author: By Mr. Chief Justfce.LipscoMB :

text:
    Edward Herndon vs. Richard J. Swearingen.

      Error from Greene County Court.

    Where A. having purchased a note of hand of B, drawn in B’s name by C.and D, and E. having a judgment against B, garnishees C. as B’s debtor — Held, that when C. had, in pursuance of a judgment on such garnishment, pnid the' amount of the note to E, A. could not recover the amount back from E. — it appearing that no notice of possession of the note by A. had been given to C. and D. or E.
    Assumpsit for money had and received.
    In this case, the plaintiff, Herndon, had purchased of one Billings, a note of hand drawn by James and John Trussel, in favor of said Billings.

      The defendant, Swearengen, having obtained a judgment before a justice Of the peace, against Billings, sued put a garnishment against one of the Trusséls,.who answered, that he ‘did owe to Billings the amount of the" note above mentioned; On this answer, the justice of the peace rendered judgment against Trussel, the garnishee, for amount of the note and interest, which Trussel paid off to Swearengen. Herndon; the purchaser of the note, now brought the present' action to recover of Swearengen the amount of the noté so received. It did not appear that Herndon had ever given notice to the makers of the note, that he had possessed himself of it; and" the court charged the jury, that as Swearengen had received the money by due course of law, Herndoh could not recover it in this action ; for if he possessed any means of recovery, it must be against Trussel on the note. To this opinion of the court, the plaintiff excepted, and assigned the same foi error.
    There was a verdict for the defendant below.
    Erwin, for Plaintiff
    — 2 Burr, 1005 — 5 Mim. 1781
    ■Stewart, contra.

   By Mr. Chief Justfce.LipscoMB :

This was an action for money had and received, before á' •justice of the peace, from whose decision, which was in favor of the plaintiff in errór-, who was also plaintiff below ; the defendant took an appeal to the County Court of Greene county. On the trial in the county court, as appears from the bill of exceptions, it was in evidence that on or about the first Of December, 1830, the plaintiff purchased of one William Billings, a promissory notej of which the following is a copy; to wit; '

“ On the first day of March next, we or either of us pro-•inise to pay unto William Billings, or order, the sum oftwetity seven dollars and fifty cents, for value received. — October 18*» 1830.
Signed, JAMES TRUSSELL,
JOHN TRUSSELL.”

It further appeared in evidence, that the note was delivered over to Herndon, the plaintiff", by Billings, at the time the •purchase was made — that in May, 1831, Swearengen obtained a judgment against Billings, upon which ho sued out a writ of garnishment against Trussell, one of the makers of the note, when the latter appeared before the justice as garnishee, and answered, that he owed Billings the amount of the note ; whereupon the justice of the peace rendered judgment for the amount of the note, with interest. This judgment Trussell paid-off and satisfied, to Swearengen. The plaintiff gave no notice to the makers of the note, that he had purchased it, and was the owner; nor does it appear, that either the makers of the note, or Swearengen, the present defendant, had notice, that the plaintiff was the owner.

Before the commencement of the suit, the plaintiff, Hern-don, demanded the money from Swearengen. The court below, charged the jury, that as Swearengen had received the . money by due course of law, from Trussell, the garnishee, upon the note, the plaintiff could not recover it from him. This charge of the court below is now assigned for error.

The position is assumed by the plaintiff’s counsel, that ip equity pnd good conscience, he is entitled to the money received by the defendant from Trussell, the garnishee, and one of the makers of the note purchased from Billings the • payee. He contends, that his right to receive the money, was vested iri him by his purchase; and that at the time of the . judgment against the garnishee, Billings had no interest in the note subject to sequestration, consequently, that Swear-engen, the defendant, has no better right than Billings, and cannot in equity and good conscience withhold the money ' from him. To support his doctrine, he relies mainly on the doctrine laid down by Lord Mansfield, in the case of Moses vs. McFarlane. I have examined that case, and it appears to me, that in itself, it bears no relation or resemblance to the one before us; and if any aid can be drawn from it, to support the plaintiff’s action, it must be from maxims or principles laid down by his Lordship by way of illustrating the correctness of his opinion. The case was briefly this. Moses endorsed to McFarlane four several promissory notes, made to himself by one Chapman Jacob, for thirty shillings each, for value received, bearing date the 7th November, 1758. This was done to enable McFarlane to recover the money in his own name, against Chapman Jacob, but previous to Moses’ indorsing the notes, McFarlane assured him it should be of no prejudice to him ; and there was an agreement signed by McFarlane, whereby he, amongst other things, expressly agreed, that Moses should not be liable for the payment of the money, or any part of it, and that he should not be prejudiced, or put to any cost, or any way suffer by reason of such indorsement. Notwithstanding such express agreement and condition, and contrary thereto, McFarlane summoned Moses into the court of conscience upon each of these four notes, as the indorser thereof respectively, by four separate summonses ; whereupon, Moses, by one Smith, who attended the court of conscience at their second court, as solicitor for him, and on his behalf, tendered the indemnity to the court of conscience, upon the first of the said four causes, and offered to give evidence of it, apd of the agreement, by way of defence for Moses in that court. But the court of conscience rejected this defence, and refused to receive any evidence in proof of this agreement of indemnity — thinking that they had no power to judge of it; and gave judgment against Moses upon the mere fact of his indorsement (which he himself did not at all dispute) whithout hearing his witnesses about the agreement that he should not be liable” — for the commissioners held this agreement to be no sufficient bar to the suit- in their court, and consequently decreed for the plaintiff, McFarlane, upon, the undisputed indorsement made by Moses, and the money. was paid by Moses’- solicitor into court. This action for mo-, ney had and received, was brought by. Moses against McFar-lane, to recover it back. There was a verdict for the plain-; tiff, subject to the opinion of the court, upon this question, 4‘ whether the money could be recovered in the present form of action, or whether it m ust be r’ecovered by, an action brought on the special agreement only.”- After taking time to advise, the whole court were ofthe opinion, that the action was well brought. Lord Mansfield delivered the opinion ofthe court-. He lays down the rule, that if there is an obligation from the ties of natural justice, to refund the money, the law implies a debt, and gives, this, action, founded in the equity ofithe case. All of the ca.ses. put by his Lordship, by way of illustration, are those, where the money was either received or withheld in bad faith; all of which may be admitted as sound law, and yet could not be made, to apply to the case before us. There is nothing inconsistent with sound morality, in Swearengen holding on to the money that a court of- competent jurisdiction had awarded to him, and for all the effect'it could have, it might be conceded that the case of Moses vs. McFarlane was good authority. It has, however, been questioned, if not overruled. In the case of Marriott vs. Hampton, it was ruled, that where money has been paid by the plaintiff to the defendant, under the compulsion of legal process, which is afterwards discovered not to. have been due, the plaintiff can not recover it back, in an action for money had and received. The money had been paid, and a receipt given, but mislaid or lost, so that it coul.d- not be used on the trial. It wa.s afterwards found, and this action was brought to recover back the money, and the case of 'Moses nn&McFarlane relied on. Lord Chief Justice Kenyon said, “I am afraid of such a precedent. If this action could be maintained, I know not what cause of action can ever be at rest. After a recovery by process of law, there must be an end of litigation other-, wise there would be no security for any person.”

Ashurst, of the same, opinion.

Groce, J. — Of the general principle, there can be- ncx doubt; and though the last case cited, (Moses and McFar-. lane,) seems to throw some ambiguity upon it, yet some of the positions there stated, are so entirely repugnant to every principle of law, that I have less difficulty in disregarding tho whole authority of it.”

Lawrence, J. — “ If the case alluded to, be law, it goes the length of establishing this — that every species of evidence which was omitted by accident to be brought forward at the trial, may still be of avail in a new action, to overrule the former judgment, which is too preposterous to be stated'.”

Mr- Peak, in his Treatise on Evidence, after laying down the .principle, that money paid, and judgment in the due course of legal proceedings, cannot be recovered back, says, that the contrary doctrine, ruled in Moses vs. McFarlane, has been much questioned. Judge Chase, in O'Harra vs. Hall, says, “that the authority of Moses vs. McFarlane, had been ah ways suspected, and has lately been overruled.”

-The other cases cited by the counsel for the plaintiff, Wilson vs. Davison, and Wakefield vs. Martin & Trustee, can have no application.. They would hare had some applica-. tion, if a recovery was sought from Trussell, by the plaintiff, notwithstanding the payment made by him to Swearengen, under the judgment of the court, on the garnishment; but in that event would have been insufficient to procure a second recovery against him, for I consider that there1 can be no question, but that Trussell would be fully protected from a recovery if sued on his note, by the judgment on his garnishment — although the case of. Wilson vs. Davison, in Mumford, would seem to go the length ; that such judgment would not shield him frofn the payment of the note. In that case,- the maker of the bond had been garnisheed by the attaching era-ditor, by a suit in chancery — and there had been' a decree ^lat he should pay the amount of the bond to the attaching creditor, on such creditor giving bond to refund as the court should afterwards direct. At that time there had been no notice to the maker of the assignment of the bond. Suit was commenced on it before the bond for refunding, required by the decree, had been given ; it was given, however, and the amount of the bond paid by the maker. On the trial of the suit at law on the assigned bond, it was ruled, that such payment was no defence. Now unless there be some rule of court, or law, in Virginia, not noticed in the report of the case, it seems to me, that it will be difficult to reconcile this decision to the principles of law, or to our notions of common justice. The decree of the eourt, (supposing it to have been regular, which was not questioned,) requiring the obligee of the bond to pay it over, was an act of law, and imposed an obligation paramount to the one contained in his bond, and the notice came too late to justify his disobedience to the decree. In my opinion, the argument, that he might have applied to the chancellor to set aside the decree, would have more strength, if it were applied to the assignee of the bond. If not sufficiently protected and secured by the refunding bond, he might have applied to the chancellor to set aside the decree; or for such other security as the circumstances of the -case required. There was but one course left to themaker of the bond, after the decree ; and that was plain and simple, but paramount — it was obedienc to the law, as declared by the constituted authorities. The defendant relies on the decision of this court, in the case of the Executors of Burdine v. Maltbie. In that case, one Tilford was indebted both to Maltbie and • Burdine. One Lewis holding a bill against Maltbie, the latter induced Tilford to place sundry notes in Lewis’ hands, with instructions to apply the proceeds to the payment of the bill against Maltbie, as fast as collected.— Among other notes, was one against a man by the name of Chew. Suit was brought in Tilford’s name against Chew-Burdine’s executors had, in the mean time, recovered a judg - ment against Tilford, and finding no effects of Tilford, out of which to satisfy the judgment, garnisheed Chew, and obtained a condemnation of the amount he owed Tilford, to the satisfaction of their judgment. Maltbie then filed his bill in chancery, and procured an injunction, • enjoining Chew from paying, and Burdine’s executors from receiving, the amount so condemned on the garnishment. On' the final hearing, the court of chancery decreed in favor of Maltbie,, which decision was reversed on an appeal to this court. It was the opinion of this court, that' the debt due to Tilford was an equitable fund, out of which, both Maltbie and Burdine’s executors, might seek satisfaction ; and that Maltbie might have had his equity preférred, if he had .used equal diligence : but he had given no notice, and by his negligence, and that of Lewis, had permitted the executors of Burdine to obtain a judgment of condemnation in their favor, of this fund — of which advantage they could not be justly deprived. The case before us is stronger, than the one just cited. In that case Maltbie interposed his claim before the money was paid; in this, the judgment was satisfied by the payment of the money before the equity of Herndon was heard of at all. But aside from the. authority of an adjudged case, it seems to me there are many considerations against sustaining this action. The note alleged to have been purchased by Herndon, was payable to Billings, or order; there was no indorsement on it, and consequently, if he purchased for a valuable consideration, he only acquired an equitable right to the funds, that this chose in action was evidence of, and nothing more. It was an equity, that by diligence he might have had preferred, but he slept on his rights until the lesser or younger equity of Swear-engen, had acquired the additional weight of a judgment in his favor, and an actual possession of the fund. Herndon’s inactivity in asserting his equity, is the sole cause of his loss ; thi's lie might have incurred, even if the note had been indofs' ^ him» and bis right had been clearly legal. In that easel if before notice of such indorsement, Trüss'ell had purchased the judgment against Billings from Swearengen ; .it would have been a good set off against the note ; or if he had made payment, it would have been a good bar — (See Digest.) The consequences he now reaps, are not worse. Were we to entertain this action, we do not know when there would be an end to litigation — we possibly might be again called on to decide on another claim', in some o'ne else-, superior to the plaintiff’s equity : and it might be urged, that as it had been awarded to him, when another had a better right, he could not conscientiously retain the money» Again; it- is not the policy of the law to leave the door to litigation so open, that a secret equity, unknown to the world, may be set up to the prejudice of an honest creditor, who has been wary and industrious, and used only the means the law afforded him, to •collect the money. The silence of Herndon for several -months, was certainly culpable negligence.

We are all of the opinion, that he cannot sustain his action — and, that

The judgment must be affirmed»

        2 Burrow, 1011.

       7 T. R. 268.

       peak’s Ev., 44.

       4 Dal. 340.

       5 Mumf. 178,

       5 Mass. 558.


source: Caselaw Access Project

author: By Mr. Justice Saffold :

license: Public Domain

text:
    William Bryant vs. Thomas Owen.
    .Error from Tuscaloosa Circuit Court — Before the Ho». A. Crenshaw.
    Au agency, such as is created by the relation of client and attorney, does noc authorise the attorney to sue in his own name, even on a note payable toa particular person, or bearer. .
    Not even with the consent of the principal.
    This was an action of debt on a promissory note, payable to one Bobinett, or bearer. There was a general demurred to the declaration, which was overruled. i The defendant then pleaded—
    1st. That Owen was not the legal holder of the note.
    2d. Nil debet — Payment and off set.
    On these pleadings there was a verdict for the plaintiff Owen.
    The points involving the present decision in this cause, came before the court on a bill of exceptions, which show the . following .facts.
    The court charged the jury on the trial in the court below, that before the defendant could avail himself of any defence Which existed against the note in the hands of the original payee, it was necessary for defendant first to prove, that the note was transferred by the original payee, after it became due, notwithstanding that the defendant proved that the plaintiff, O .ven, had given no value for the note, but had received the same for collection, as an attorney at law, from one Spears, who claimed its contents.
    The defendant requested the court to charge the jury, that if they believed the plaintiff received the note, not in the course of mercantile transactions, but as an attorney at law, for collection; then he was not entitled to recover. The court refused this charge.
    It further appeared, that the plaintiff Owen, was the attorney of Spears, who was the owner of the note, and that he had sued on the same in his own name.
    May, \ Wilson, and > For Plaintiff— Crabb, )

    Cited Chitty on Bills, p. 68, 69, 70 — ibid. 129, 183 — 3 Kent, 51, 52 — 10 Johns. 398, 388 — 11 Johns. 23, 25 — 12 Johns. 1 — 2 Bos. & Pul. 411 — 3 Bos. & Pul. 146 — 5 Mass. 491 — 6 Mass. -253 — 1 Camp. 337 — 2 Camp. 36 — 1 Johns. Cas. 103 — 5 Mason, 58.
    Peck, contra.

      Chitty on Bills, 89, 511, 512 — 4 Taunt. 114 — 2 Camp. 596 — 5 Mass. 334 — 3 Bay, 311 — 3 Johns. Cases, 25§ — 4 Binney, 366.
   By Mr. Justice Saffold :

This was an action of debt, brought by Owen as bearer, against Bryant as maker, of a promissory note; payable to A. Robinett, or bearer. The defendant below, pleaded that Owen, the plaintiff, was not the legal holder of the note ; also nil debet, payment, and set off — on which the plaintiff joined issue ; and on trial in the Circuit Court, obtained a verdict for the amount of the note.

The questions presented for revision’, arise out of exceptions to the opinion of the court, taken on the trial.

1. That the court charged the jury, that before the defendant could hvail himself of any defence, which existed against the note, in the hands of the original payee, it was necessary for the defendant, first, to prove that the note was transferred by the original payee, after it became duo — notwithstanding the defendant proved that the plaintiff had given no value for the note.

' 2. Tlie defendant requested tlie court to instruct the jury" that if they .believed tlie plaintiff received the note sued on, not in the usual course of mercantile transactions, but as an attorney at law, for the purpose of collection, then he is not entitled to recover, which was refused.

The charge given as above stated, and the refusal of the court to give the other instructions, as required, are the causes assigned for error.

It is necessary to remark, that this case, having been previously before this court, at the instance of the same party, when the judgment was reversed, and the cause remanded; principles were then presented and discussed, and by the court decided, which, in some degree, limit our present inquiries ; and, that according to the practice of this and other courts, when principles have once been determined here, they are ever afterwards to be regarded as the law of the same case, if subsequently brought up for further revision. We then recognised the principle, that possession of a note, bill, &c. constitutes prima facie evidence of right; but that when it became material for the purpose of defence, that the plaintiff’s interest or capacity in the suit should be known (and it may be rendered so in every case by the issue) then to permit the defendant to make the proof, does not infringe any rule of law, and may promote justice in many cases : also, .that the plaintiff’s right to recover, in such cases, depends on the truth of the fact, whether or not he be the owner of the instrument; and notwithstanding the legal presumption of ownership, it is subject to be rebutted, and if successfully done, the plaintiff' must fail in his action; that to determine the issue of payment or set. off, it might be indispensable to know, in whom the interest of the note resides ; and that the act of ownership having been directly in issue, and evidence offered by the defendant to rebut what was only a legal presumption, he was entitled to the benefit of the proof. It is true that on the former occasion, we intimated an opinion, that if the plaintiff held the note only as agent for the right-ownerj an¿ ha¿? by his sufficient authority, sued in his own name, he could recover; but if, on investigation, the contrary appeared, he could not. Then we gave no sanction to the idea, that if it appeared the plaintiff sued only in the capacity of agent, the defendant was not entitled to every matter of defence, he could have had, if the suit had been brought in the name of the principal: nor was the manner in which it was supposed an agent could sue, defined., Whether in his own name, as the legal owner, or as the representative of the principal, expressing the capacity of each, was left for future consideration ; but it was then expressed, that the authority of the agent to sue in his own name, should appear. Among other considerations, it may be material to inquire if the contrary implication would not arise from the common relation of client and attorney at law.

^ *s sa^ that “ possession is prima facie evidence' of property in negotiable paper, payable to bearer, or indorsed in blank, and sueh a bona fide holder can recover upon the paper, though it come to him from a person who had stolen or robbed it from the true owner, provided he took it immediately in the course of trade and for valuable consideration, and under circumstances of due caution; and he need not account for possession of it, unless suspicion be raised.” This is understood to be the current doctrine, recognised in a great variety of cases, both English and American.

It is on this general principle, that the counsel for the defendant in error, is understood to contend, and the Circuit Court to have decided, not only that the agent could maintain the suit in his own name alone, without any interest in the note, but also, that before the defendant could avail himself of any defence which existed against the note in the hands of the payee, it was necessary he should first prove that the note was transferred by the payee after it became due. Yet the same authority declares, that “ as between the ori* ginal parties, these provisions do not apply, and the consideration may be inquired into; and that it may be inquired into,” when the indorsee took the paper with no tice of the illegal consideration, or of the want of it, or of any circumstance which would have avoided it in the hands of the indorser'; or when not taken in the course of mercantile business, or after it was due. According to this doctrine, it is obvious, that if one who is not a bona fide holder, for a valuable consideration, sue upon a note as indorsee, and a fortiori, if he sue as bearer, the defendant is entitled to every equitable defence against the note that he could make if the suit had been brought by the payee. One suing merely in the capacity of agent, without any interest, (as is understood to be the case here) can occupy no better grounds. — ■ This right of equitable defence, is admitted by the counsel for the defendant in error, and he insists that the record shows that Bryant had this privilege, and could show nothing: but the record shows that this privilege was not allowed to the full extent. It seems to have been allowed only by previous proof, that the note was transferred by the payee after it became due.

This is conceived to have been an unauthorised restriction of the right.. By the common law it was absolute and general, when the plaintiff had. not acquired his right in the usual course of trade, for a valuable consideration ; and by the statute of 1812, concerning the assignment of bonds, notes, &c. the defendant was entitled to the benefit of any payment, set off, or discount, which had arisen against the note, previous to notice to him of a legal transfer thereof, and this equally, ■whether the transfer was before or after the note became due. If it be contended, that the plaintiff below, sued merely as’ agent or attorney for his principal, who was a bona fide , holder, for a valuable consideration, my reply is, that no such > person is shown in the proceedings, so as to be brought within the cognizance of the court, and therefore, cannot receive Its prelection,

The case mainly relied upon by the counsel for the defendant in error, is that of Mauran vs. Lamb. It is true, that the Supreme Court of New-York there held, that one holding-a check or note, payable to bearer, as mere agent, may sue oh it in his own name; and it does not lie with the opposite party to object to the plaintiff’s want of interest. The court recognised the rule, which I admit to be sound, “ that the bearer of a note of bill, payable to bearer, need not prove a consideration, unless he possesses it under suspicious circumstances.” I also admit, that the suspicion alluded to, has a more particular reference to fraud, illegality, or some impropriety in the manner of obtaining the instrument, than to the interest of a plaintiff therein, to whom the owner has duly confided the paper for collection or otherwise ; but by analogy, the same principle applies to all cases, in which suit is brought in the name of one having no interest in the demand, and without legal authority to sue and recover upon it.

It is also worthy of notice, that the instrument sued on in the case last referred to/was rather in the nature of a bank note, than an ordinary individual promissory note. No person was named in it as payee. It was a check on a bank, made payable to No. 25, or bearer, which contemplated no other indicia of ownership than that of possession. The authorities referred to in support of that decision, are cases, in which the right to sue in the name of agents or trustees, was given by indorsements either in full or in blank; and where, ' in such cases, it was held that the defendant should be permitted to avail himself of a defence against the original party. The court there inclined to admit, that in such case the defendant could not plead a set off against the cestui que trust; that their statute might apply alone to the parties of record. However, we might be disposed to consider that question under our statute, the unavoidable consequence of sustaining the right of the plaintiff to sue in his own name, as the immediate assignee of the payee, without any interest, would be to deny any protection to the cestui que trust, or any other whose interest or privity is not disclosed by the proceedings.

In this case, the inference to be drawn from the declaration, is, that Owen was the immediate assignee, by delivery, of Robinett, the payee of the note. Then,, when it appears that the plaintiff has no interest in the suit, it follows that he has no claim to the attitude of a bona fide holder for & valuable consideration, or of one who has received it in the usual course of business. The authority mainly relied upon in the case referred to, (of Mauran vs. Lamb) was the case of Payne vs Edin, where the plaintiff had no interest, but was merely a trustee for others, and no objection was taken to Ins want of interest. It is thus noticed — “ the question was as to the consideration of the note, and that being illegal, the plaintiff failed. Thompson, J. — who delivered the opinion of the court, considered the cause in the same point of view as if the original parties were before the court.” It is necessary to observe, that in this latter case, the 'plaintiff’s want of interest ’was not made an' objection to his right of action ; also, that if if had been, the plaintiff in fact held the note under an endorsement, which vested the legal title to the paper in him. It'was, therefore, not a parallel case to the present, nor to' that in which it was quoted, unless the bank eheck payable to No. 25, or bearer, was viewed as cash, or as a bank note passing as money, and vesting the right in any who might be the possessor for the time being. It is only by so considering its that the decision can be reconciled with the current decisions in that state.

The case ef Ballard vs. Bellf, which has been referred to by the counsel for the defendant in error, contains’ a useful explanation of the principle applicable to the case of Mauran vs. Lamb. It draws a clear distinction between the nature of the instrument declared on in either of these cases, and the note now under consideration,

That was an action of debt, brought on a bonk noce payable to W. Pitt, or beam', which name was admitted to be a mere fiction, adopted according to bank usage. The suit was brought in the name of a citizen of a different state.' Objection was made for want of jurisdiction, that the case fell within the exception as to promissory notes and dioses in action, created by the judiciary act of Congress, of 1789 ; and that the plaintiff" was bound to state all that was necessary to gire jurisdiction to the Feder al Court; that the plaintiff was to be regarded as an assignee, and it did pot appear that the suit, if in the name of the assignor, would have been within the jurisdiction of the court. Judge Story overruled the objection. He said, “ to bring the case within the exception, the action must not only be founded on a chose in action, but it must be assignable, and the plaintiff must sue in virtue of an assignment. A note payable to bearer, is often said to be assignable by delivery ; but in correct language, there is no assignment in Hie case. It passes by mere delivery, and the holder never makes any title by or through any assignment, but claims merely as bearer.” ■ That the case was stronger in relation to bank notes, for, in the common transactions of life, they pass by delivery as cash. That even a payment to W. Pitt, if a real person, in a case like that, “ would be no discharge of the note as against a subsequent bearer, bona fide, for a valuable consideration ; for bank notes payable to bearer, are always deemed good while they remain in circulation, notwithstanding they have been presented to the bank and paid by the bank.” That in case of notes payable to bearer only, it is impossible for any court to say to whom in particular the notes are originally payable, for no person in renum natura is specified. He also said, the whole object of the bank would be defeated, if when notes are made payable to a fictitious payee or bearer, the holder could not entitle himself to recover without showing an assignment or delivery from the fictitious person. Now if We apply this doctrine to the check in.Mauran vs. Lamb, that as it was payable to a fiction or a mere ideal thing, so that in legal contemplation it does not admit .of an assignment, even by delivery; but that bare possession, for the time, being, vested the legal right in tiie bearer, as in the case cf bank notes, or other money, then the case of this check does not apply to the present.

It is quite clear that the check did not admit of an indorsement by the payee, or of any ordinary assignment. The note under consideration did; being payable to Robinett. He was competent to assign it by indorsement or delivery, as was also any subsequent holder. And though bare possession of it was prima facia evidence of ownership, it was nothing more — and the proof has established the contrary. If it be admitted that any one in whom the legal title to a negotiable or assignable security has vested, without any individual interest, may maintain a suit upon it in his own name ; it does not follow, that an agent or attorney, to whom the paper has been delivered for a different purpose, has the same right. If by law, the agent is not', under the circumstances,. entitled to sue in his own name, the consent merely, of the principal, cannot confer the privilege. Numerous authorities authorities cited by the plaintiff in error', show the true 'principle to be, that the existence of an ordinary agency, or such as arises from the relation of client and attorney at law, does not authorise the attorney to sue in his own name; and - that the bare consent of the principal appearing in evidence on the trial, does not remove the objection.

In the case of Givin vs. Cantim, an action of assumpsit was brought on a receipt given by the defendant to Simmons,^ for a paper security for money to be collected by the defendant. Simmons had given to the plaintiff a power of attorney, authorising him, for said.Simmons, and in his name, and to his use, to ask, sue for and receive the money, &c. being a general letter of attorney, in the common 'form. The court decided that the suit could not be sustained in the'name of ■ the attorney ; and stated as the objections, that he had no bona fide interest — was a mere attorney to collect the debt, and that there was no express promise by the defendant to pay the money to him ; also, that the letter of attorney was revocable, and there was no implied assumpsit to the plaintiff.

In the case of Piggold vs. Thompson, the defendant had agreed, in writing, to pay the rent of certain tolls which he had hired “to the treasurer of the' commissioners.” The plaintiff was the treasurer at the date of the contract, and so continued during the pendency of the suit. The court held, that no action for the rent could be maintained in the name of the treasurer; that the manifest intention of the agreement, was, that the defendant should pay to any person whom the commissioners should choose to make their treasurer for the the time being, but by law a debt is not so assignable.

In reference to these two latter cases, and as a further test of the principle, let us suppose, that the attorney or treasurer had died pending the actions, what would have been the consequence ! Could their representatives have prosecuted the actions ? Surely not — if they had no beneficial interest in • the suits, and could have been removed by the principals at pleasure, as was obviously the case. Then apply the same test to the case under consideration, and the same objections arise. They are all attributable to the want of legal title to the demand in the plaintiff; and to which I have alluded as an insuparable objection to the recovery.

It is very clear that the same difficulty does not exist where actions are brought in the name of trustees duly appointed, . or of indorsers of assignable securities; because there the legal title is vested in the plaintiff, whether he have any individual interest or not. Such is not the case with a mere, agent or attorney to whom the paper has been delivered for collection, without any actual assignment of the right.

The bare possession of an assignable paper, with the consent of the owner to sue in the name of the agent, does not impair the rights of the principal; he is still the legal holder, and no other can sue in his stead.

The case was entirely different in McClausland vs, Drake, where there was an actual indorsement, vesting the legal right in the assignee, and there was no other objection than an alleged composition of felony, in which the indorser and indorsee had participated.

The case of Gilmore vs. Pope, is strongly applicable to the principle in question. There the defendant had subscribed for shares in a turnpike, and promised to pay the plaintiff as agent of the proprietors. It was held that the agent could maintain no action — that the suit must be by the proprietors in their corporate capacity; that the consideration was between them and the defendant alone.

The case of Thatcher vs. Winslow, though not now duced, is sufficiently recollected, to satisfy me that it sustains the principle contended for by the plaintiff in error, to the fullest extent; perhaps goes farther than necessary for this case — that no person can sue even as indorser of “a negotiable note, unless he be the owner, or have some legal or equitable interest. There perhaps, the expression in the in-dorsement, that it was for the benefit of the indorser, may have prevented the intended assignment of legal interest.

The decision of the court, in the case of Johnson, use of Stone vs. English, is strongly opposed to the principle which would sustain this right of action.

There are various other cases condemnatory of this right— (See Vischin vs. Yates —Yates vs. Foot -and Bainbridge vs. Downey. ).

If the rules of law, correctly expounded, will not reach the justice of this particular case, I can only regret it. Our province is to declare the law as we find it. In its application to this case, we hold it to be — that a mere agency, such as is created by the relation of client and attorney, does not authorise the latter to sue in his own name alone, even on a note payable to a particular person or bearer, and that the consent of the principal, appearing in evidence, does not remove the objection: also,' that if the plaintiff’s right to sue in his own name could be sustained on the requisite authority, still the defendant would be entitled to the benefit of any legal defence, which would be available between the original Parties> whether it arose before or after the maturity of the note ; that no intermediate holder, in whom the interest may have vested, being'disclosed by the proceedings, the rights of none such can be recognised and protected; therefore, we are unanimous in reversing the judgment.

*

      3 Kent, 51.

        3 Kent, 52.

      7 Cow. 174.

       3 Came's R. 213.

       1 Mason 243

       10 John. 387

      3Bos. & Pul. 147.

      5 Mass. Rep. 491.

       5Mason, 58.

      1 Stew. 169.

       11 Johns. 25

       12 Johns. 1.

      6 Mass. Rep. 253.


author: By Mr. Justice Thornton : . ,

text:
    Joshua Cost vs. N. Genette & J. W. Smith.

      Error from Shelby Circuit Court — Before the Hon. A. Crenshaw.
    An attorney, in whose hands a promissory note has been placed for collection, cannot pay it off to the maker thereof, in discharge of his own debt; and such payment, if made, will not exonerate (he maker, at the suit of the holder.
    Assumpsit to recover the amounl of a note of hand executed by the defendants. It appeared that the note in question, was placed by the plaintiff in the hands of an attorney at law, for collection, who without the knowledge or consent of the plaintiff, paid over the same to Genette, in satisfaction of his (the attorney’s) own debt. The court below gave judgment against the plaintiff, who assigned the same as error here.
    Moody, for Plaintiff — ■
    Cited 3 Am. Dig. 47 — 5 Randolph, 639 — 9 Johns. 263-r-6 Sergt. & Loub. 459 — 11 Johns. 464 — 10 Johns. 220.
    Shortridge, contra.

   By Mr. Justice Thornton : . ,

This -was an action brought by the present plaintiff,' against the defendant, in debt, for the amount of a promissory note; which, according to an agreed state of facts, the plaintiff had confided to the hands of an attorney at law for collection, and which, by an agreement between the said attorney and the defendant, had been surrendered to him in payment, and dis-sharge of the attorney’s own debt to the defendant. The. case of Gullet and Lewis, decided by the court at a former term, is considered to embrace the principle which ought. to govern this.

The counsel for defendant in error-, suggests as a circumstance distinguishing the cases, the actual surrender and can-celment of the note in this case ; whereas, in that, the transfer of the note had not been actually made.. I apprehend that the decision in Gullet and Lewis was not affected by the circumstance here adverted to. The principle declared by the court, was, that an attorney was the especial agent of his client, to receive the money, upon,the note committed to him ; and that the act done by him was in violation of the authority granted ; and so not binding upon the principal. The doctrine of this case has since been, upon several oocasions re-cognised by this court, and has regulated its course of decision — as in Craig vs. Ely, and in Kirk vs. Glover & Gaines, at the last term. The principle, settled in those cases, in itself, is so far from being questionable, that it is in fact, one of the very maxims of the law; and its symmetry would bet marred, to say the least, by excepting the case of attorneys at law from its influence. Nor do I see that such subjection to a universal rule, can impair in the least, the fair fame of the profession. It is to be sure, no less true in this than in every other instance, that the existence of any law enforcing duty, implies at least, that such duty may be, violated; yet it never should be held as a reflection upon virtue, that laws exist to punish vice. The true point of honor in every case, is to perform duty — not to desire an exemption from the penally °f its neglect.

I will take occasion to remark, that although I consider the general doctrine of agency, so essential to the advantageous conduct of the commerce'of the world, as applying to the relation of client and attorney, yet perhaps in no other case does the safety of the community require it less, than in this. It may be from that “ esprit du corps,” which, to some extent, actuates every individual of a classbut I have thought, that no caste in the community gave better proof of trustworthiness, than the profession of the law. Their whole business is confidential, and at all times, much of the property of the country is subject to their disposal. That such confidence is rarely. broken, speaks a higher eulogium upon the honesty of the profession, than any language Í could use.

It was put with'much ingenuity by the counsel, that if the - attorney could collect the money, and then pay off his debts with it, why not permit that to be done, which, in its result, is just like it — that is, pay off his debt at once with the note, flow, though these cases are alike, yet “ nullum simile cst idem” The only reason why the first is allowed, is, that, from a necessity, it cannot be avoided, and so does not fur-” nish any argument in favor of what, though no worse, may be avoided. It is a homely saying of our law, derived from the pastoral life of our ancestors, that money has no “ ear mark,” and for'that reason cannot be followed through the pockets of men and identified, so as to be reclaimed : but if an agent were appointed to receive a bullock, and after its receipt, he were to pay it off to his own creditor, the principal could pursue it'. This is a difference, not in principle, but the subject matter of the agency.

' Let the judgment be reversed, and rendered for the amount of the debt, and damages.


author: .By Mr. Justice Saffold.

text:
    Asa White vs. Willis Martin.

      Error from Greene Circuit. Court — Before the Hon. A. Crenshaw.
    A recovery inooe form of acliou, will bar a suit in another form brought on the same cause.
    Where A. brought trover against B. and in that action recoverod the va- , lue of a woman slave — held, that a subsequent action brought toreco- ■ ver her issue, born pending the first action, and not included in it, ' would not lie* , '
    This action was trover for the recovery of two negrdes. In the year 1824, Martin instituted an action of trover against White, for the permanent conversion of sundry negro slaves, among whom was a negro woman slave named Charity. In .that action Martin recovered a judgment against White, fin#5 the full value of the said slaves, which judgment was satisfied In full. While the said action was pending, the two negro slaves, now the subject of the present suit, were born of the slave Charity, and no recovery liad on them. In the court below, there was a judgment for the plaintiff, Martin.
    On the trial, the defendant, White, offered to prove, in mitigation of damages, that the slaves in contest, had been . born in his possession, and raised by him. The court sustained an objection to this testimony, and the decision of the > court being excepted to, was brought before this court for re- * vision.
    Stewart, for .Plaintiff,
    Cited 6 Bacon, 078, 679 — 4.Bibb, 270 — 4 Com. Law. Rep. 499 — 4 Bacon, 7 — 2 Path. Qhlig. 18 — Cro. Jus. Til — 2 Ruym. 1216 — 1 Johns. 65.

      Shortridge, and Erwin, contra.

    — 4 Mass. 466 — 4 Pick. R. 467.
    Stewart, in. reply.
    2 Stewart, 38, — 1 Strange, 142, — 1 Wilson, 23,-Eliz. 116.
   .By Mr. Justice Saffold.

The action was trover, by Martin against the' plaintiff in error, in the Circuit Court of Greene county, for the convert sion of two negro children. ..

The suit was tried on aq agreed -case, as follows : In. 1824, Martin brought trover against'White for, the perma-r neilt conversion of several slaves, alleged to be the property of Martin. Among them was a woman, Charity. In 1831? Martin recovered the full value of the slaves sued for, and that judgment has been satisfied. Pending that suit, the-young'negroes, the subject of this action were born. Thesé children not being included in that suit, no recovery was had' ¿or their value. A demand was made of all the slaves first» sued for, including Charily, before the commencement of the , , former action. No other demand was made for these now* . sued for. White took the negroes ñrst sued for, wrongfully. ■ If on these facts the Circuit Court should be of opinion the plaintiff was entitled to recover, it was agreed that there should be an inquiry of damages — otherwise, judgment for the defendant.

In 1832. the court gave judgment for the plaintiff, Martin. A writ of inquiry was executed, and the damages assessed afc , three hundred and forty-five dollars. On the inquest of da_. mages, White offered to prove in mitigation, that these chib dren had been born in his possession, and had been reared by’ him; and also offered to prove, what would have been a rea^ sonable compensation for nurturing and raising them, in mi- ' ‘ tigation of damages. This evidence was rejected, and for this White excepted.

It is assigned as cause of error,

1st. That on the agreed case, the judgment should have been given for the defendant below. .

2d. That the evidence offered in mitigation of damages, showing the expense of nurturing and raising the negroes in , question, ought to have been admitted.

The case presents . a question apparently new. In this precise form, it has not before occurred within the recollection of either member of the court. The learned counsel ad-init, that their researches have not discovered any direct adjudication on the poipt. The question must, therefore, depend on principle, and its analgy to other cases. From the nature of the subject, if the facts of the case furnish aground of action, it might be well supposed similar suits would not have been extremely rare. That a recovery in an action of, trover, for the permanent conversion of chattels, operates as, a transfer, vesting the legal title in the defendant, is a princi-. pie of law now well settled, and not recently contested. The, doctrine is the same in relation to trespass, when the property is destroyed, or the owner deprived of its value. In either case, “ the damages recovered are the price of the chattel so transferred by application of law — “ solutio pretii emptionis lex iuibtier.” Chancellor Kent so treats the subject, and says, “ the books either do not agree, or do not speak with precision on the point. Whether the transfer takes place in contemplation of law, upon the final judgment merely, or. whether the amount of the judgment must first be actually, paid or recovered by execution,” he reviews various authori-. ties, tending to different conclusions on the point. • Among others, he refers to Drake vs. Mitchell, where it was said by Lord Ellsnborough, “ that a judgment recovered in any form of action, was still but a securit^for the one general cause of action, until it was made productive, in satisfaction to the party and until then, it would not operate to change any other collateral concurrent remedy, which the party might have.” — ■ This, the chancellor considers the more reasonable, if not th® more authoritative conclusion on the question.

As the judgment in question was satisfied, before the institution of this suit, 'the principle alluded to, is no further material to this case, than it can influence the question as to the point of time to which the change of title relates — * whether to thef conversion, the judgment, or the Satisfaction. Admitting the latter to be necessary to the consummation of the transfer, it does not follow that the relation is not to the former. That such should be the relation, appears a necessary consequence of the principle — that the plaintiff seeks redress alone, for the damages arising from the conversion— and that the death or the destruction of the article by any ' casualty afterwards, is the loss of the defendant. Having' done the act, which the plaintiff may treat as a purchase, if he choose to elect that remedy, the defendant must abide the. consequences of the purchase, if the remedy be prosecuted» withsucces. Even in the action of detinue, as the plaintiff is entitled to recover the alternate value of the property, if thespe-. cific article cannot be obtained, the plaintiff, in the" event of the • death or destruction of the property, pending the suit, may* still recover the value. It was so held by this court, in White vs. Ross, and by the Supreme Court of Kentucky, in Carrie vs. Early. In the latter case,, Chief Justice Boyle observes, “ were the recovery of the specific thing the absolute and sole object of the action of detinue, the destruction or annihilation of the thing would necessarily defeat, the action ; but as * the object of the action is to recover the'thing only on condition that it can be had, and if not, then its alternate value, it results that the action cannot be defeated by the destruction of the thing, unless it were under circumstances that would excuse the defendant from being responsible for its value.”

I consider the principle too well established to require any reference to authorities, that in trover, the plaintiff has a right. ■ to recover the value of the property converted, and interest, on the amount from the time of conversion, to the date of the. judgment, as the legal measure of, damages. If there be a feW" cases to the contrary, as in Mercer vs. Jones, we cannot regard such as sound authority. But I am not prepared to say that this measure is the highest limit that the plaintiff can legally claim, under peculiar circumstances, and where the' justice of the case actually requires more.

One authority has been cited for increasing the measure, where it appeared clearly inadequate to the plaintiff’s loss, and the defendant’s gain. In Greening vs. Wilkinson, the action was trover, for East India'Company’s warrants cotton. It appeared in evidence, that the cotton was worth six pence per pound, at the time of the refusal to deliver it up, but at the time of trial was worth ten pence half penny.— Abbott, Chief Justice, ruled, that the amount of damages was for the consideration of the jury : that they might give the value at the time of the conversion, or at any subsequent time, in their discretion; because the plaintiff might have had a good opportunity of selling the goods if they had not been detained. To the idea that the plaintiff might have purchased other cotton at the low price at the time this was detained, the court replied, that by the detention the plaintiff may have been deprived of the means of purchasing. The principle to be extracted from this decision, I take to be,' that though the plaintiff may legally recover the value of the article when converted-, with interest thereon ; yet it is within the province of the jury to allow him the subsequent enhanced value, without interest, if in their discretion, justice requires it. But as contended in argument, let this principle be settled either way — that the value of the property at the time of conversion,, or at the time of the trial, was the true { measure of damages. It is not decisive of the question, whether these slave children, born pending the suit for their mo-, ther, can furnish a legitimate ground for this subsequent action. If the plaintiff below was entitled to recover dama-, ges only for the injury of which the article was susceptible when converted ; or if he was entitled to recover, also for the /issue pending the action, and failed to do so, the right must have terminated with the former suit. For the same act of trespass, or conversion, but one satisfaction can be had. In Hill vs. Long, before the court of appeals in Virginia, the plaintiff had prosecuted an action of trover for a horse, and and failed to recover: he then brought trespass for the forcible taking the horse from his possession, not being his property, and stopping his waggon and team, the residue of the horses being his property. The court held, that the action of trover was a legal bar to the subsequent action of trespass ; that by bringing trover, the plaintiff had waived tins trespass. The court remarked, that “ a party is not precluded from bringing trover or detinue, because the taking was violent. He 'may waive the trespass, and admit, as these actions do, that tlie property came lawfully into the possession of the defendant ; and this the defendant cannot deny or traverse, so as to defeat the action, by showing that he took tortious possession.” They determined that it was all but one act, consequently but one cause of action ; and that the plaintiff had his election to sue for the whole in trespass, or sue in trover or detinue, but could not carve two suits out of it., -

The principles of that decision go to deny the right of a ¡second action for the same conversion, or for the same wrong, whether tortious or otherwise ; also, to show, that the tort in trover or detinue, is always waived. All the arguments used in this case, founded on the supposed tort, must be considered inapplicable, and even if not, the former suit and judgment would preclude further inquiry into it.

It is contended, that justice will not permit White t@ retain the children under his judicial title to the mother, because he has paid damages only for her ; and that these furnish a subsequent cause of action. We would incline to admit, that ' j the plaintiff might, at any time before the former trial, unless | barred by the statute, have dismissed that suit, and renewed t, his action, including the children. Whether in that event, a ■ demand of the children also would have been necessary, is not a question in this view of the case. But we think, after hav-^i jug the benefit of a judgment, and satisfaction in that action, ; he has, in legal contempIatioar-Mljedress for,all_the conse- ' quencos of the original inpry- He is presumed to have recovered the full value of the slaves, converged at the time of \ the taking, with interest thereon; that this is as much as he | could have sold them for; and he has elected to convert the taking into a purchase by the defendant* The services of the mother of these children, pending the suit may have been •of more value than the issue# Suppose one of the .subjects of the former suit to have been an able or skilful mam, the' value of his services might well have been four fold the nett ■ value of these children; yet, in either of these cases, the va- - lue of the property at the time of the conversion, with interest, or at most, the enhanced value at a subsequent period, is all that the law deems necessary to adequate, redress. All the qualities of the article converted, are proper for the' con* sideration of the jury, in determining value ; and doubtless, a jury would placea higher value on a female slave pro-« mising issue, than on one of a contrary description; if she has proved the issue, between the conversion and the trial, she has furnished the best evidence of that quality. These circumstances, it is believed, are entitled to their influence with the jury ; and while increasing the damages on account of the developement of the prolific nature of the female., they would of course consider the expense of nurturing and raising the offspring. In this way, we believe, ample justice can be done without infringing any rule of law. We think that the Circuit Court erred, as supposed in the first assignment of error. , . '

The disposition of the first point, supercedes the necessity of any inquiry into the second. -

Let the judgment be reversed. •

      2 Kent’s C. 319.

      3 East, 251.

      1 Stewart.

      4 Bibb, 270.

      3 Camp. 447

      11 Eng.Com L. R. 499.

       Randolph, 457.


author: By Mr. Chief Justice Lipscomb :

text:
    Hatter’s Ex’ors vs. Lewis W. Greenlee.

      Erroi' from Greene Circuit Court — Before the Hon. A. Crenshaw.
    Where A. being arrested under legal process, on a charge of felony, and to procure his discharge, executes a deed lo B., and the arrest is not evidently feigned and malicious, such deed cannot be avoided on the ground of duress of imprisonment.
    Every illegal restraint of a man’s liberty, is duress of imprisonment — and where the warrant is regular and legal, if it appears that the arrest under it, has been procured on a false charge, without probable cause, and as a pretext to cover an illegal design, it will be duress of imprison- • ment.
    If a man be confined on a well founded charge, mal-treatment while under arrest, will be considered duress of imprisonment, so far as to invalidate any act produced by it.
    This was an action of trover, for the conversion of a slave^ brought against the testator of the plaintiff s in error. Green-lee claimed a recovery in this case, on the ground, that being under duress of imprisonment, threats, menaces, perturbation of mind, and false accusations, he had been induced to execute to Hatter, a bill of sale for a certain negro boy, Daniel — to recover whom this action was commenced. Also, that the same had been made as a composition of felony.
    The facts, as they appear from the record, show, that Greenlee had been arrested in the state of Mississippi, on the charge of having stolen or concealed a negro slave, the property of Hatter; that when brought before the justice of the peace, who had issued the warrant, a compromise took place between Hatter and Greenlee ; the condition of which was, that Greenlee, in consideration of his discharge, should exe-•ute it bill of sale to Hatter, of the slave Daniel, and give hi* iiotc for five hundred dollars. Hatter was to dismiss a suit for damages, then pending against Greenlee, and pay certain costs. Pursuant to this agreement, the slave was delivered.
    There was some evidence introduced, for the purpose of showing that Hatter had probable cause for arresting Green-lee ; and in support of the defence, that the imprisonment was lawful.
    , The court charged the jury, that if the plaintiff, Greenlee, was under duress of imprisonment at the time the bill of sale for the said slave was executed, taken in connection with the threats and disturbance of mind under which he labored — from this they might infer, that the bill of sale, and the delivery of the negro, were not his free and voluntary act; and if so, the contract was void, and the plaintiff. was entitled to recover, although the imprisonment may have been under a lawful warrant. Also, that if the offence was under felony, the parties might compromise ; but that this principle had no bearing on the case before them. Under this charge, the jury rendered a verdict for the plaintiff, and exceptions having been taken to the opinions of the court, as expressed in the charge, the same was now assigned as error.
    Erwin, for Plaintiff.
    1 Bl. Com. 137 — -6 Mass. Rep. 506 — Chitty on Contracts, 192, 193.
    Stewart, contra.

    2 Bacon, 402 — Chitty mi Con. 53 — 6 Mass. R. 506 — Powell on Con. 9, 31 — 13 Mass. R. 371 — 16 Ves. 159 — 2 Stark. 22v. 505,210 — 2'Strange, 915 — Comyn Con. 315,334,346— 2 Stark. JSv. 481, 483 — 11 Mass. R. 879. ■

   By Mr. Chief Justice Lipscomb :

This wás an action of trover, to recover the value of a negro slave. Tiie plaintiff, Greenlee, had conveyed the slave to Hatter, by his deed, and at the same time had delivered ^im. It appears from the bill of exceptions, that Greenlee claimed a right of recovery in this action, on the ground of duress of imprisonment, threats and menaces, perturbation of mind, and false accusation of felony ; and also," that the bill of- sale was given on the composition of felony when he executed the same to Hatter. The testimony seems to have been taken by depositions, and copies have been appended to, and made a. part of the bill of exceptions. The defendant contended, that the imprisonment was lawful, being under a warrant from a justice of the peace. On this, the-court charged the jury, that if the plaintiff, Greenlee, was under duress of imprisonment at the time the bill of sale for said negro was executed — taken in connection with the threats and and disturbance of mind under which he labored, from this,, they might infer, that the bill of sale, and the delivery of the negro, was not the free and voluntary act of Greenlee ; and if so, the .contract was void, and the plaintiff would be entitled to recover, though the imprisonment may have been under a lawful warrant.

This charge of the court is assigned for error.

For the purpose of testing the correctness of the charge objected to, it will be necessary to refer to the circumstances under which the bill of sale was executed, as they appear from the evidence appended to the bill of exceptions. It ap_ pears that Greenlee was arrested in the county of Monroe,, in the state of Mississippi, on . a warrant charging him with stealing or concealing a negro boy named Alexna-der, the property of Hatter, and that he was taken before one Bartlett Sims, a justice of the peace ; that on the return of the warrant, a compromise took place between Hatter and Greenlee, by which the latter agreed to give the former the negro boy Daniel, (the same on whose account this action was brought,) and his note of hand for five hundred dollars ; that Greenlee accordingly executed the bill of sale to Hatter for the boy, aijd sent for and delivered him up to Hatter. There is nothing in the testimony, from which the inference could be drawn, that the arrest was malicious, or that it was made a pretext only to cover the duress of imprisonment.

In 'Bacon the doctrine is laid down, that where a person is illegally restrained of his liberty, by being confined in common jail, or elsewhere, and during such restraint, enters into a bond or other security to the person who causes the restraint, that he may avoid the sáme, for duress of imprisonment. But if a man be imprisoned by order of law, the plaintiff may take a feoffment of him, or a bond for his satisfaction, and the deliverance of the defendant, notwithstanding the imprisonment; for this is not by duress of imprisonment, because he was in prison by course of law; for it is not accounted in law, duress of imprisonment; but where either the imprisonment or the duress that is offered in person, or at large, is tortious, and unlawful — for execatio juris non haist injuriam. The doctrine here laid down, as 1 understand it* is this, that every restraint of a man’s liberty, without warrant of law, is a duress of imprisonment; and further, that when there is a legal and regular warrant, that if on going behind such warrant, it should be found to be bottomed on a false charge, without probable cause, and only used as a feint or pretext to cover an illegal design, it will be considered in law as a duress of imprisonment; and farther, that when' the charge is well founded, if the prisoner is mal-treated, whilst so confined, that it would make his confinement duress of imprisonment, so far as to invalidate any act of his produced by such mal-treatment. The cases referred to by the counsel for the defendant, do not support a different doctrine from that laid down in Bacon, but as far as they go, illustrate the same principles. That of Watkins vs. Baird, was one of ar- ■ , „ . , ’ , , „ rest on a raise and reigned pretext, merely to get the defendant in his possession, to extort from him a release; and these facts were specially pleaded to destroy the bar set up by the release. Judge Parsons, bases bis opinion on the text we

have cited from Bacon, and held the release void, as extorted by duress of imprisonment, because the arrest, was founded on false and feigned pretences. The case in Veseg’s Chancery Reports, was a proceeding in chancery, by,the heir at law, to set aside a deed of settlement, made by a wife on her husband, when abroad with him in Flanders.. The deed of settlement was procured under circumstances of great cruelty, long protracted on her, and persisted in by her husband, avowedly for the purpose of extorting from her a deed of settlement. These circumstances, though not amounting to duress of imprisonment, were sufficient, in the opinion of the chancellor, Lord Eldon., to set aside the deed. It was admitted, that it would have been difficult, if not impossible, to have avoided the deed of settlement, at law ; but Lord Eldon said, that although a court of law would have to try the validity of the deed, yet, that on the trial of the issue, the attention of the jury would not be confined to the mere circumstance of executing, the deed; but should be called to the question, whether the mind was not so subdued, that though the execution was the free act of the person, it was an act speaking the mind not of that person, but of another.

To apply the principles we have been discussing, to the case before us — if the Judge only intended to charge, as a general rule of law, that there might be a duress of imprisonment, although the warrant issued by the justice of the peace was a legal one, and such is its fair construction, there is certainly no error in his charge, as we have shown. But when his charge is applied to the facts, as they appeared before him, it seems to me that it was calculated to mislead the jury into the opinion, that a party might avoid his deed, on the mere ground of its having been executed whilst under arrest. Wow, whether the charge, contained in the warrant of arrest, was founded in truth or probable cause, was an inquiry, to which the jury should have had their attention directed by the court, under proper instructions for their government. Whether it was founded in truth or not, was wholly for the jury to decide. Whether supported by a probable cause, was a mixed question,' of law and fact. The Judge should have charged the jury, what facts or circumstances would amount to a probable cause; and the jury should have decided on the existence of those facts. The charge was too broad, in leav- ' ing the jury without instructions, to decide whether there had been -a dufess of imprisonment.

There is another objection to the charge. . It connects • threats and perturbation of mind, with 4he duress of imprisonment, as make weights; and it is as objectionable, as making a great many suspicions, equal in weight to a. direct and positive charge. Now, if the duress of imprisonment was made out in evidence, it was sufficient of itself, without invoking the aid of threats, or perturbation of mind; if it was not made out, it should not have been associated with them.

If there had been such threats used as would amount to duress per minas, that would have been a sufficient and distinct ground for avoiding the deed. Lord Coke has given us the four distinct grounds on which a man may avoid his own act for duress per minas.

First — For fear of the loss of life.

Second — Of the loss of member.

Third — Of mayhem. , ,

Fourth — Of imprisonment.

I have never seen a case, where a man was permitted at law, to avoid his own deed, by setting up a perturbation of his mind, even if it had amounted to a prostration of its fa- ■ , culties. Where one has, with an evil design, seduced another into intoxication, with a view to procure his deed whilst in that state, it has in some instances been held (which is now the .prevailing doctrine on the subject) that it was corq-petent for the person so practiced on, to avoid his own act. This doctrine, howoyer, has been received with extreme caution, and not without being often controverted ; and it is allowed, not so much on the ground of the temporary mental alienation, as on the fraud of the party who has resorted to device to circumvent and obtain.such an undue advan-taS'e- When the case in 16 Vesey, cited above, is fully con^ -t gjves no sanetion to this doctrine. It will be re_ collected that, in that case, the bill was filed by the heir at law, to set aside, not an act of his own, but of the person to whom he succeeded as heir at law, who was a married woman at the time she had executed the deed. This he might have done, even if it had been a case, where she herself would not have been permitted to avoid the act. If she had been a lunatic or non compos, she herself could not have set it up in avoidance of her deed, but her heir would not have been under the same restraint, and after her death, he' might have set it aside on that ground. That too, was a case of a settlément, made by a mat ried woman in favor of her husband. Such settlements have always been looked on by the court of chancery with a great deal of suspicion, on account of the undue influence the husband may at all times exert over her, to sustain such settlements; therefore, it should always appear clearly and manifestly, to be the free and voluntary act of the wife.

We are of the opinion that the judgment must be reversed* and the cause remanded.

      2Bacon,402. Title, Duress. letter A.

      6 Mass. 508.

      16 vol. 156.

      2 Coke’s Ins. 483.


author: By Mr. Justice .Saffold.

text:
    Administrators of John May vs. Rebecca May.

      Error from Greene County Court.

    If in the trial of a cause, a power of attorney comes in question, proof of its contents, or of the name of the attorney in fact, mentioned therein, is not admissible as testimony. The power of attorney must be produced, or its absence accounted for in the usual mode in which the contents of written papers are admitted to be proved.
    On the final settlement of the estate of John May, deceased, in the Orphans’ Ceurt of Greene county, Rebecca May, the defendant in error, had become entitled under an order of distribution, to a certain sum of money, as her distributive share of said estate. At her instance a scire facias issued against the administrators, calling upon them to show cause why she should not have execution for the same. The defendants, in the court below, showed for cause, that the plaintiff below had been paid in full of her demand, by the transfer of a certain claim which they held against one Ashley in South-Ca'rolina, where Rebecca May resided; and that a full and entire control over said claim had been given under power of attorney duly executed, to her. The plaintiff below then introduced a witness, to prove that the power of attorney above mentioned, had not been made to herself, but to one Stark, and generally, its purport. On the defendant’s objecting to this testimony, as not being the best the nature of the case admitted of, the court rejected evidence of its contents, but admitted proof of the name of the attorney in fact, to whom the same had been executed. To this determination of the court, the defendant below excepted, and on this point the case comes up for revision here.

      Erwin., for Plaintiff.
    Stewart, contra

    — 1 Phil. Ev. 180, 181 — 1 Stark. Evid. 371.
   By Mr. Justice .Saffold.

On the settlement of the estate of John May, deceased, in the Orphans’ Court of Greene county, it was ordered that an ascertained sum of money should be paid by the administrators to Rebecca May, as the full amount of her distributive ■ ( share of said estate. At a subsequent term'of the said court, it was also ordered, that a scire facias issue, at the instance of the said distributee, against the administrators, to show cause why she should not have execution against them for said share, which issued accordingly. Issue having been taken on a plea of payment and satisfaction, exceptions were taken to the opinion of the court on a question of evidence, which is the only point material to this decision. The point may be briefly stated thus — the administrators had ’made proofs, tending to show that the distributive share claimed by the scire facias had been paid; that the payment had been effected in part, under a power of attorney forwarded to South .Carolina,, where Rebecca May resided — the evidence containing expressions implying that the power was to herself. . This proof consisted of facts embraced in an affidavit, offered by one of the administrators, on a motion for a continuance. To avoid delay, the plaintiff b^low agreed to admit, that the absent witnesses would swear to. the facts of the affidavit, and proceeded to trial as though they had done so; but there was no consent on the part of the administrators to waive any objection On their part., The plaintiff below offered to prove by a witness present, that the power of attorney referred to in the evidence against her, was not made to herself, as supposed, but to one Theodore Starke — the object being to rebut -the presumption of payment having been received under it. This evidence having been objected to by the administrators, was admitted by the court. In admitting which, it is contended, the court erred — there being no foun-dalion laid for the introduction of secondary evidence.

The rules are too well established to admit of contest, that the best evidence must be given which the nature of the case admits of, and which is in the power of the party to procure; and that parol evidence is of inferior grade to deeds and other instruments in writing. The-prineipls is equally established, that if the instrument be in the hands of the adverse party, he must have notice to produce it, as a necessary foundation, to secondary evidence of its, contents. If it be in the hands of an indifferent person within the jurisdiction of the court, he can be required by snhytzna duces tecum, to produce it; if without the jurisdiction, it is presumed to be within the power of the party to procure it; or if not the original, a proved copy, by means of depositions or otherwise — and whether or not, the party wishing the benefit of it, must show that ho has used reasonable exertions to obtain the highest evidence. This evidence was intended to prove part of the contents of a written instrument — even a deed. It was not brought within any of the exceptions to the general rule, denying the competency of parol evidence for this purpose; and we are of opinion, the court erred in admitting it — for which the judgment must be reversed, and the cause remanded.

       1Stark. 354 •


author: By Mr. Justice Thornton :

text:
    Pierce & Baldwin vs. Pass & Co.

      Error from Tuscaloosa Circuit Court — Before the Hon- A. Crenshaw.
    The joint effects of a copartnership concern cannot bo appropriated by one copartner, to the payment of his individual debt, without the implied or express assent of the other copartners; and an account raised by one copartner, without the knowledge or consent of the others, can not be set off against a debt due the firm.
    The onus probandi of such assent, lies on the creditor 'of the individual partner.
    The individual debts of a copartner are not recoverable out of the property of the concern.
    This was an action of assumpsit, to recover the amount of an account against Pass & Co. for goods sold and delivered* The defendants relied on a set off, and proved, that by an agreement between themselves and Pierce, one of the partners of the firm of Pierce & Baldwin, the goods now the subject of the present suit, were to be taken in payment for the board of Pierce.' An account, comprising this board, money lent, drinlc, segars, &c. was now insisted on, in off set to the recovery of the plaintiffs ; but no knowlege of Baldwin, or his consent to this agreement, was proved. The plaintiffs offered to prove that the firm of Pierce &■ Baldwin was insolvent j that an assignment of their effects had been made ; and that Pierce had absconded. The court would not suffer this testimony to go to the jury. The plaintiffs then requested the court to charge the jury, that the account of Pass & Co. not being within the scope of copartnership transactions, the agreement of Pierce to pay the same in goods, was not bind ing on the firm.. The court refused to give this charge.

      It was further in evidence, that the account against Pierce, proposed to be set off by the defendants, was, on the books of Pass & Co. charged to Pierce alone. Under this evidence, the jury rendered a verdict for the defendants ; and exceptions having been taken to the rejection of the testimony by the court, and the refusal to charge the jury as required, the same were now here assigned for error.
    Stewart, for Plaintiff—

      Gow o)i Part. 55, 73, 71, 317, 318 — 1 Stewart, 526 — 2 Stewart, 378.
    Peck, contra.

    1 Eqrinasse’s iV. P. Rep. 406 — 1 Dessaus. 537 — Gow on Part. 68.
   By Mr. Justice Thornton :

This w as an action of assumpsit, brought by the plaintiff s¿ as merchants and partners, to recover of the defendants the amount of an account for goods, wares and merchandize sold and delivered to the defendants. The defendants pleaded non* assumpsit, payment, and set off. A bill of exceptions was signed during the progress of the cause, which contains the matters here assigned as error. [ It appears, that under the plea of set off, the defendants introduced an account raised with them as tavern keepers, by the plaintiff, Pierce, for meat and drink consumed by him ; proving by a witness who was their bar keeeper, that it was agreed between the said Pierce and the defendants, that the account so raised, was to be liquidated by goods from the store of the plaintiffs.- Another witness proved that the said Pierce, anterior to the raising of the account so set up, had incurred one for board with him, and that in the settlement which he had with said Pierce, the witness’ account in the plaintiffs’ store was discharged by said account for board, without pny objection made to this mode of its settlément, by the copartner Baldwin, as far as witness knew. The business of the trade was personally attended to by both of the plaintiffs. In reference to this testimony, the plaintiffs moved the court to charge the jury, “that the account for board, &c. not being within the scope of partnership transactions, the agreement of Pierce to pay it in goods, was not binding" on the firm of Pierce & Baldwin”— to give which, the court refused ; but charged, “that under the evidence, the whole account of the defendants so far as proved, was a good set off against the plaintiffs’ demand.”

I think the court was correct in refusing to give the charge as required by the plaintiffs’ counsel, but that there was error - in the charge which was given in its stead.

In regard to the charge sought, I understand it to contain this proposition, that an account for matters purely individual against one member of a firm, cannot by an agreement with that member, be made a charge upon the firm. Now if does not follow as a necessary consequence, admitting the in dividual nature of an account, that the agreement to pay it in the goods of the firm, would not be binding upon the partnership., If such an agreement were unauthorised, then I admit that such would be the case. But however foreign to the concerns of the partnership, the subject of this account may be, if the defendants could establish that by the consent of Baldwin, it was either agreed to be paid by Pierce, out of the effects of the firm, or that the goods in the acpount sued upon, were delivered by his assent, either express or implied, in virtue of the agreement testified to by the witness, in either 'event, the set off would be admissible. ■ I cannot perceive, to be sure, any sufficient motive to induce Baldwin to assent to, or to authorise an agreement by his copartner, so as to bind the firm, touching the most formidable portion of this accountj at least; it being for drinks of liquor at the tavern : for how- ■ ever a small allowance in that particular might be deemed reasonable, the disproportion in this account, of the drink to the meat, was as inordinate as that of the sack,' in the bill of fare of Fallstaft’, to the items of bread. Yet it may have so assented to, as to be binding on the firm, notwithstanding its character. All the authorities concur in the position, the individual debts of a partner may be chargeable upon firm, by the contract of one member, if the other partners sent to such a charge.' But in the particular of the mus bcmdi of this assent, there is a difference between the sions of the English courts, and of our own. There, the sumption is against the partnership, and the firm shall bound by the appropriation of the joint effects, to the ment of an individual debt by one of the parties, unless cab establish a fraudulent collusion between such partner his individual creditor ; or at least a want of authority, either express or implied 'in the debtor partner, so to act. Here, we presume in favor of the firm, and to sustain such a transaction, devolve upon the individual creditor who has thus ceived satisfaction out of the firm effects, or contracted for the firm effects on a consideration wholly private and unconnected with the partnership, the proof of the assent of the other members composing it. j For the English rule upon this point, I refer to Chitty on Bills, 43, 44—8 East, 212—2 Camp. 562. For the different rule, as heretofore adopted by this court, I refer to 2 Caines, 246, &c.2 Johns. 300-4 Johns. 26116 Johns. 34—See the case of Rolston v. Clik, et al.

With this understanding of the law, I think the court did not err in refusing the charge as asked by the plaintiffs counsel. ‘

The next error assigned, is, the instruction given as above stated — “ that under the evidence, the whole account of the defendants, so far as proved, was a good set off against the plaintiffs’ demand.” I do not distinctly perceive, upon what principle of law, or upon what view of the case, this instruction was given. If it were intended to declare, that the account set up, though it were believed by the jury to be an individual debt, due from Pierce, for which the firm was not responsible, yet it would be a good set off, so far as proved, in this action brought by the firm ; it seems to me that it can not be sustained: and my reason for thinking so, is fully illustrated by the verdict and judgment in this case ; by which, if it be the sole debt of Pierce, it. has been unjustly paid off, at least to the extent of Baldwin’s interest in the account sued for by him. It is in effect, allowing an individual, debt of a partner, to be paid out of the property of the firm ; and ought no more to be allowed, by the process of set off, than if the defendants in this case had brought suit on the account of Pierce, admitting it to be purely his own, against the firm of Pierce & Baldwin, which it must be admitted by all, could not be sustained. So if it were intended by the charge to declare that this account was so palpably within the scope of the partnership business', as that without further proof, except of the items, it constituted a claim upon the firm, I think it equally erroneous. If the view taken, was, that the account being raised under the agreement, &c. as stated by the witness, to be paid for in goods from the store of the plaintiffs ; the charge was erroneous, because it assumed facts, which the jury alone were competent to determine. The charge should have been, that if the jury believed from all the evidence in the case, that Baldwin either by implication, or expressly agreed to, or authorised the appropriation of the firm effects to the satisfaction of the tavern account of Pierce, that then the set off was good against the plaintiff. This view of the law of the case, which will regulate any future trial of it, supersedes, as I apprehend, the necessity of adverting to the other assignment of error, questioning the propriety of the rejection of the proof offer edby the plaintiff» of the insolvency of the firm, and the transfer of its effects. The doctrine that the firm property must be first applied to the satisfaction of the firm debts, with a view to which, I suppose the testimony was offered, can have no application. If the account set up by the defendants was, when it was created, and before any assignment of the firm effects, a good set off against the firm, its insolvency, and the transfer of the account sued on, could not defeat it; and if it was not a good set off against the account of the firm, it could not under any circumstances be used as such. If the account attempted here to be set off was sued against Pierce individually, and upon judgment against him, execution were levied upon the property of the firm, then in accordance with the principle above stated, the assignee might well interfere on behalf of the creditors of .the firm.

The judgment is reversed, and the cause remanded. • •

Mr. Justice Saffold dissented.

       1 Stew. 526.