty of the offence imputed, then the rejection was error.
   ■ -By Mr. Justice Thornton-: "

This was an action of slander,'brought by the defendant in error; and the declaration contains five counts; in all of which except one, the slander is charged to consist, in the verbal imputation, by the plaintiff in error, that the defendant bought cotton of negro slaves ; and in that one, it is charged to be, that the defendant hired negroes.to steal cotton, and then bought it of them. There appears to have been a demurrer to the whole declaration, which being overruled, was abided by ; arid pleas of not guilty, and justification, were filed to all the counts, on which issues were joined. During the progress of the trial, a bill of exceptions was signed, taken by the plaintiff in error to the rejection by the court of the following testimony, viz : “ that it was generally suspected in the neighborhood, that the keeper of this shop (one proved to be kept by the defendant in error) traded with negro slaves.”— The defendant further offered “to prove that it was generally suspected in the neighborhood that the plaintiff did trade with negro slaves for cottonThe assignment of errors, relates alone to this matter. Under the plea of justification, I do not hesitate to conclude that this evidence was inadmissible ; for great precision is required, both in the plea, and in. the proof under it. The truth is undertaken to be proved,, which if established, removes all ground of claim for dama- " ges. No suspicion, however stronger general, will amount to proof of a fact. Nor is common,frme any ground for justification. But the general issue is abo pleaded here, and feel well assured that the construction of our statute authoris-ing both pleas, should be such, as not to restrict in any manner the latitude of the pleaders evidence; but that any, which might be introduced under either plea, may still bo adduced, though both are on file. Then we must consider, whether the rejected evidence is admissible under the general issue. If at all, it can only he with a view to the mitigation of damages. If a plaintiff sue for an injury done to his character by a particular charge, uttered and published 'against him ; as the loss of character, is the basis of damages, the conclusion in my mind is irresistible, that proof of want of it, previous to the timo of uttering the accusation, by' a general ¡suspicion of his guilt in the very particular charged, is most appropriate testimony under the general issue. This then being the o:i!y ground on which the admissibility of evidence of the nature of that oMc::e:l in this case, cambe maintained, it is plain, that it should relato obviously, and expressly, to a time anterior to the uttoring of the slander ; for if.it be referable to a ti. o sub.'jauoat to its promulgation, and. admitted, then the shando.vr bus only to be artful, and industrious in the propagation of his calumny, and the success of Ids crime will insure Lis impunity. The testimony offered in this case is not thus explicit in its application; and for that cause was properly rejected.

There being no ether assignment of error,, the judgment, must bo affirmed.

       3 Bl. Com. 125.

       gtnrkio on Slander 409; 2 Camp. N. 251.