author: Saffold, C. J.

text:
    Adm’r of SPENCE versus WHITAKER et al.
    Ct'jüs'Cioys a this cast:.

      Relative to the assignability of stock certificates, and of off-sets thereto.

      As to sales to a trustee, of the trust estat ■ Compensation to an acting trustee.

    1 • Certificates of stock, issued by a private as articles rendering them assignable, and prf upon them, for debts diie the company, are hands of a bona fide assignee, to an off-set ginal stock-holder.
    3. A sale to a trustee of the trust property, by rest therein, induced by a want of information as to the value oft,he article sold, and which is within the knowledge of the vendee, but not disclosed by him at the time, is fraudulent añd void.
    3. So, where the active trustee of an association, having within his own peculiar knowledge and control, the condition of the company transactions; induced the holder of certain certificates, to believe that they were of little value, whereby a sale was made of part of them, to the trustee — it was held, the sale was fraudulent,-void and of non-effect.
    4. A stock-holder who acts as the agent and active trustee o.f a company, is entitled to a reasonable compensation lor his personal services, while regulating the business of the association.
    This was a Chancery cause in Lawrence Circuit Court.
    The hill was filed by Joseph Spence, executor of John Spence, and the suit was revived in the name of Campbell, administrator. The object of the bill was to effect a settlement and account of ' sundry transactions, in which Whitaker and others had been concerned as stokholders and trustees of the Court-land land company. s
    The bill 'stated,_ among other matters not material to be noticed — that a number of individuals, in 1818, having on their joint account purchased certain lands, associated themselves together by articles of agreement, (exhibited as'part of the bill,) under the name of the “Courtland Company,” and constituted and appointed William H. Whitaker and the other defendants, agents, or trustees, to lay off and sell out a town on said land, for the benefit of the stockholders; that said town was laid off and sold, and the proceeds and interest in said property divided into one hundred and sixty .shares, for each of which a certificate issued; that, by the terms of said articles, the certificates were assignable, and the assignee thereof entitled to all the benefits, and subject to all the conditions and penalties to which the original parties thereto were subject and liable. That, one great object of said trustees and others interested, was to force the improvement in said town; and, with that view, the said certificates were exempted from all incumbrances, but those apparent upon their face, in the hands of assignees, that they might obtain a more extensive circulation, and increase the number of individuals interested in the prospects of said town.
    It .was further charged, that it was understood, by the members of said association, and.expressly agreed by them, and the trustees, in-their behalf, that such certificates, bona fide assigned, should not be bound for any debt against the assignor, but such as were expressly stipulated dn their face. That one John M. Tilford, being the owner of nineteen shares of said stock, 'did, about the 25th August 1821, depo-site them with John Spence, the complainant’s, testator, as collateral security against a heavy responsibility incurred by him, for said Tilferd, and at .the same time did, by power of attorney, authorise said John Spence, to sell and transfer the same; that in pursuance of said agreement, thirteen shares of said •stock, had since been assigned'to Joseph Spence, the executor of said John; that said John Spence had peen compelled to pay the sum for which he made-’himself liable, and that his executor was entitled to all the proceeds and benéfits of said shares of stock.
    The bill further charged, that after said John Spence became entitled to said certificates, a call was made on the stock-holders, for a payment thereon, agreeably to the arlicles of association, and that said John attended,- with the expectation that there was enough due on the shares, to, meet said call, but was informed by said Whitaker, the treasurer and active trustee of said board, that that was not the case, and that no dividends had been declared.— That, thus situated and surprised, he was induced to sell to said Whitaker, six of said shares, to enable him to prevent the forfeiture of the remainder; and that, upon the representation of said Whitaker, that they were of no greater value, he sold them at ninety-three dollars and fifty cents a share.
    The bill charged Whitaker with negligence, in not keeping the books, arid making an expose of the situation of said business as required by the articles of association ; that he had been permitted to manage the business in his own way; and had, by va- - rioüs stratagems, possessed himself of a large portion of .the stock; that, by refusing to permit Spence to inspect the books, and deceiving him, as to the real, situation of the funds, he fraudulently induced him to sell said six shares, at a very small part, of their real value, and purchased them with the money of the company. That the said Whitaker claimed six shares in his individual right, and refuses to account for dividends upon the thirteen shares, until the complainant paid and satisfied a debt due said company, from said John M. Tilford, for lots purchased by him 'in said town of Courtland.
    The complainant insisted, that he held said thirteen certificates, exempt from said discount; and, at all events, that, if they were liable, the six shares which Whitaker bought of him, were likéwise liable; but claimed that none were subject to this set-off.’— He urged, that Whitaker, having purchased the six shares of him, at an under value, and with Spence’s own funds, held them in trust for them' and therefore, he prayed that the defendants be decreed to account with, and pay over to him, in proportion as thirteen is to one hundred and sixty; and that the six shares transferred to Whitaker, be surrendered to him, or the amount which said 'Whitaker’s shares would be entitled to draw, be decreed to him, out of the amount due said Whitaker.
    ' In his answer, Whitaker admitted the purchase of the land: — the laying off the town — sale of the lots — and the division of the stock into one hundred and sixty shares; nineteen of which were issued to John M. Tilford. He stated the amount paid on each certificate, and the subsequent calls to which they .were liable. He urged the exclusion of'all parol understandings and agreements, as if the same had been plead, and insisted upon the written contract (which he said'was plain and unambiguous,) with •reference to 1 Lie existing laws, as the'only legitimate mode of ascertaining the true, meaning of the parties:but, proceeding furthsr to answer, he denied that there - was any. understanding that, to build up the' town and force improvements, the certificates should be held by assignees, free from incumbrances; and, expressly said, that, though he was one of the leading members of the company, he never made any such agreement. As to his private opinion, he did not recollect, that, at the formation of the company, he thought on the subject at all; since then, however, he admitted, that having derived his impression on such subjects, from the laws of Tennessee, where he had previously lived, and where the law-merchant prevailed, he might have thought that the certificates would go into the hands1 of an assignee,” free from liability to the debts of the assignor; but, that acting for others, he was bound to consult counsel, who advised him, that by the articles of association, the assignee would stand in the same situation, with the assignor. He then set forth the purchase of 1‘ots by Tilford, to the amount of five thousand four hundred and thirty dollars — admitted the transfer of the certificates, and said that at the time of this transfer, Tilford also sold to Spence the lots he had purchased. - He admitted the duty of the-trustees to make an annual report of the dividends ; but said, that an unexampled pressure for money, together with the inability of the trustees - to make titles, prevented purchasers from paying for the, lots, and of course there were no dividends to declare. He then related the manner in which the trustees, with the consent of those holding a majority of the stock, availed themselves. of the provisions of the relief law of . 1821,' which resulted in a call upon the stock-holders for forty-seven dollars, upon each certificate.-— Then, for the first time, he learned that the complainant’s testator was the owner of Tilford’s stock, and that he then tolcl him', that the trastees would, hold said stock liable for Tilford’s debts. He said, that it was at the solicitation of John Spence, that he purchased the six' shares of stock, and to enable him to pay the instalment on twelve of the remaining shares; that for the'six shares, he gave five hundred and fifty-four dollars and sixty-four cents, or about ninety-two dollars and ninety-four cents a share, which he alleged, was about the rate at which stock had first been sold in the town of Courtland, after having been duly advertised. He said that one re- . maining share was offered to him, by Spence, at fifty-dollars; but, fearing that the stock retained would not be sufficient to pay Tilford’s debt, he refused to buy. He alleged positively, that he paid for. said six shares, out of his own individual funds; and said, that he had then collected but twenty two dollars and fifty cents,of the company’s money; and had paid for them, of his own funds, two or three hundred dollars. - He also denied withholding information from the complainant’s testator, and therefore claimed six shares in his own right. He stated the death and removal of several of the trustees — several matters calculated to darken the prospects of the company — the great exertions of himself and one Per- ' rine, to prevent losses, and secure advantages; without which he insisted that the stock Would have been far less valuable. He alleged the'extension of credit on the lots, the . reduction of the amount of sales, one fifth, by the operations of the relief law, which, together with the pressure of the limes, and the doubtful situation of many of the debtors, indtí- ' ced the trustees to forbear sueing: but said that he vigilantly employed the interval in getting new securities — the lots having so fallen in value, as to furnish but slender guarantees, and by his active exeiv tions to secure debls, that would otherwise have been lost, many of them were secured. He then stated a meeting of the board, in 1826, their proceedings, &c. and exhibited certain vouchers, as showed most satisfactorily what he did, and 1he situation of the business. Said that all the certificates livid been taken in, except those of the complainant, and others similarly situated. He admitted his refusal to settle with the complainant for said shares of stock unless he would pay, or make a deduction'for said debts of John M. Tilford. He alleged that Tilford and Clopper, his security, were both insolvent at the time said certificates were transferred to said complainant’s testator.
    Complainant’s answer (which it was agreed, should be-read asa deposition) denied that there was any understanding or agreement, that the certificates should go into the hands of an assignee, free from debts against the assignor; but said, that he considered the reverse to be the case. In this, Tilford and McKernan, the other defendants, answer differently.
    By the second section of the articles of association, it was provided, “ that each share shall contribute equally' to the payment of said land, and all other expenses of said Company, and shall entitle the owner thereof to an equal proportion of all profits and proceeds of ibis joint stock and property — the payments to be made on each share, Sec.; and any share on which any payments shall not be duly made, Sec. shall be forfeited for tbe^benefit of the joint stock.”
    The third section provided, that “ certificates for each share shall he issued and numbered.”
    The fourth also provided, that “ said certificates should be assignable, and for evidence of such assignments, then followed these words — '“the assignees of the certificates of stock, and the heirs and representatives of stockholders shall respectively be entitled to all the benefits and privileges, and subject to all the penalties and conditions to which the original parties thereto are entitled, and liable.”
    The certificate, after stating what had been paid, and the number of the certificate, proceeded to provide that John M. Tilford, his assignee or representative should be entitled to all the benefits of the" share, upon the production of the certificate, provided the said Tilford, his assignee or representative should well and truly pay the instalments, Sec. : and closed with a promise on the”part of the trustees to pay to said Tilford, his assignees or representatives, according to the articles of association, all dividends, Sec.

    A.reference having been made to the master; and most extensive proofs made, an account was taken, by which it was established that the value of the nineteen shares sold to Spence,in 1826, was four hundred and fifteen dollars each, making the sum of ser-ven thousand eight hundred and eighty-five dollars. Again'st this, the master allowed to bé credited against complainant, five hundred dollars, counsel flies, in the present suit; and twenty-five hundred dollars, claimed by Whitaker, as compensation as trustee,

      Á final decree was rendered on -bill, answers, exhibits and testimony, whereby the sum of fifteen hundred debars were allowed to Whitaker, for his services“five hundred dollars to counsel,- as fees: the sale to Whitaker was also decreed valid ; and the Chancellor admitted the off-set of the Company’s debt, to go against the thirteen shares.
    , The Reporter has not believed it essential to embarrass and confuse this case, by'adverting to more of the facts than are above stated; believing that those set. forth are sufficient to put the reader in possession of every item embraced- in the opinion.— In fact all the testimony; exceptions, and other items;, contained in the many hundred pages of this extensive record, have been waded through in research after all the important .facts;«there contained ; and be lieving ihat no more are necessary to a history of the cause than those above, none others, are submitted.
    The case was argued by Mr. Thornton, for the plan tiff in error; and by Mr. Ormond, for the defendant:
    It was contended by Mr. Thornton—

      First — That the sale of the six shares to Whitaker; ivas void. It was a purchase by the trustee, of the trust fund ; and if not void for that, cause alone, was - so in this case, under the circumstances disclosed by “the record: and there were cited, the cases of Le-catt vs. Sallee, see page 115 of this volume; and of Green vs. Winter, 1 Johnson’s Ch. Rep. vol. 1, p. 27; lb. 394 — lb. vol. 7. p. 257, 258.

      Second — That, the allowance of the set-off, of Til-ford’s debt, for the purchase of the lots of the com--pany, against the certificates, was illegal and improper. — Aikin’s Digest, 328 ; 3 Dallas, 505, 506; 2 Johnson’s Ch. Rep. 156; 3 lb. 358; 1 Porter, 148.

      Third — That the allowance to Whitaker was im~-proper. — 1 John. Ch. Rep. 2?; Ib. 527.

      Fourth — That the allowance of a counsel’s fee was wrong.

      Mr. Omond, for the defendants.
    There are two leading questions in this case, which I will argue seperately.
    1. Have the defendants a right to setoff the debt due them, from Tilford against the complainant’s testator, his assignee? I will- endeavor to maintain that they have that right upou the statufé authoriz>-ing assignments. — See Digest, page 328, section 6.
    The certificates of stock in this case, are for the payment of money, subject to no other contingency, than the uncertainty of the dividend which might be declared, and suspending the right of action until that time. It is admitted, that this quality would prevent their being negotiable; but negotiability, it is plain, was not in the contemplation of the legislature, as was determined by this Court, in the-case of Smith vs. Anderson, decided at ,the summer Term, 1831.
    The statute of 1807 was, in effect., the statute of Anne, and made such instruments as were asigna-ble under it, negotiable. That, however, was repealed, and the statute just cited, enacted — the whole object of which manifestly was, to vest the legal title in the assignee, subject to stich off-sets and discounts as existed, previous to notice of .assignment, against the assignor.
    But, it is insisted, that, by the articles of association, which are referred to in the stock, the Court-land company boünd themselves not to set up an equity, which they might have against the original stockholder, against the stock, in t-hfe hands of the assignee ; and the fourth clause of the articles is-relied op, for this purpose. That clause makes the stock assignable, and concludes by saying, that “the assignees of stock, and the heirs and legal representatives of stockholders, shall respectively be entitled to all the privileges and benefits, and subject to all .the conditions and penalties which the original holder was entitled or subject to.” It seems to me, that language cannot well be imagined, stronger than this, to place the assignee in the same condition as the assignor, which is all I am contending for.
    The gentleman on the other side, however, supposes, that the association of gentlemen, who were about forming the Courtland company for the purpose of building a town, designed to make the stock, in the hands of an assignee, negotiable, and not subject to the debts of the assignor, contracted with the company, previous to assignment. If this was their design they, have'been very unfortunate in the use of language. There might be some reason imagined, though none .appears on the paper referred to, for giving this quality to the stock, in the hands of an assignee; but what possible motive could exist, for absolving the heir or legal representative of a stockholder from-paying the debts of his ancestor, or'testator, when they presented the stock, and demanded the dividend due upon it? Such folly as this cannot bo imputed to them, without the clearest proof of such an jutenlion. And yet. the very .clause, and the only one relied on to provethis, is one in which the assignee is coupled with the heir and legal-representative. A much more probable sup? position is, that the questiop I am now considering, was not in their contemplation, at all. And the law .entering into, and operating on the contract will subject the complainants to the payment of the debt of Tillo rd.
    If I am wrong, in the supposition that this stock .was assignable, under the statute, tb'en, unless I am mistaken, as to the import of the fourth clause of the articles before referred to, this is a chose in action at common law; and if so, it it clear, that the assignee takes it subject to all the equity which existed ber tween the original parties. This was determined in the case before referred to, of Smith vs. Anderson, in which, the Court set up a latent equity against Anderson. — For this, also, seethe case of Norton-vs, Rose, 2 Washington 233; and Picket vs. Morris 255, same bopk; 2 John. Ch. Rep. 441, and 479; 1 Mad. Ch. 544, 7, 8.
    This case has been assimilated to a partnership, in which, by the original articles, any partner was allowed to retire and substitute another in his place.— It is admitted that there is some resemblance; but, in such a case, would not ihe partner coming in, stand in the shoes of his predecessor, and if he owed a debt to the firm, would not the partner so corning in, upon a dissolution, be compelled to allow a debt which his predecessor owed the partnership.
    In this case, the debt due by Tilford, was a bebt .due for the purchase of lots in the tpwn, and was,# part of the very fund out of which the dividend was to be made. It was, if the analogy be good, a debt lie the partnership. For the law, in such a case, see 5 John. Ch. Rep. 417.
    If the interest in one partner in a firm, were sold under a judgment, for his individual debt, would the purchaser acquire a right to absolution, for any debt such partner might be due the firm?
    The other question in this cause is the right of Whitaker to, retain the six shares of stock purchased of Spence. The facts of the case, so far as they re? late to this point, are briefly these: Til ford was the owner of nineteen shares of stock in the Court-land company, and, being much embarrassed, and owing a large debt to Spence, gave him a power of attorney to sell or dispose of it. The Courtland company, as they had a right to do, made a call on the stockholders to pay an instalment, on the stock, to enable'thetn to settle the debt due the government. Spence appeared, in obedience to the calk and refuV .sed to pay any money; but proposed to Whitaker, to sell him six of the shares. Whitaker purchased, at a price which paid the call of the company, on twelve of the remaining shares.
    It, is contended, that this purchase is void, from the fact of - Whitaker being one of the trustees.
    It, is admitted, that in England, and in some of the States of the Union, the law is settled, that, if a trustee purchase at his own salé, it will be set aside, at the instance of the cestui que trust, without showing any fraud or unfairness in the transaction; and, although the trustee may have given a full price.— But, in this State, the law has been settled different?

      This Court, in a caso reported in 2 Stewart 47, decided that a fair purchase by a trustee, at his own sale, would not be disturbed. The rule is also well settled, both in England and the United States, that if t'he cestui que trust, -with knowledge of the facts, consent to the purchase by the trustee, or afterwards approve-or acquiesce in it, it will not afterwards be set aside.
    In this case-, the sale was made by the cestui que trust, himself, with full knowledge of all the facts, ’and for what, at that time, was a fair price: and, to permit him to object to it, after the lapse of time, and when circumstances, not then foreseen, have added to"'the value of the stock, would not only be against the adjudged cases, but contrary to equity and good conscience.
    It is not, however, admitted, that the rule applies to such cases as this. The legal title to the stock was notin the trustees, but in the stockholders, who alone had the power to sell. The trustee, in this instance, was merely passive; and the reason of the rule fails when it is applied to a case like this. — See 13 Vesey,jr. 601, and 1st Peter’s Circuit Court Reports, 368.
    But if this sale be void, for the reason alleged, what right has Spence to complain of it. In 1821, as the agent of Tilford, he sells the shares in ques- ' tion, to Whitaker, and if an injury was done which this Court will redress, it was an injury to Tilford, and not to Spence, who was á mere agent.
    There is no allegation in the bill that this right of action has been transferred to him ; nor would it avail any thing if there was. as such a-right is not susceptible of assignment or transfer. It will not, I presume, be contended that, because, afterwards, in 1826, be acquired the legal title to the remaining thirteen shares by assignment — that he thereby acquired a right to be compensated for an injury dope to his assignor in a different transaction, and in relation to a different subject, five years previous. Tilford is a mere nominal defendant to this bill: to entitle him to relief he should be complainant,. If, therefore, the transaction be void, as to Tilford, there can be no decree, so far as the six shares are concerned, in this action.
   Saffold, C. J.

The facts, material to the enqui-ry, .according to the views we have taken of the case, present the following questions--the determination of which is considered sufficiently decisiveof the controversy.

1. Was Tilford’s debt due the trustees of the Couitland Company, admissible as a set-off in their favor, against the executor of John Spence, to whom Tilford had transferred his certificates of stock in the Company; or was there,error in the allowance thereof by the decree of the Circuit Court?

2. What was the effect of the sale of the six certificates of stock to Whitaker, while he acted as trustee and treasurer of the Company — was it valid as decreed by the Chancellor below, or was it void on the ground of either actual or constructive fraud.

3. Was the allowance of one thousand five hundred dollars to Whitaker, for his services as trustee and treasurer, equitably due, and properly alio wed ?

4. Should the charge of .five hundred dollars, as a fee to the defendant's attorneys, for defending this suit, have been allowed against the complainant ?

The elaborate investigation which the subject appears to have received from the Chancelor in the Court below, and the respect I entertain for his opinions, together with the learned and satisfactory argument, of which we have liad the benefit in this Court, from the counsel on each side, entitle the case to our mature consideration.

1. The first question proposed for consideration, is important in principle and not. free from novelty or difficulty. The true character and legal effect, of these stock certificates, in the hands of a bona fide assignee, must depend on the law and usage, peculiar to such securities, in conjunction with the articles of association, from which they emanated. It is conceded by all, that they are not of the technical character of any of the instruments, specified in the statute concerning “bonds, notes,” &c. But, it is contended, that they are embraced by the more comprehensive words, of “ or other writings, for the payment of money or any other thing;” that* by virtue of this statute, the grantors or makers of the certificates, when sued thereon, by an assignee are entitled to the same matters of defence, which are provided for obligors or payors, in case of assigned bonds or notes — among others, to the benefit of any set-off against the first holder of the certificates.

It may be useful to speculate a moment, on the consequences of the principle contended for. The same individual might be the first or subsequent holder of many certificates, a separate one having issued for each share. Tilford held nineteen certificates, which he could have assigned to nineteen different persons. Had he held them as assignee; so far as depends upon the articles of association; and the equity of the lien, they would have been no less chargeable with his debts, for lots purchased of the company. In either case, the assignments by him, might have been made at as tíiativ different times as he' had ^ t shares, and there were changes in the amount of profit or loss on the stock: so that the amount due thereon, at the time of assignment would have been different, on each several certificate. If the profit on the stock, be claimed as a set-off, on the ground, ¡of its being an interest which the debtor has assign-' ed, as in case of a bond, note, &o., the claim carl extend only to so much as had accrued at the time of the assignment, and interest, damages or, the like, which would accumulate as a legal consequence: for no right to any thing more, had ever vested;in the assignor — consequently he could never have assigned more. Then, how could ihe set-off, claimed against the former holder, be apportioned among the several assignees?

If the claim be sustained, with reference to the the value of the stock, when assigned, or any other time, the assignor proving insolvent, in justice and equity, it would seem, that each assignee should contribute his proportion in discharge of the Hen. If more has been recovered against one, how is he to coerce . contribution from the others? There is no privity between them. The fact is also material, in this view of the subject, that the accruing profits on the stock, according to the articles uere to -be annually paid over to the respective holders of the certificates : the necessary consequence of which was, that the right to the dividends, as they periodically accrued, vested directly in the holders of the " ' certificates for the time being; and the assignors, never having had any title to them, they coaid not be set against their debts.

In these several respects, I think there is an obvious difference between these certificates and any of the-instruments, intended to be embraced, by the statute referred to, whiqh entitles the maker to the benefit of any payment, discount or set-off, made,had or possessed against the payee or obligee, before notice of the assignment.

Could it be said, that all the profits to arise on this stock, had accrued before the assignment, the fact would be immaterial to the principle. The certificates were equally assignable before, and the supposition, that they were so assigned, demonstrates the' objection to the principle. But. the fact, that profits subsequently accrued, in this case, may be assumed,, in as much as Whitaker the active trustee and treasurer of the company, after the right had been transferred to Spence, estimated the value of the stock at only about one fifth of its subsequent value.

I recognise the principle, that it is only by statute authority, that the payor of a note, or obligee of a bond, when sued by, and in the name of an assignee, can set-off a demand against the payee or obligee.— Whether the statute of Anne introduced a new principle, by attaching to promissory notes, payable to bearer, negotiable qualities, or whether the statute was, in this respect, only declaratory of the common-law ; yet, in either view of that mooted question, statute authority is necessary, to enable a defendant,, when sued by an assignee, who has a right of action in his own name, to avail himself of a set-off, due from the assignor, or any other, not a party to the suit. In this respecta set-off stands on a different principle from failure or illegality of consideration, or any other vice in the contract. • In cases of the latter kind, the defence is available, at common law, in an action by the assignee, if he received the negotiable instrument after due, because non-payment at maturity furnishes a ground of suspicion : or if he received the security before due, having actual notice of such ground of defence.

But this right of defence does not, at common law, apply to sets-off which do not impugn the validity of the instrument sued on. It is true, that an as-signee who sues upon a chose in action, which, by law, is < not negotiable, or assignable, so as to enable him to sue in his own name, is subject to be set-off, by a debt againsMhe assignor; but it is so, because the assignor is the plaintiff in the action, and the assignee is only the cestui que use. There, the debts are mutual between the plaintiff and defendant.

But, even in such cases, where the defendant ol> tains the set-off, after notice of the transfer, law, as well as chancery will protect the equitable interest of the assignee, and disallow the set-off against, him.

I presume it will not he contended, that the assign- or of these certificates could, after the assignment, maintain any action upon them, in his own name, either in law or equity.

The case of Norton vs. Rose, which is supposed by the counsel for the defendants, to be decisive in favor, is believed to sustain no principle, inconsistent with the views I have advanced. The Court there held, that an assignee of a bond, under the statute of Virginia, though for a valuable consideration, and without notice, took the same, subject to all the equity of the obligor, against, the obligee. In that Slate a statute exists, similar to ours, authorising the as-signee to sue in his own'name; but it contains a proviso, that in such cases, the defendant shall have the benefit of all just discounts, which he can prove before notice of such assignment, given to him. The proviso, however, was considered as having no other effect in that ease, than to show that the statute did not render the instruments embraced by it, negotiable, by putting them on the footing of inland bills of exchange, as was done by the statute of Anne.— But it was perfectly clear, and so considered by the Court, that the bond, in that case, was of the description of securities contemplated by the statute, and thereby rendered assignable by indorsement, but not negotiable, so as to deny the defendant the benefit of discounts, either legal or equitable, before notice of the assignment.

This latter is the only difficult question on the point now under consideration. It is whether our statute applies to instruments such as these stock certificates. If it were conceded that it does, in all respects, to the same extent with bonds or promissory notes, the claim of set-off could not be resisted. This being the main question, but few of the .authorities relied on by the counsel can materially aid our de-cisión; and for this reason they will receive less consideration than they would otherwise require.

The opinion of this Court, in the case of Smith vs. Anderson, is not in point. The set-off there claimed and allowed was against promissory notes, in the ordinary form, between individuals, and given for definite sums of money, payable at fixed periods. The matter offered as a set-off, was money actually paid for the use of the payee in the notes. From this no' tice alone,,it sufficiently appears to be inapplicable to my present enquiry. The question is altogether different, whether certificates of stock in this and similar associations or companies, do not constitute a different class of securities or property, which whether technically negotiable or not, as bills of exchange and the like, are equally exempt in the hands of a bona fide subsequent holder, ‘against any claim of set-off against a prior holder.

The decision must materially depend on the terms of the articles of association, under which 1he certificates issued, and the nature and object thereof. That it was competent for the Company, by their articles, to have retained alien on the certificates, as well as on the lots sold, to secure the purchase money for the. latter, can not be questioned; yet it may be doubted, if they could have done so with good faith, without expressing the lien in the certificates, as they did in the title bonds, or giving it publicity in some other way. The express provision for the lien in the bonds, and none in the certificates, furnishes a strong implication that it was not retained in the latter, or so intended. If it be farther found that the articles have expressly retained the lien on the certificates for other claims or demands, and none for the price of lots to be sold, this will warrant a still stronger inference against its existence in the latter case.

The articles (see 2d,) provide that each share, shall contribute equally to the payment of the lands to the general government, and all other expenses of the Company, and shall entitle the owner thereof (by assignment or otherwise) toan equal proportion of all profits and proceeds of the joint stock', The payment on each share shall be made on such notice and at such times and places, as the trustees* shall, by their rules, prescribe ; and every share on which any payment shall not be made, when required, shall be forfeited to the Company. (3d ) — The trustees shall issue certificates for"each share. (4th.) — The certificates shall be assignable, &c. The assignee, and the heirs and representatives of stock holders, shall respectively be entitled to all the privileges and benefits, and subject to all the penalties and conditions, of the original parties.

Much reliance is had on this fourth article, and the argument deduced from it, that it places the heirs and representatives of the stockholders on the same footing with the assignee, and the former cannot be in' a' better situation than the ancestor,or less liable to the set-off. To this it is considered a sufficient answer to say, that the provision requires only that the heirs and representatives of the original stockholder shall be subject jtb all his liabilities, and the heirs and representatives of an assignee subject only to all his; and in either case, the responsibility shall extend alone to the charges, “expenses” and demands provided for by the articles, as entered into by and between “the original parties;” but that the assignee, his heirs or representatives, or the stock held by the former at the time of his death, should be chargeable with the price of lots purchased by the immediate or any remote assignor of the certificate, seems never to have been contemplated by any clause or sentence in the articles.

It would be worthy of consideratiqn, whether, if the stock be subject to set-off by the debt of the original assignor, it would not be equally so by the debt of the last or any intermediate assignor. The latter would have been no less the "owner” or “ holder” of the stock than the former. It surely could never ha\-e been intended to embarrass the stock by incumbrances of-this kind, which must have prevented their circulation.

The eighth article directs; that, after the town shall have been laid off, the trustees shall sell at public sale to the highest bidder, at such times, and "on such terms as they may think proper, the lots therein,” not included in any reservations or donations they may have made.

The 10th requires the trustees to keep register books shewing the state of the funds oí the Company, the expenditures,debts due to and from the Company, and monies in their hands, which book shall, at all times, be open to the inspection of every stock* holder. No right of such inspection is secured to others who may be about to purchase the stock.

Article 11, directs, that outofthe proceeds of sales, the trustees shall retain what shall be necessary to pay the "expenditures,” which have been made in the business of the Company, and “the debts becoming due from the joint, stock, to pay (the government) for said lands, or for other purposes, and which can hot be provided for in due time out of other funds.” Here is no recognition of the right to retain proceeds for the payment to the Company for lots sold, but the contrary is implied.

The 12th article requires, that at least once in every twelve months, on the first day of November, annually, the accounts of the Company shall be scf stated as to shew what is due to each share, and the same shall be paid to the “ owner of the certificate,” ori the production thereof, “ unless, said certificate shall have been forfeited according to these articles."’ This appears farther to preclude the right to retain- or withhold dividends, to be offered as sets-off against the debts of & former “owner” of the certificate of stock.

The 14th article provides that the owners of said certificates, whether original holders or assignees, and their representatives respectively, shall be entitled to all actions 'at. law and equity for a breach of these articles or any part thereof, as fully “ as if each oí said owners were here, by his own proper narpé made a party to this agreement.” Then, as the as-signee and his representatives, after assignment, aré to be treated and regarded in the same light as if they had been the original holders of the certificates, debts Or demands against other individuals, can not be available as sets-off against them.

I have noticed the substance of every piovision in the articles which appears to have the least bearing on the question-under consideration ¡ and they apJ pear to me to exclude the idea of any lien upon, or right to set-off any portion of the dividends on assigned certificates, in discharge of debts due the Company or their trustees, from foi-mer holders, for the price of lots purchased by them. This effect and intent I.think, are rendered the more evident,from the fact, that the trustees, in the execution of their authority¿ to urescribe the terms on which the lots were to be sold, (see 8th article,) required bonds with personal security, and by their title bonds to purchasers of lots, fexpressly retained a lien on them, for the payment of the consideration. In these respects, no difference Was made between stock-holders' and others who became purchasers; they took the same security from holders of stock as was required from strangers, and-We may presume a lien, or right of set-off against the stock was deemed unnecessary. It would seem to have been a rational conclusion, that the purchaser’s bond, with security deemed sufficient at the time; together with a- lien on the lots, for which the debts were owing, (the lots in most instances being purchased for the purpose of being improved,) would have furnished ample security. That such was the design'ofthe trustees, I can not doubt; but whether -it should prove so or not, they have provided no other security. While it must be conceded that the Company, or trustees,, had no power to adopt rules which were repugnant to the laws of the land; and that, being incorporated as a body politic, they could act only as an individual, or a voluntary association of individuals; yet they had the undoubted right, in their contracts, to stipulate such terms, and prescribe such rights, forfeitures and conditions, as were not prohibited by law: consequently, they had aright/ while adopting the articles for their government, and issuing the certificates for the stock, to have provided a lien upon them for debts due the Company from the original or any subsequent stock-holders, and having declined the insertion of any such stipulation, in either instrument, they could not afterwards claim it.

On principles of analogy, the case of Mandeville v. The Union Bank of Georgetown, may be regarded as a strong authority in this case. In that case, Mandeville had executed a promissory note to C. J. Nourse or order — negotiable at the Union Bank of Georgetown — payable at the Potomac Bank in Alexandria; the same having been made in the county of Alexandria. The note was discounted in the Bank in which it was expressed to be negotiable. When sued upon it by the Bank, Mande ville offered'to set-off, anote and acceptances of Nourse, of subsequent date, against his own note, upon- which suit was brought by the Bank as indorsee.- In support of the set-off, it was contended, that as the contract was subject to the laws of Virginia, which allowed the defendant to set-off against the assignee of a promissory note, any just claim which he had against the' original payee before notice of the' assignment, the defendant was entitled to the benefit of this, defence. Chief-Justice Marshall delivered the opinion of the Court, and said it was entirely immaterial, whether the question was governed by the laws of Virginia, or of Maryland. By neither of them could the discounts claimed by Mandeville be allowed: that by making his note negotiable in Bank, he authorised the Bank to advance on his credit, to the owner of the note, the sum expressed on its face: that it would "be á fraud on the Bank, to set up off-sets against the note,in consequence of any transactions between the-parties. - These off-sets were waived, and could not, after the note had been discounted, be again set up.

In one respect, at least, the objection to the off-set in that case, waá less forcible than in this, in that the note against which it was offered, was for the uncon- , ditional payment of a sum certain, on a fixed day.— Here, the "amount 'was contingent; payable at different times, and on condition that calls for payment to the United States on the lands, should be promptly met by the holders of the certificates for the time being; otherwise the same to be forfeited. Theintention also to authorise the negotiation of these certificates was no less manifest, than it was in respect to the note drawn negotiable in Bank; and the tendency to defraud the assignee, by the claim of a set-off, about the same in either case. .

We do not perceive the difference, in principle, so far as this question is concerned, between these ■ certificates, and certificates for stock in a bank or other incorporated company, which, by their charter, are made transferable by assignment. Certificates for bank stock, are not usually declared by the charters, to be negotiable, nor the right to set off demands against the assignors, to the prejudice of the assignees, expressly denied — yet^such right is believed never to have been sustained. The idea seems to have prevailed universally, that the allowance of such sets-off was incompatible with the nature and object of such institutions; and we consider the same views alike applicable to associations of the character of the one in question.

The assignment of these certificates of stock has been attempted to be assimilated in argument, to an assignment by a copartner, of his interest in the concern — in which case the assigned interest would be subject to be discounted to the amount of all debts existing against the assignor, in favor of the other partners. To this argument, it is sufficient to reply, that an ordinary partnership is so far different from this association, as to destroy the force of any analogy between them, in reference to this question : that it is so, from the circumstance alone, that by law, such partner’s interest is not assignable, so as to constitute the assignee a partner, in lieu of the assignor. It is not to be doubted, however, that, partners are competent, by the terms of their articles, to make valid ¡stipulations to this effect, and render such binding on themselves, as this company have done, by the terms of their association ; with the nature of which, such assignments are far more consistent.

After the views already taken of the case, the remaining questions may be briefly disposed of.

2. In leference to the second point, it is to be observed, that Whitaker was-the chief agent in all the company transactions — that he was the most active trustee, and also the treasurer — that his situation must have given him an intimate knowledge of the state and condition of the affairs of the company— that no other could have any satisfactory knowledge concerning them, unless derived through him. That ■ Spence, after he had acquired an interest in all Til-ford’s stock, by having received possession of the certificates, and a power of attorney to represent them, and sell them for his own benefit; and this, for a valuable and sufficient consideration, could not ascertain from Whitaker the true situation of the concern, or any thing near the value of the stock. On the contrary, that Whitaker had failed to keep a register of the accounts, as, by the articles, he was required to do; and of which, if kept, Spence, as a stockholder, would have been entitled to an inspection. This, at least, would have shewn him the amount of credit and debit, for and against the company; and, consequently; the data from which an estimate of the value of the stock could have been formed. For the want of correct information, he was induced to believe, that the shares, which afterwards proved to be worth four hundred and fifteen dollars, each, were only of the value of ninety-two dollars and ninety-four cents, and to sell sis of them to this trustee, at this grossly inadequate price. The unequal, .unjust and oppressive bargain, was the result, mainly of Spence’s erroneous impression, that Tilford’s debt, (nearly equal in amount, to the value of the certificates,) operated as a lien or incumbance on the stock, which Spence held, and part of which he then sold to Whitaker. This was at the time when the call was to be met, by the stock-holders, ‘for money to pay the government the original land debt — when a failure to pay, would produce a forfeiture of the stock, and when Spence was under the necessity of relying, for the means to meet the call, on the dividends of the stock, or a sale thereof.

The important fact here alluded to, and which cannot be without its influence on this point, is,that this erroneous estimate of the value of the certificates, and the idea of the incumbrance upon them, were created, and strenuously insisted upon by Whitaker;who, being the trustee, had a much better opportunity of knowing the true value, than Spence, or any other, and, in whom confidence had been reposed, for this purpose, and for his. correct management of the same.

These circumstances appear to present a case, to which the principle, that a trustee, in whom faith and confidence have been reposed, and whose agency imparted to him a more intimate knowledge of the condition and value of the subjects of the trust, than the cestui que trust, or others, could possess, and who has taken advantage of his superior knowledge, to force an unequal bargain, is peculiarly applicable, on the ground of either constructive or intentional fraud. It maj be, that stock had previously sold at only the same rate, the sales, perhaps, effected in the same way; but, it cannot be maintained that a fair price was given by Whitaker — but the contrary fact, that he purchased at much less than half the value, is most manifest.

Admitting the principle, that in such cases, the subsequent approval or assent of the cestui que trust, or his ratification of the sale, will remove the objection of fraud; yet, the argument, in this case, that Spence’s prior approval and assent, the contract haT ving been made with him, should, have the same effect, cannot be sustained, for the obvious reason, that it was in effecting this purchase, that Whitaker availed himself of his superior knowledge and power; to secure the' advantage complained of — an objection, which has never been waived. We are of opinion, that, whether the evidence of artifice, misrepresentation and fraudulent design alone, would be sufficient to avoid and annul this contract, that these circumstances, existing between a trustee and cestui que trust, are amply sufficient, according to the current rules of decision, in’ England and America, and which have, in several previous cases, been recognis-ed by this court.

We, therefore, on the ground, that the sale of the six shares from John Spence, as attorney in fact, for Tilford, to Whitaker, was fraudulent and void, declare a rescission of it.

That Spence, at the time, acted in the capacity of attorney for Tilford, is considered immaterial, as the former had previously acquired the beneficial interest in the certificates, and then held an equitable ti-lle to them.

3. On the third point, it is sufficient to say, that Whitaker, having been the active agent as trustee for all the company, while the members generally, were not required to render any personal services — * and', especially, for- the reason that he also served the company as treasurer; a duty confided to, and required of him alone, his claim, in this respect, is distinguishable from the claim for personal services, by ordinary trustees, or partners in trade. — That, in justice and equity, he was entitled, to reasonable compensation for his services ; and, as it does not appear, that the compensation allowed him, by the decree of the Circuit Court, was exorbitant or unreasonable, the decree, so far as relates to this allowance, is affirmed.

4. As respects the allowance of the five hundred dollars, as a fee against the complainant, for the defendants’ counsel, in this case, a consequence of our decision on the two first parts, is, that, however just the claim, of the counsel to this amount of compensation, it is no ' charge against the party who was compelled to sue, and against whom they were interposed.

• The result of these views is, that the decree of the Circuit Court be reversed, in relation to the points considered, except so far as it allows the fifteen hundred dollars to Whitaker, for his services, and in this, that it be affirmed. That this Court, having’the necessary data, will proceed to render such decree as the Circuit Court should have rendered : therefore, the clerk of this Court is directed to compute the amount due the plaintiff in error, accord-' ing to the principles of this opinion, and prepare a decree accordingly, and charge the defendants in error with all the costs of this Court and the Court below.

Hopkins, J., not sitting.

       Alk. Dig. 828

       2 Wash 298

       9 Cranch, 9


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    DeSYLVA versus HENRY.
    QUESTIONS IN THIS CASE.

      Upon defects in a writ of error.

      As to citation.

      As to a division of one claim into several actions.

      As to recovery of money paid upon a note, but not credited thereon.

      As to an off-set.

    1. The omission to set out, in a writ of error, the particular day on which it should be returned, is cured by the statute of amendments.
    2. It is no cause for the dismissal of a writ of error, that sureties to a bond, for an appeal from the judgment of a justice of the peace, are not joined, it not appearing that the judgment on appeal is against them.
    3. Appearance by counsel, and argument on the merits, cure the want of a citation.
    4.That a party bringing several actions, has divided his claim into sums under twenty dollars, so as to obtain the benefit of his own oath; can be taken advantage of, only by pleading the pendency of the first suit, in bar to those subsequently instituted.
    5. An action will not lie, to recover back money paid in part liquidation of a note of hand, but not credited thereon, where suit has been brought upon the note, and judgment recovered — no effort being made on the trial, to obtain an off-set of the amount paid.
    6. A defendant, holding an account against a plaintiff, may use it, or not, on the trial of the suit against him; or, make it the ground of another action, as he pleases.
    This was originally a suit, by the plaintiff in error, before a justice of the peace of the County of Mobile, where judgment was rendered for the plaintiff ; and an appeal taken to the Circuit Court, and the judgment of that Court awarded for the defendant.
    On the trial, it was in proof, that the plaintiff had paid to the defendant, the sum of ten dollars, which was intended to be applied to the partial payment of a note, held by the defendant against the plaintiff, but which was never so applied; and that the defendant afterwards sued the plaintiff on the note, and recovered judgment thereon.
    Another portion of the claim of the plaintiff was founded on an account, for eight dollars.
    Argued by Mr. GoldtJmaite, for the plaintiff in error ; and by Mr. Stewart, for the defendant.
   Hitchcock, J.

Bernard De Sylva brought two suits before a magistrate, in the County of Mobile, against Alexander Henry — one for eighteen dollars, on an account, and one for twenty dollars, on another account, and obtained judgment; from which the defendant appealed to the Circuit Court of the County.

The two cases were taken up by the Court, together, and the defendant pleaded non-assumpsit, and former recovery. At the trial, a bill of exceptions was taken, which presents the facts of the case, as they appeared before the court below; and, upon which the Court rendered judgment, in both cases, for the defendant.

The first case was brought here, by writ of error, and entered at the January Term, 1834, on the docket ; and, at this term, after the plaintiff’s counsel had argued the case, on the merits, the defendant’s counsel, as a part of his argument, in defence, insists, that the writ should be dismissed — first, because there is no day stated, for the return of the writ, it being made returnable the -Monday in January, 1834; secondly, because the securities of Henry, who took the appeal, are not made co-defendants, here; and, thirdly, because there is no citation.

As to the first ground, we think it is cured, by the statute of amendments. As to the second, we think the writ is right: no judgment was ever rendered against the securities to the appeal bond; and they are-not parties to the suit. And, as to the third, we yfhiri-k that it is too late, after a party has appeared, by cotins^l, and after argument has been had, on the merits, t¡o allege the want of a citation. The party must be considered as having made a voluntary ap'pearance,, which supersedes the necessity of a citation.

As to the merits of the case, it appears, that the plaintiff was examined on oath, in each case, and swore, that, in the first case, he had paid the defendant ten dollars, to be applied to a note he held against him, which, he alleged, he had not done; but, that the defendant had obtained judgment on the note, without allowing the credit; and, that the defendant owed him eight dollars, for his passage to Fish River.

As to the second suit, he swore, that the defendant owed him fifteen dollars, for taking, at another time, him and his sister, and some bales and boxes, to Fish River.

The defendant produced the record of the judgment in his favor, on the note above alluded to, and proved, that the plaintiff was defended by counsel, on the trial.

The counsel for the defendant has made a point, as to the propriety of this bill of exceptions being considered a part of the record. The bill of exceptions appears to be certified, as a copy of an original bill of exceptions, in these two cases, which had been, before this, in the Supreme Court; and which was dismissed.

The certificate of the clerk of the Circuit Court, appended to this record, is, that “ the foregoing is a correct copy of the record and proceedings remaining in the. office, in the case of De Sylva vs. Henry." And he further certifies, that the original ceptions, taken and signed in the cause, (ap^^re^, also to another cause, between the same sent up to the Supreme Court, on a writ of error, in the same cases, taken on the 20th August, which writ of error is certified by If. Mimclerk of the Supreme Court, as dismissed, and the certmP cate thereof is hereto attached.”

The defendant’s counsel insists, that this copy, certified by the clerk of the Supreme Court, forms no part of this record; in as much as he has no authority to certify any such paper.

By reference of the certificate of the clerk who sent up this record, it. will be seen, that he certifies, that “ the foregoing, is a correct copy of the record in the cause.” — 'This embraces the whole record; and although he goes on, to make a further statement, as to what became of the original bill of exceptions, and which sufficiently explains, how it happens, that he has used the copy sent by the clerk of the Supreme Court — yet, it is not to be inferred, that he has relied upon that copy.

The Bill of exceptions is a part of the original record, and should be recorded, and for aught that appears, the clerk made this transcript from the record; indeed, that is the legal infereence to be drawn. The reference to the certificate of the clerk of the Supreme Court, is not to the one appended to the copy of the bill of exceptions, but to that certifying that the case, as it first came into this court, had been dismissed : all this part of the clerk’s certificate is surplusage. But it does not invalidate that part which alludes to the whole record. The bill of exceptions is therefore properly before the court.

The counsel for the defendant, insists that the Court below ought not to have received the evidence of the plaintiff; as the law does not permit parties to split up their accounts so as to bring them down to twenty dollars, and thereby get the benefit of their own oath. This is certainly true, but to prevent this, it is necessary that the defendant should plead the pendency of the first suit in bar of the subsequent ones. The pleas were non assumpsit and. former recovery. The fact that the two cases were taken up together, does not alter the case; they were treated in all respects as separate suits, and it does not appear that any objection was made in the Court below, to the competency of the plaintiffs testimony.— Neither of their pleas presented this point to the Court below. The first plea put in issue, the merits of both suits, and the second plea could only avail the parties on the second suit, after a recovery was had on the first. At any rate he had a right to be sworn in the first case, which is the one now before us.

As to the facts then sworn to by him, it is clear, that, as to the ten dollars, paid on the note, and not credited, he cannot recover it back. He should have made this a part of his defence, when sued on the note. But, as to the charge for the passage to Fish River, this was only matter of set-off; which he might have made a part of his defence, or not, as he chose.

For this, the Court below should have rendered judgment, for as much as the services were worth * and, for this error, the cause must be reversed : and, in as much as the sum is not ascertained, by contract* but must rest in the judgment of the Court below* who is substituted for the jury* the cause must be remanded.


author: Hopkins, J.

text:
    PECK versus HOLCOMBE
    QUESTION IN THIS CASE.

      Relative to the construction of the act of 1829, on the sulyject .of tax collectors.

    1. Where a judge of the County Court, under the act of 1829, declares the office of tax collector vacant, such declaration is a judicial-, conclusive act, and can not, while unreversed, be questioned by proof that the tax collector had his bond ready, but that the judge was absent.
    2. The collection of taxes by a tax collector, after the office has been declared vacant under the act of 1829, is .void.
    This action was instituted by Peck, before a justice of- the peace of Jefferson County, to r'ecover the sum of twelve dollars and seventeen cents; money illegally collected by the defendant, as a 'tax collector.- A judgment was rendered, before the justice, for the defendant; "and on appeal to the Circuit Court,he succeeded also.
    The plaintiff- produced in evidence a declaration made by Walker, Judge of Jefferson County. Court, stating that the defendant, after his election to -the office of assessor and collector of taxes, had failed to ‘ give bond and security as such; and that, therefore, under the statute in such case made and provided, he declared the office vacant.
    The defendant, with other proof, not material, submitted evidence, that he attended, to give his bond; but that, in consequence of the absence of the judge, he was unable to perform that act. This testimony the Court below admitted, and exceptions were taken.
    It was proved, that the defendant had -acted after this declaration of the judge, and had coerced the payment of the sum for which this action was brought, out of the plaintiff.
    Argued by iifr. Peck, for the plaintiff in'error, and Mr. Ellis, for the defendant.

      Peck contended—
    I. That the act of the judge of the County Court, declaring that the office of the defendant was forfeited, was a judicial act, and conclusive of that fact— and could not be controverted, until reversed. — Mor-* ther vs. Hood, 8 John. Rep. 36; Van Steenourgh vs. Bigelow, 3 Wend. 42; Richardson vs, Hobert, 1 Stew. 504; Cunningham vs. Bucklin, 8 Cowin, 187.
    By the act of Congress of the 28th February, 1795, the' President of the United States, in case of invasion or imminent danger of it, is authorised to call ■ the militia into service, &c. The President is made the sole judge of the casus foederis. — 1 Kent, 245 : 12 Wheaton, 19.
    By the act of 1823,' (see Digest, p. 100, § 10,-11,) it is made the duty of the judges of the County Courts of the several counties, if any sheriff, clerk, or other county officer, shall be'absent for the term of four months, to certify that fact, under his hand and seal, to the person, officer or tribunal, appointed by law, to fill the same — (the 9th section declaring the office vácant, by such absence,) and that; on such certificate, the proper person, officer, &c., shall fill the vacancy. The judges of the County Courts, by this act, as well as by the act of 1829, above referred to, are bound to perform a delicate and important duty, in which they act under the high responsibilities of their office. „ It is a judicial duty: they are made the sole judges, and are to determine, for themselves, when that duty is to be performed : and when performed, it is binding and conclusive, and must be so, until it is reversed.. ,A different doctrine would be extremely dangerous to the peace and rights of citizens.' If any officer who might esteem himself injured by the act of a judge, could, (without resorting to the proper legal means, to correct any error which the judge might have committed,) take his supposed rights and remedies into his own hands, ‘ and redress himself, there would, then, be a constant collision between the officer removed, and the officer appointed to the vacancy; and the community would be unable to determine to which they ought, or might safely, submit.. Such a state of things would not long be endured — and should never be permitted, in a well organised State.
    2. The defendant, at the time he collected the money, was neither an officer de jure nor de facto— an officer de facto, is one coming into office by color of title: the acts of such an officer are good, as it regards the public and third persons, until removal. ' But the defendant, by the declaration of the judge, was removed; or, in other words, the office was declared actually vacant.. His rights, therefore, even as an officer de facto, were destroyed. — 7 John. Hep. 553, (top pa.;) People vs. Collins, 9 John. Rep. (top pa.) 135 — (note a.)

    3. In an action between third persons, the Court will not stop to inquire whether a person claiming to be an officer, and actually exercising the duties, be an officer de jure — yet,.in an action against such officer, for an act which he justifies as officer, the legality of his commission, his right to the office may come in question. — Fo?vler vs. Bebee, 9 Mass. Rep. 222, 225, (top pa!;) Commonwealth vs. Fowler, 10 Mass. Rep. 295. .Here the defendant justified himself as tax collector; his right, therefore, to that office, was properly in issue.
    4. Money, paid under a void authority, may, be recovered, in an action for money, indebitatus as-sumpsit.' — 2 Com. on Con. 49. The tort may be waived. — Id. 50; 1 Term Re.p. 387; 20 E. C. L. Rep. 380; Houghton vs. Seppings. Money, paid to ^one who claims a right or an authority to receive it, may- be recovered, in an action for money had and received, if he had rio such authority. — 1 Term Reports, 63. / ,
   Hopkins, J.

The inquiry, in this case, is into the nature of the power given, by the statute of 1829, to judges of the County' Courts, over persons, who might be re-elected, after its enactment, assessors and tax collectors.

The statute requires such an officer, to present, on or before the first Monday in January, after his re-election, to the judge of the County Court, of the proper county, receipts, in full, from the State and County Treasurers, for the taxes of the preceding year, together with his bond, for approval; and in the event of his failure to do so, makes it the duty of the judge to declare the office vacant.

If an assessor present satisfactory í-eceipts and a sufficient bond, within the time limited, the judge has power to determine that they are so. But, should he fail to present them, it would be the duty of the judge, to adjudge the office vacant. The statute gives the judge jurisdiction of the subject, and the presentment of the receipts and bond, or the omission to do so, jurisdiction of the person of the assessor: the judge therefore, has power, which must be exercised, in determining, either that the assessor has done or omitted what the act requires. Were he to admit, that receipts were in full, which were not so, or to receive an insufficient bond, such an act would be, until the effect of it should be destroyed, by the judgment of some other Court, conclusive evidence of the assessor’s right to perform the duties of his office.

The power is judicial, and the exercise of it, by. the judge, in the declaration which .he made, that the office of assessor, to which the defendant had been elected, was vacant, from his having failed to present his bond for approval, within the time required, cannot be questioned, by proof that the judge was absent when the defendant was ready to present one. As long ás the declaration remains in force, it is conclusive evidence that be did fail to present his bond.

The Circuit Court erred in admitting the evidence, which the defendant offered. The effect of the declaration which the judge made, was to deprive the defendant of the office of assessor, and leave it vacant. ■ As he had no authority to collect the taxes,' his sale of the property of the plaintiff,'Peck, to satisfy the claim against him, was illegal. He was a wrong doer, and might have been treated, by the plaintiff, as a trespasser. But the plaintiff had a right to waive the tort, and recover.the amount of the proceeds of the sale of the property, which the defendant received without any authority.

Let the. judgment be reversed, and the proper judgment be rendered by this Court, in favor of the plaintiff, Peck, for the amount the defendant collected of him, with interest thereon, from the time 'it was received,

       Aik.Dig. 37

       8 John. R. 36; 8Cow. 187;3 Wen.42; 9Mass. R. 231.

       20 Eng.C. L.Rep.380


author: Collier, J.

text:
    BRILEY versus HODGES.
    QUESTIONS IN THIS CASE.

      Relative to motions to retax costs.

      As to the attendance of witnesses summoned, but nett examined.

    1. Motions to re-tax costs may be submitted and entertained, at a term subsequent to that at which the judgment is rendered.
    2. Where witnesses are summoned in a causo, but not sworn, and it appears, from affidavit or otherwise, that they have been summoned to prove material facts; the attendance of such witnesses may be taxed in the bill of costs.
    In error from Covington Circuit Court.
    In this case a petition was filed by the plaintiff in error, praying a supersedeas as to certain executions obtained against him, by the defendant. The ground of the prayer was that the defendant had illegally summoned six witnesses to each case, as was alleged,with the design of oppressing the plaintiff. The order for supersedeas was granted by the judge below ; and at the term of the Circuit Court, following that at which'the judgments were rendered, a motion to retax the costs was made by Briley. The Circuit Court rejected the motion, on the ground that it was made too late.
    Argued by Mr. Peck, for the plaintiff in error, and by Mr. Chilton, for the defendant.
   Collier, J.

This cause comes here, by writ of error from the Circuit Court of Covington. By th© record, we are inforaied, that the plaintiff obtained the order of a judge, for a supersedeas, upon a sug- . gestión set forth, in [his petition, that the defendant . had recovered against the plaintiff, twelve judgments. That the party for whose use the suits were prosecuted, caused to be summoned, in each of the cases, six witnesses, with the view of burthening the plaintiff with costs; and that neither of the witnesses were sworn and examined, nor was there any issue of fact to try. It is further stated by the plaintiff, that he had paid the costs of two witnesses in each case, and that executions had issued against him, for the collection of the costs of the attendance of the four which were unpaid.

The record does not discover whether there were any proceedings upon the order for a supersedeas, hence we infer there were none.

At the term of the Court next succeeding the rent dition of the judgment, the plaintiff moved for a re-taxation of costs in eleven of the cases, upon the grounds disclosed in his petition for supersedeas, stating his readiness to make them good, by proof.— This' motion was overruled by the presiding judge, assigning as a reason, that the Court could not, “at that time, take cognizance of the matter.”

The only questions for our examination, are, was the motion of the plaintiff proper? and, was it uiade? in time?

In Considering these questions, we have felt somewhat embarrassed by the decision of this Court, in the case of Smith vs. Donaldson. A decision, from which, (with all our respect for the members of the Court, who pronounced it,) we are constrained, to some extent, to depart. We understand it to have been determined in that case, that a motion to strike' from the bill of costs an allowance to witnesses who were summoned but not sworn, and tp disallow the Costs of more than two witnesses, to any one matter of fact, should be made at the term when the cause is tried, and comes too late, if made after-wards. The difficulty of sustaining such a motion, by proof, at any term succeeding the trial, is the only reason assigned for the conclusion of the Court.

It is true, that in most cases, it would be much easier to make proof of the facts, necessary to sustain the motion, immediately afrer the'trial of the cause; yet it does not follow, that in all cases, it would be impossible to find sufficient evidence, at an after term.

We cannot believe that a Court is authorised to repudiate a cause, for the reason that it may be difficult to make it out by proof. We are unadvised of any such test of the right of jurisdiction. The correct course is, to entertain the case, hear the proof, and allow it its proper influence.

It is very possible the supersedeas should not have been awarded, in as much as the objections to the taxation of costs, disclosed in the petition,^ were to be shewn by extrinsic proof, and do not appear upon the record.—Fryer vs. Austill. Yet; it was certainly competent for the plaintiff, (disregarding the supersedeas,) to have submitted his motion for,a relaxation; Such motions are familiar, in the practice of our Courts, where larger or smaller fees are taxed, than are allowed by the fee bills.

In some of the States, the amount of the costs is ascertained, and a judgment in numero rendered, for their recovery. In these, where too much costs aré taxed, and the objection appears of record, a writ of error may be prosecuted. But, where the excess of costs is to be shewn by proof, motions to retax are allowed. By our law, the clerks of the Courts are directed to tax costs — a duty which they cannot perform, until after judgment, and, most usually, defer till the close of the term. Under such a practice, it must be difficult, if not often impossible, for an unsuccessful party to learn, during the term when judg-mentis rendered, what costs he will be required to pay. Sheriffs frequently neglect to return subpoenas within. a proper time; and clerks, as often, to make out subpoena dockets.

Influenced by these considerations, we cannot but view a practice which refuses to entertain a motion, such as vve are consideringfat a term, succeeding the judgment, as calculated to effect injustice; and unau-thorised by any general rule of law, or statutory regulation.

It certainly cannot be maintained, that the unsuccessful party should not be taxed with the cost of witnesses summoned by his adversary, but not sworn. It frequently happens, that a party, under an impression, that the disclosure of certain facts, will become material, summons witnesses, which,, as the trial progresses, he is admonished that it is unnecessary to examine. In such a case, if it appears, by affidavit or otherwise, that the object of the party summoning, was not to oppress his opponant, but to prove mate-aial facts, the attendance of the witnesses should be allowed.—Hutchins v.Eden. —Carpenter v. Taylor.

Though the reason employed in this opinion, is general, and may seem to oppose all points, adjudged in Smith vs. Donaldson, yet, we desire to be understood as overruling that case, only so far as it applies to the costs of witnesses, who haye been summoned and not sworn: leaving it to be determined, hereafter, whether a 'motion to re-tax the costs of witnesses, sworn and examined, shall be heard at á term succeeding the rendition of a judgment.

It rebaains but to say, that, in our opinion, the motion of the plaintiff should have been entertained; and, that the refusal to do so, is error.

The judgment is reversed, and the cause remanded.

       Jan’y T. 1833

       1 Stew 119

       3Har M'H 101.

       2 Taylor R. 265


text:
    HUDSON versus THE BANK OF ALBAMA.
    QUESTION IN THIS CAUSE.

      Relative to the liability of the indorser of a bill of ex? change.

      1. Where, from the date of a bill of exchange and the evidence offered, it appeared to have been protested twelve months af- ' ter its maturity — held, that the indorser was discharged.
    In, error from Tuskaloosa County Court.
    This was a suit by notice, under the statute, in* stitute.d by the President and Directors of the Bank, against Hudson, as indorsor of a bill of exchange.— The bill was dated the first of January, 1832, and payable at one hundred and twenty days. It was purchased,, by the bank, on the 2nd January, 1833, and was protested, for- non-payment, on the 4th May, 1833.
    The defendant having demurred to the evidence, a judgment thereon was rendered against him; and he ■.took a writ of error, to this Court.

      Stewart and Thornton, for the plaintiff in error— Ellis, for the defandant.
   Hopkins, J.

We shall express an opinion on one •only, of the several questions, which were argued in this case. The judgment under review was render.,ed in favor of the bank, against the plaintiff in error, ;as an indorser of a bill of exchange, that bears date the first day of January, 1832, and was payable one hum-idred and twenty days after date,

The President and Directors of'the Bank, aven-red, in the notice,'which they filed, that the bill was drawn on the first of January, 1833, and dated, by mistake, the 1st January, 1832. The bill was purchased by the bank, on the 2nd January., 1833, and protested, for- non payment, the- 4th' May, in the same year.

The judgment was rendered upon a demurrer of the plaintiff in error, to the evidence, which was gb ven in support of the demand of the bank.

The evidence shows clearly, we think, that the bill was not protested, until twelve months after its maturity, and that the indorser was discharged from ■his liability, by the neglect of some prior holder, long before the bank purchased the bill. The testb mony, as to the time at which the bank acquired the ■bill, may show, that the purchase of it was injudb cious, but it does not tend to prove, that there was a mistake in the date of it. As to the effect of proof, had .it been offered, of the mistake, we determine no? •thing.

The judgment should have been for the' plaintiff in error. Let the judgment be reversed.


author: Per Curiam.

text:
    DAVENPORT versus DRAKE.
    QUESTION IN THIS CASE.

      As to discrediting a witness.

    1>VA. defendant, after his testimony in defence, is closed, has a right to prove that a witness called by the plaintiff, to rebut the defence, is unworthy of credit.
    Trover by Drake against Davenport, in Lowndes Circuit Court.
    After the defendant had closed his testimony, a witness to prove facts, rebutting those reli ed on in de-fence, was examined by the plaintiff. The defendant then offered to prove, that this witness was not entitled to credit; which the Court below refused to admit.
    Exceptions and writ of error to this Court.
    Argued by Mr. Dargan for plaintiff in error.
   Per Curiam.

The defendant in error, brought an action of trover, in the Circuit Court of Lowndes.— After the examination of the witnesses, introduced on the part of the defence, had closed, the plaintiff below examined a witness, for the purpose of rebutting their testimony, who had not been examined previously: The plaintiff in error proposed to introduce witnesses to discredit this witness ;. which the Court refused to allow. The refusal of the Court is now assigned for error.'

It is settled, beyond controversy, that it is competent to discredit a witness by general evidence, affecting his credit; and it is quite immaterial, whether the witness whose testimony is attacked, is examined by the plaintiff in the first instance, or is only introduced to rebut what has been- proved by the defendant’s witnesses.' If the defendant avails himself of the earliest opportunity to discredit, he has a right to beheard.

The judgment is reversed, and,the cause remanded.

      1 Starkie’s Ev. 145; 3 ib. 1753.


text:
    EDGERLY & MUSSINA versus BUTLER & HARRIS.
    QUESTION IN THIS CASE.

      The construction of the act of 1830", for the relief of securities in Bank.

    I. The summary remedy given to parties, (bound for the payment of any bill of exchange, the property of Bank,) by the second section of the act of 1830, does not extend to ordinary .business paper ; but is confined alone to accommodation paper, discounted in Bank.
    This, was a motion made by the defendants in ef-ror, in Mobile Circuit Court.
    The plaintiffs in error being indebted to Butler & Harris, drew their bill of exchange; which, after* having been endorsed by the defendants in error, was discounted by the Branch Bank of Mobile ; and, after protest, paid by the endorsors. The object of this motion, was to obtain against the defendants below, a judgment on summary motion, as authorised by the second section of the act of 1830 — which gives that remedy to securities to paper discounted by the Bank.
    The only question raised in this case, was, whether the statute extended to a bill of exchange, given to parties in ordinary business transactions, and af-terwards sold to the Bank ; or, whether the remedy was confined alone,to paper made for the express purpose of being discounted, as accommodation paper.

      Mr. Thornton for the plaintiff in error, and Mr'-. Goldthwaite for the defendant;
   Collier, J.

On the ninth of March, 1835, the defendants in error issued a notice, signed by theif attornies, directed to the sheriff of Greene county, requiring him to make known its contents to the plaintiffs in error, and return the same 1o the Circuit Court,of Mobile. By tile notice, the plaintiffs in error were informed, that a bill drawn by them, in favor of the defendants in error, and accepted by J. A. Torbert, payable and negotiable at the Branch of the Bank of the State of Alabama, at Mobile,’ had been discounted by, and become the property of the Branch Bank, before its maturity ; that being unpaid at maturity, it was protested for non-payment, and notice thereof given to the plaintiffs in error. The notice sets out the amount and dates of the bill; avers its payment, by the defendants in error; and informs the plaintiffs in error, that a judgment will be moved for against them, for principal, interest, &c. on the bill.

On a motion being made for judgment, pursuant to the notice, it was agreed that the bill was given, by the plaintiffs in error, to the defendants in error, in payment for goods purchased; and was, by the latter, procured to be discounted by the Branch Bank, in the regular course of business : that the bill was not an accommodation bill; nor endorsed by the defendants in error, at the i-equest, for the accommodation, or as sureties of the plaintiffs in error. The protest and notice, and promise to pay after suit brought, together with the certificat'd from the President of the Branch Bank, in due form, were all admitted.

The only question raised, is, whether the defendants in error are entitled to the remedy they have adopted, for the recovery of the bill.

A solution of this question must depend upon the construction of the second section of the statute of 1830, entitled “ an act for the relief of securities in Bank.” So much of this section as need be noticed, is as follows: “ If any person or persons who rfiay be bound for the payment of any bill of exchange, the property of the Bank of the State of Alabama; or any of the Branches thereof, shall pay the same after it shall have been protested for non-payment, the person or persons so paying such bill, shall have the same summary remedy against the drawer, acceptor, or any previous endorser of such bill, or any one of them, as is provided by'the first section of this act, in favor of the securities of notes against their principals,” &c. &c.

By the first section of the act, it is-enacted, that if any person who has executed any note as security, payable to the President and Directors of the Bank of the State of Alabama, or any of its Branches, shall have paid the same, he or they shall have the same summary remedy against his principal, as is provided by law for the collection of debts in favor of the Bank.

The title of the act indicates, in express terms, its object; and by the language employed, it is sufficiently shewn, that it extends only to those who have voluntarily become the debtors of the Bank, or its Branches, and not to a bill made in the ordinary course of business, which the holder, without the consent of the parties to it, has procured to be'discounted.

If a bill be made expressly for the purpose of being offered for discount to the Bank, or one of its Branches — if discounted, and paid after protest fo non-payment, the drawer, acceptor, or prior endor sers, would be liable, under the second section of the statute, to the person paying it. And that it is only to such a state of case, that this section is applicable, is manifest from the reading of the entire act.

It is conceded, in the facts agreed, that the bill, which the defendants in error have paid, was drawn in the regular course of business, and received by them in payment for goods sold to the plaintiffs in error. Here, the plaintiffs have never expressly assented to become the securities for the defendants, to the Branch of Mobile, but are only made such by the operation of law, upon the purchase of the bill.— Such a case cannot be reached by the statute. But once establish a contrary construction, and the banks, if they have the means, and are willing to purchase, will become the holders of much the larger amount of paper in our towns, where they are located. The inducement to a creditor to sell his notes to the bank, would be too great for him to resist, especially if he distrust the promptness of his debtor. He will sell his note or bill to the bank, pay it himself immediately after protest for non-payment, and avail himself of the summary remedy. The money he receives from the bank will enable him to meet it, and the interest he pays for a short time, even if the money remain in his hands, unemployed in the interim, will be inconsiderable.

As, in our opinion, the second section of the statute does not extend to ordinary business paper, but only to accommodation paper, discounted by the Bank, or its Branches, the judgment of the Cirpuit Court below,, must be reversed.


text:
    LYNES versus THE STATE.
    QUESTION IN THIS CASE.

      Relative to the reference of questions novel and difficult.

    1. Where, at one term, a decision of the court is made on demurrer to a plea in abatement, against a defendant in a prosecution; a judge, at a subsequent term, has no authority tore-view t,he propriety of that decision, and refer the question as novel and difficult.
    This was an indictment against Lynes, in Madison Circuit Court, for gaming. The record disclosed that he plead in abatement; and that a demurrer to that plea was sustained by the Court, At a term, subsequent to these proceedings a verdict was rendered in favor of the State; and in arrest of judgment, the defendant mooted the previous decision of the Court, on the demurrer to this plea. The Court decided against the motion in arrest of judgment, but reserved the question for the opinion of this Court.

      McClung, for Lynes — The Attorney General, contra. .

   Per Curiam.

In this case, the plaintiff in error pleaded in abatement, to an indictment against him, for having played a game at cards. To his plea a demurrer was taken by the attorney of the State, which was sustained by the Court.

At a term subsequent to that in which the- deck sion of this issue in law was made, Lynes was tried on the indictment, upon his plea of not guilty, and the verdict of the jury was against him. After the verdict, he moved in arrest of judgment, because the Court had erred, in sustaining the demurrer to his plea in abatement., The Court overruled the motion, and referred the question, as difficult and novel, to this Court, whether the Circuit Court, at a previous term, did err, in sustaining the demurrer?

The Circuit Court, upon the motion to arrest the judgment, had no power to review the judgment on the demurrer- The demurrer was decided at a previous term, and by a different judge, who did not express his opinion, that the question which arose upon the demurrer, was novel and difficult. Had he done so, and reserved it, it might now be considered by this Court.

As the Court which referred the question, had no power to determine it, it follows that the Court had none, to decide there was difficulty in the question, and reserve it for the consideration of this Court.

Let the reference be dismissed.


author: Hitchcock, C. J.

text:
    GUARDIAN OF CHRISTIAN versus CHRISTIAN, Adm’x
    QUESTION IN THIS CASE.

      As to the hire of slaves, bequeathed in futuro.
    1. Where one, by will, gave certain slaves to A when B should arrive at the age of twenty-one; it was held, that A was entitled to his proportion of the hire, from the time of the testator’s death.
    In this case, Daniel Hovey, guardian of John W. Christian, filed a petition in the Orphans’ Court of Wilcox, praying an account of the estate of his ward, in the hands of Christian, the administratrix, cum tes-tamento amiezo, of the estate of George Christian, deceased. George Christian was the grand father : and the object of the petition was to obtain an account of the hire of certain slaves, bequeathed by him, to the plaintiff’s ward.
    The clause of the will, on which this matter was predicated, was of the following terms, to wit.

      “Igive to my grand-son, John W. Christian, an equal dividend of the slaves, with the following named children, [naming them,] to be equally divided, when James A. Christian arrives at the age of twenty-one years.”
    The judge of the Orphans’ Court determined, that the ward, John W. Christian, was entitled to no part of the hire of the slaves, from the time of' the testator’s death, and so decreed; and on an appeal to the Circuit Court, that decree was affirmed.
    The cause was brought to this Court by a writ of error.

      Porter and Mr. Thornton, for lbs-plaintiff in error ; Mr. Clarke, for the defendant.
   Hitchcock, C. J.

This was a, writ of error, tothe County Court of Wilcox County, to reverse a decree of that Court, in the matter of the will of George Christian.

The testator, by his will, after making sundry specific devises and bequests, to his wife, and several of his older children, makes the following bequest.

"8. I give to my grand-son, John W. Christian, an equal dividend of the slaves, with the following named children, [here naming nine,] to whom I gave the slaves,' as before mentioned, to be equally divided, when James A. Christian arrives at the age of twenty-one years.”

The estate having been divided, and sundry ne-groes having been allotted to John W. Christian, he, by his guardian, claimed a share of the hire of the negroes, from the death of the testator, to the period of the distribution, which the Court below disallowed. To reverse this decision, the case has been brought to this Court.

A question was suggested in the argument, whether any thing is bequeathed in this clause of the will ? It is contended, that the expression, “ to whom I gave the slaves,” before naming the children, and the words, “ as before mentioned,” after, must refer to a former part of the will; and as no such bequest is to be found in the will, nothing is conveyed.’

To my mind, thére is no difficulty. The word “ gave,” was probably written “ give,” in the will, and the words, “as before mentioned,” there, refer to the words, “ an equal dividend,” &c.

Whether this construction is correct or not, it is perfectly clear, that the testator did give, in this clause of his will, an equal undivided tenth part of all his slaves, not otherwise disposed of his will, to his grand-son : and it is a well settled rule in the construction of wills, “that the intention of a testator is not to be set aside, because it can not take effect to the full extent; but it is to work as far as it can.” Neither can a positive bequest be controlled by inference and árgumení from other parts of the will.”

. The bequest in this instance, is, what the law denominates a “ legacy of quantity, in the nature of a specific legacy — as where so much money is bequeathed with reference to a particular fund for its páy-ment :” to which, except in some cases applicable to this particular kind of legacy, the rules applicable to specific legacies, apply; which are considered as severed from the bulk of the testator’s property, by the operation of the will, from the testator’s death; and with their increase and emoluments specifically appropriated for the benefit of the legatee from that period, upon which interest is computed from the death of the testator: and it is immaterial whether the enjoyment of the principal is postponed by the testator or not.

this case, the bequest is of an equal undivided tenth part of the testator’s slaves — their being nine children. The enjoyment of the specific property is to be postponed until James A. Christian, one of the legatees becomes of age. The hire, however, according to the principles above stated, is due from the death of the testator.

The decision of the Court below, must,'therefore, be reversed, and the cause remanded, in order to take 'an account of the hire of the slaves, from the death of the testator.

       4 Ves.325

       8 ib. 42.

       Roper on Leg. 150.

       2 ib. 188; 2 Wms. on Ex ors.876


text:
    MOORMAN versus THE BANK OF ALABAMA,
    QUESTION IN THIS CASE.

      What evidence of protest will charge the indorser of a foreign hill.

      1. In an action against the indorser of a foreign bill of exchange, where the protest of it described the name o'f a subsequent indorser thereof, as Pyron, when the bill sued on, showed his name to be Byron, it was held, (under the facts,) that this was sufficient to charge the prior indorser.
    The President and Directors of the Bank of the State of Alabama, issued a notice, directed to Moor-man, the plaintiff in error, informing him, that at an ensuing term of the Circuit Court of Tuskaloosa, they would move for judgment against him, as the indorser of a bill of exchange. ■ The bill was for two thousand dollars, and due at four months. It was drawn by Achilles L. Moorman, on a firm, at New Orleans, and was indorsed by W. W. Simpson,' Thomas C. Moorman, Wm. Byron, and Daniel -M-Riggs, Cashier.
    The eyidence of protest for the non-payment of the bill, described it as- above, with the exception of the name of Wm. Byron, which the notary wrote “ Wm. Pyron.” There was a demurrer to this evidence, which the Court below overruled; and there was a judgment for the bank.

      Mr. Martin for the plaintiff.in error; Mr. Ellis, for the defendants.
   Hitchcock, C. J.

This wasan action, brought by the President and Directors of the Bank of the State of Alabama, against Thomas C. Moorman, in the Circuit Court of Tuskaloosa County, as indorser of a bill of exchange, dated at Russellville, in this State, on the 1st December, 1832, payable four months after date, at New Orleans, for two thousand dollars,— The bill is drawn by Achilles L. Moorman, on Messrs Sledge & M’Kernan, in favor of W. W. Simpson, and indorsed by him, the defendant in this action, one Wm. Byron, and by Daniel M. Riggs, cashier of the bank.

The evidence, on the part of the plaintiffs, consists of the bill, a protest, by a notary, in New Orleans, which describes the bill and indorsements, and is, in every particular, identical with this bill, except that the name of Wm. Pyron, is given on the back of the protest, instead of Wm. Byron; and the evidence of Daniel M. Riggs, the cashier of the bank, who testifies, that “the bill sued on, was purchased by the bank, on the 12th December, 1832; that it was afterwards indorsed by him, as cashier, and forwarded to the Bank of Louisiana, in the City of New Orleans, for collection; and that no other bill, of the same tenor and date, payable at the same place, and signed by the same parties, was purchased by .the bank, during the winter of 1832 and ’33. To this testimony the defendant demurred, and the Court gave judgment, on the demurrer, for the bank.

It is admitted, that this is a foreign bill of ex* change, and that a protest of it is indispensable, to entitle the plaintiff below to recover of the defendant; and the question is, whether the evidence is sufficient, to show, that it was protested ?

The only discrepancy between the bill and the copy, on the protest, is in the name of Pyron, on the latter, instead of Byron, which is on the bill.

By the testimony of the cashier, it' appears that this bill was bought by the bank, and that no other of the same tenor and date, was: that it was forwarded to New Orleans for collection. It is, therefore, a legal inference, in this case, that this protest relates to this bill, and to no other; and, that the no* tary eommited a mistake, in placing the name of Py-ron, for Byron, on the protest. That being the case, the Court, on a demurrer to evidence, is bound to infer every fact that a jury might infer.

We think the mistake does not avail the defendant below. He is a prior indorser, having no claim on Byron, and cannot be affected, even if Byron is dis* charged. If Byron had been a prior party to the defendant, the case might have been otherwise.

It is admitted that the defendant was duly notified of the dishonor of the bill, which is sufficient to put him on his guard, so as to notify the prior parties. There is, therefore, no legal objection to a recovery by the bank.

Bet the judgment be affirmed.