author: Hitchcock, J.

text:
    PRESNALL versus MABRY
    QUESTIONS IN THIS CASE

      As to the answer of a garnishee.

      As to the issuance of a summons in garnishment against an administrator, within six months after the grant of letters.

      1. No judgment can be rendered against a garnishee on his answer, where there is not a clear admission of a legal debt, due,- or becoming due, to the defendant in the original suit.
    2. An administrator, within six months after the grant of letters, cannot be summoned as a garnishee, and judgment rendered against him, thereon.
    At the September term, 1819, of the then Superi- or Court of Clarke county, Jesse Mabry, upon a writ and declaration, formal and sufficient, obtained a judgment against William Latham, in the words and figures following:— “ Judgment by default claimed by T. Murray, Esq. — granted.”
    Lpon this supposed judgment, executions issued at various times, to wit: — One in October, 1819, and one on the L9th January, 1832, both returned, no property found. On the 17th January, 1832, one William Robinson made oath, that on, &c., judgment, &c., was rendered against Latham, in favor of Mabry, for one hundred and two dollars and sixty-four and three-fourth cents; that Latham had no property, &c and that Elijah Presnail had, &c. — ■ Upon this affidavit summons issued .from Clarke Circuit Court, against Presnail, requiring him to appear, &,c. answer, &c. At the April term, 1832, of; Clarke Circuit Court, Presnall there plead, that Mabry ought not to have and maintain his summons, &c. because there was no judgment as stated in the affidavit, &o.; which plea was not disposed of. Pres-nall, at the same time moved to quash the proceedings, because there was no judgment; which was overruled. Latham, the defendant in execution, at the same time moved to quash the proceedings, for the same cause; which motion was also overruled. A motion was then made to quash the execution, which had issued, because there was no judgment; which motion was granted. Presnall then filed his answer, in which he stated that in August, 1831, one Harvey Presnall, brother of the garnishee, died, leaving no wife or issue, but a considerable estate, both real and personal; that the heirs of said Harvey Presnall were his brothers and sisters, to wit: Absalom Presnall, James Presnall, Elijah Presnall, and Clara Latham, wife of William Latham, defendant in the original suit. That, in September, 1831, the garnishee, Elijah Presnall, was appointed administrator upon the estate of Harvey Presnall, and took possession of the goods and chattels, amounting in all, to about sixteen hundred dollars ; all of which was in his hands when summoned, &c.: he then stated, that before he was summoned he was informed by one John Latham, that he, said John Latham, had purchased of said William La-tham, all his interest in and to said estate; and the. said John showed him the transfer and conveyance, from William to John, which said transfer and conveyance was on record, in the County Court of - Clarke county, &c. At the same time judgment nunc pro tunc, was entered in the origina] case of Mabry vs. Latham. At March term, 1833, after a recital, that Presnall had, by answer, admitted that he had, in his hands, money of William Latham, to the amount of four hundred dollars — judgment was rendered against him for two hundred and twelve dollars and eighty-five cents.
    And here the plaintiff assigned for error—
    1. That the Court erred in not disposing of his plea before further proceedings.
    2. In not sustaining his motion to quash the proceeding.
    3. In not sustaining'Latham’s motion to quash.
    4. In giving judgment against the garnishee upon his answer, when the answer shews—
    First — That the plaintiff,, if he had any effects, had them as administrator of H. Presnall.
    Second — That sis months had not elapsed after obtaining letters of administration, until he was summoned, &c.
    Third — That the plaintiff, Presnall, had been notified that Wm. Latham had assigned his interest in the estate to John Latham.
    Fourth — That William Latham’s interest in the estate, if any, was a joint interest, with his wife Clara, and if he died before his interest vested, it would ' remain absolutely in the wife, not subject to his debts, &c.
    Fifth — In giving judgment for a certain sum, when the answer shews that the garnishee had goods and chattels undivided, and which he could not sell or divide without an order of a Court, independent of the Circuit Court.

      On the first, second and third assignments, it was contended, that a judgment was necessary before any proceedings in the nature of those instituted, could be sustained; and that a garnishee could not be compelled to answer until a judgment were exhibited. — . The statute authorising such proceeding, requiring it.

      Vide Stebbins vs. Fitch, 1 Stewart 180; where is expressly stated, that, if there had really been no judgment, it might well have been assigned in emir.
    The judgment, nunc fro tunc, cannot have such relation back as to cure proceedings predicated upon the informal judgment; besides, it seemed to have been entered subsequent to the plea being- filed, and motions made to quash.
    On the fourth assignment it was contended, that an administrator, as such, cannot be garnisheed; and if he can, under any circumstances,, it could only be after six months, and perhaps eighteen months from the time of grrnting letters; otherwise he may be compelled to pay before he can ascertain the condition of the estate. But if he is compelled to pay the share of one of the heirs in this way, where does he get his refunding bond, &c. For the third, fourth and, fifth reasons, under the fourth assignment, see Allen vs. Morgan, X Stewart 9 — King vs. Murphy, do. 228—Lawrence, Rapalye & Co. vs. Robinson, 2 Stewart 86.
    Argued by Mr, Goldthwaite, and Porter for the plaintiff in'error.
   Hitchcock, J.

The defendant in this court, who was plaintiff below, recovered judgment in the Superior Court of Clarke County, at the September Term, 1819, of said Court, against one William La-tham. The entry of judgment was in the following words: “ Judgment by default, claimed by T. Murray, Esq.: granted;” upon which various executions issued, all of which were returned, unsatisfied.

On the 17th January, 1832, one William Robinson made oath, in the usual form, applying for a summons against the present plaintiff in error, as a garnishee of Latham.

At the April Term, 1832, of the Court, various motions were made — such as to quash the executions which had issued; to quash the proceedings of garnishment; for judgment, nunc pro tunc, on the original judgment — which it is unnecessary to notice, in the view which the Court has taken of the case.

At the same term of the- Court, E. Presnall, the garnishee, answered, that, “in August, 1831, one Harvy Presnall, the brother of the garnishee, died, leaving no wife or issue, having considerable estate, real and personal; that the heirs of said Harvy Pres-nall were his brothers and sisters, to wit: Absalom, James and Elijah Presnall, and Clara Latham, a sister, and, who is the wife of the defendant in the original suit. — That, in September, 1831, Elijah, the garnishee, was appointed adrninistator of the éstate of his brother, and took possession of his goods, amounting, in all, to about sixteen hundred dollars, all of which were in his hands, when he was summoned.

He further states, that before notice of the summons of garnishment, he had been informed, by one John Latham, that he had purchased, of the said William Latham, all his interest in the estate of Harvey Presnail, in right of his, (William Latham’s,) wife; and that he had been shewn a transfer and conveyance from William Latham, to John Latham, which, he states, is on record in the County Court of Clarke County.

Upon this answer, after the Court had allowed an entry of judgment nunc pro tunc, in the original suit, against William Latham, the Court gave judgment in favor of Mabry, against Elijah Presnall, the garnish ee, for two hundred and twelve dollars and eighty-five cents.

Without deciding any question as to the legal effect of the entry of the judgment nunc pro tunc, in ¿id of this garnishment, and, also, without deciding whether an administrator can be garnisheed, in any case, on the ground of his having effects which he may be ultimately liable to the heirs, for — we think there is manifest error, when the case is viewed in reference to the answer alone.

It is a clear principle of law, that a judgment cannot be rendered, on the answer of a garnishee, against him, unless there is a distinct admission of a legal debt, either due, or to become due, by him, to • the defendant in the original suit.

In this case, in the first place, the summons issued within six months after the grant of letters of administration, within which period no suit can be brought against an administrator. In the second place, no subsisting legal debt is admitted. The effects in his hands were yet to be administered — the debts were to be paid, and the amount, if any, due the heirs, yet to be ascertained.

If the alleged transfer to John Latham was valid, no interest ever could accrue to William Latham.— If he should die before receiving his wife’s share of the estate, it would go to her, and would not be subject to his debts; and, if she should die before he should receive the amount, then the estate would go to her heirs.

The judgment must, therefore, be reversed.


source: Caselaw Access Project

author: Saffold, C. J.

license: Public Domain

text:
    ALDAY and EVANS versus JAMISON.
    QUESTIONS IN THIS CASE.

      As to the right of action upon a promissory note, by the bearer.

      .As to averments of diligence, as against the maker.

    J. The holder of a promissory note, into whose hands it goes by delivery, after several indorsements, cannot maintain an action thereon, in his own name, against the first indorser, the payee, on the evidence of the paper alone; though such action be commenced in a Justices court.
    S. The words, “ used the legal means to try to collect out of ■ the maker,” of a note, is not a sufficient averment of the necessary diligence to bind an indorser.
    The action was originally commenced before a justice of the peace, on a note drawn in favor of Al-day or bearer, and by him endorsed to one Burnett, and subsequently endorsed by Wells and Stokes. — ■ Jamison having become possessed of the note, as bearer, brought his action to recover the .amount thereof from Alday, as the original endorser. The note was due and payable on the first November, 1828; and Jamison instituted his suit on the thirteenth of April, 1830. The magistrate rendered judgment against the defendant Alday; and the case was subsequently taken into the County Court of Wilcox, by certiorari, where judgment, as on demurrer, was had for the plaintiff, Jamison.
    The cause was argued by Porter, for the plaintiffs in error, and by Mr. Aikin, for the defendant.

      On the part of the plaintiff in error,- it was contended—
    First — That there was no sufficient declaration filed in the cause, on which judgment could be rendered.
    Second — That the plaintiff below, was not entitled to his action, there being no privity of contract between him and the payee of the note:- and the latter not liable to Jamison, as an indorser. Aikin’s Digest 330, §15.
   Saffold, C. J.

The main question presented by this case is, whether the holder of a promissory note, to whom the same has been transferred by delivery, merely, from the indorsee, can, on the evidence of the note and indorsement alone, sustain an action against the indorser? Such is the case presented by this record. The declaration, or concise statement of the ground of action, as in oases of appeal from the judgment of a justice of the peace, discloses these facts.

It is deemed sufficient to say, that, in legal contemplation, there is no privity between these partiesi on the evidence of the paper alone, no cause of action, against the indorser, in the name of the holder, by verbal assignment. Could he recover, against the indorser, it could only be by instituting the suit in the name of the indorsee, for his use. The circumstance of the suit having originated before a justice, does not vary the principle, that it must be in the name of the proper parties.

It is true, as contended in argument, that the declaration is defective in other respects; in not stating the facts constituting the diligence used, to make the money out of the payor of the note, instead of the averment that the plaintiff had “used the legal means to try to collect out of the maker.” This is an inference or conclusion of law, which the party was not authorised to make; it was a matter necessary to be submitted to the Court, on an averment, of the facts relied upon to establish the requisite diligence.

On either, or both these points, the judgment must be reversed ;■ and as the former appears fatal to the action, it is supposed unnecessary to remand.


author: Hopkins, J.

text:
    LECATT versus SALLEE.
    THE QUESTION IN THIS CAUSE.

      In respect to the right of an attorney or counsellor, to make new contracts with the client, for compensation, after retainer.

    1. An agreement made by a client, with his counsel, after the latter has been employed in a particular business, by which the original contract is varied, and greater compensation is secured to the counsel, than may have been agreed upon, when first retained; is invalid, and cannot be enforced.
    This was a bill in Chancery, filed in the Mobile Circuit Court, by Littleton Lecatt; the object of which was to enjoin a judgment obtained against him, by the defendant in error.
    The bill stated, that on or about the seventeenth day of January, eighteen hundred and twenty-five, the complainant engaged the defendant to prosecute his claim to certain estates, to which he was entitled, by courtesy, in the city of Mobile. That, in consideration of the services to be performed, in and about the management of the suits incident to this engagement, he executed his promissory note to the defendant, for the sum of eight thousand dollars; which was accompanied by a writing, signed by Sallee, and delivered to the complainant, whereby the conditions tipon which said note was given, were expressed; and, by which it appeared, that, in the event of an entire failure to recover, the note was to be cancelled: or paid in proportion to the recovery of part of the lots. That, afterwards the defendant instituted suits for the recovery of the complainant’s claims, in part of which he was successful, and in others, not — a portion of the'suits remaining undetermined.
    It was farther shewn, that subsequently to this, the defendant instituted an action upon the note, and thereon obtained judgment, for the full amount of eight thousand dollars — under which, execution was then harrassing the complainant.
    The complainant charged, that, at the time of obtaining said judgment, it was expressly agreed, between the parties, that the same should abide the conditions before entered into: and, that, in part liquidation of the note, he had paid the sum of six thousand seventy-five dollars; which was a much larger amount than, under the agreement, the defendant was entitled to; or, proportioned to the services rendered. The bill prayed an account and relief, &c., .and, upon it, an injunction was granted.
    The answer of the defendant admitted the contract, as charged ; but, directly averred, that the conditional agreement had been cancelled, under the following circumstances; that, ascertaining that the complainant had compromised one of the suits, then being prosecuted by the.defendant; and, had lost the proceeds of that compromise by gambling — informed him, that he would decline the prosecution of his, (complainant’s,) suits, unless the latter would confess a judgment on the note; and convey a lot of land to the respondent, in part payment thereof: all which was done accordingly: that, said judgment was obtained, under an agreement, that an execution was to be levied, at any time that the defendant thought proper so to do.

      To so much of the bill as alleged, that it was understood, that the judgment was to be subject to the conditions under which the note was given, there was a direct charge of its untruth. The answer contained further averments and explanations; but not material to the history of the cause, further than recited.
    A decree, in the cause, was subsequently rendered, by the Chancellor below, in favor of the defendant, for three thousand and sixty-three dollars and seventy-five cents; and the complainant’s bill dismissed.
    Lecatt prosecuted his writ of error, to this court.
    The case was argued by Mr. Goldlhwaite, for the plaintiff in error; and, by Mr. Sallee, for the defendant.
   Hopkins, J.

The plaintiff in error filed the bill in this case, on the Chancery side of the Circuit Court of Mobile county, for an injunction and relief against a judgment at law, in favor of the defendant, and states, that in 1825, he employed the defendant, who was an attorney and counsellor at law, to institute and prosecute suits for several lots of land in the city of Mobile, to which the defendant had a claim. That, in consideration of the services to be rendered, by the defendant, the complainant gave him his note for eight thousand dollars, subject to conditions expressed in an agreement, signed by the defendant, and which was appended to the note; and that one of the conditions was, that if there should be no lot recovered, the note should be given up and cancelled. A copy of the agreement forms a part of the bill, and shows that the note was to bear no interest during the pendency of the suits. The other material allegations are, that sometime after the note and agreement were made, a judgment was rendered against the complainant, in favor of the defendant, for the full amount of the note, upon an agreement between them, that the judgment should be subject to the same -conditions to which the note was.. That some of the suits had terminated in the success of the complainant, and others were undetermined. — • That he had paid paid a larger sum upon the judgment than the value of the lots recovered, entitled the defendant to receive; but that he claimed the full amount of it, and had caused an execution to issue, to collect it.

The defendant admits the note was made upon the consideration, and that he executed the agreement stated in the bill, but he denies that the judgment was taken subject the conditions to which the note was. He alleges that the improvident sale, by the complainant, of a part of the property, and his waste of the proceeds induced him to inform the complainant that he would decline prosecuting the suits, unless the complainant would confess a judgment for the amount of the note, upon which an execution to obtain satisfaction might issue, whenever the defendant chose; and, also, convey to him one of the lots as security for the judgment, until the complainant could put him into possession, when the conveyance should become absolute, and operate as a payment on the judgment, to the amount of the appraised value of the lot.

To this new agreement, proposed by an attorney to his client, it is alleged in the answer, the latter assented, and that the judgment was taken, subject to it, in February, lb26.

It does not appear that any of the suits had been determined, when an agreement was made that a judgment might be rendered upon the note. From the time of the commencement of the relation between the parties, the inference is, that none had been decided.

It is unnecessary to determine whether the judgment were taken on the agreement alleged in the bill, or upon that set up in the answer. If it were rendered upon either, the same question arises, which. is presented also by the facts charged and admitted. That the note was given, subject to the conditions contained in the agreement, both parties affirm —■ That an unconditional judgment was taken, for the full amount of the noto, twelve or thirteen months after the execution of it, and the employment of the defendant, as attorney, he admits. Both affirm it was rendered upon an agreement, but each differs from the other, in his statement of what the agreement was. That the defendant claims a right to the full amount of the judgment, the complainant alleges, and he admits.

Upon these facts, the question arises, can an attorney, during the connection between his client and himself, make, with his client, a binding contract to secure to himself greater compensation for his services than was agreed upon, when their relation commenced?

The question has never before been presented to this Court, but it has been often determined in England. There, it is a settled doctrine of equity, that an attorney cannot, while the business is unfinished, in which he had been employed, receive any gift from his client, or bind his client in any mode, to make him greater compensation for his services than he would have a right to demand, if no contract should be made during the relation. If an attorney accept a gift from one thus connected with him, it may be recovered, in a Court of Chancery, by the donor or his creditors, should it be necessary for them to assert a right to it to satisfy their demands.

If a bond, or any other security for a greater compensation, be taken from a client, by his attorney, during their connection, it will, upon an application to a court of equity, be either set aside or allowed to stand only as security for the sum to which the attorney would have been entitled if no such security had been given. In some of the cases the prohibi-bition comprehends all dealings between attornies and their,, clients; in others,- it is confined to the particular business which was the inducement to form the relation, and an attorney is allowed to enter into contracts with his client upon any matter which is not the object of his concern as attorney. The principle thus limited, we deem the most reasonable.

In the case of Newman vs. Payne, Newman, the complainant, after his relation as client had commenced with Payne, his attorney, promised to give Payne one thousand pounds when he,should be able, upon coming into the possession of an estate, .to which he would succeed, upon the death of his uncle, without issue, and gave a memorandum, stating the promise and condition, to induce his executor in the event of his death, to fulfil it. Afterwards, he made his bond to pay the thousand pounds at the death of his uncle, absolutely, and subsequently he ■ created a term of sixty years upon Ms reversionary interest in an estate as security for the bond. The Chancellor who heard the case, said, that such bonds were commonly put among cases which hold, “that upon general considerations of policy, the Court, without entering into the means used, or the character of the parlies; but merely upon the relation of attorney and client, will not suffer them to stand.”—

By his decree, the bond and deed which created the term were set aside.

In Walmesly vs. Booth, a bond obtained by an attorney from his client, during their relation¡ was'set aside* upon the same ground. Lord Hardrvicke, who made the decree, remarked, “I am of opinion that the court ought to pay no regard to such a bond, as it might be attended with bad consequences, by encouraging attornies, after they have got into the secrets of their clients, to extort from them unreasonable rewards to themselves.” He said, also, that the reason the Court goes upon, in such determination, is the great power aud influence that an attorney has over his client.

In the case of Oldham vs. Hand, the Court that Booth the defendant in the case referred to' in 2 Atkyns, refused, after he was employed, to endeavor to obtain bail for his client, until the bond should be given; but the report of the case contains no such fact.

In the case of Montesquie vs. Sands, the Court recognised the principle to be, “ that an attorney shall not take from his client a gift, or reward, while standing in that relation, the connection between them subsisting with the influence attending it, though the transaction may be as righteous as ever was carried on; that the connection must, as in the instance of guardian and ward, be Iona fide dissolved before he can take any thing beyond his regular fees.” (See also 18 Vesey, 119, 126, and the cases there cited.)

The Counsel for the defendant attempted to maintain the position, that such contracts, between an attorney and his client, in this State, were not within this principle, because attornies here do not form a class in the profession of law separate from that of counsellors, as they do in England, and the laws of the State do not prescribe the fees for services performed by attornies, or authorise the appointment of officers to tax their hills of costs.

It is true there is a difference in these respects, between attornies in that country and in this State. — < There, they and solicitors have a right to be paid such reasonable fees as have been long settled in the profession, and allowed in the different Courts and in common law and Chancery business; there are officers of each of the Courts, whose duty it is to tax their bills of costs. In England, a counsel has no right to an action for his fees, for they are given to him, not as hire, but as a gratuity. If he had a right to demand fees, his contracts for them, entered into after his relation with a client had commenced, would be, doubtless, within the principle which governs such contracts with an attorney.

In this State, attornies and solicitors, when they undertake to do business, may make the measure of their compensation a part of the contract, by which they agree to perform the services needed; and, such a contract would be as binding upon the client, as-any one into which he could enter.

If the amount of compensation be not fixed, by the terms of the contract, by which an attorney or solicitor was employed, he would be entitled to be paid such reasonable fees, as have been usually paid to others, for similar services. Counsellors and attornies are not separate classes, here : each attorney is a counsellor — every counsel, an attorney; and, for all services performed by one, in whom the two characters are united, an action for fees, may be maintained.

In this case, the fee for the services, was settled by the contract between the parties: the same contract, by which the attorney undertook to bring the suits for the complainant. The complainant knew, with certainty, what he would be bound to pay, in case of success in all his suits, or in- any other event.

A client does not know the amount of the bill of costs he will be required to pay his attorney, for a suit in an English Court. He knows the fee for each service, is settled; but, he cannot know how many affidavits may be made, and other things done, which may, or may not be necessary, in the progress of the cause, to which he is a party.

As the contract which produced the relation between the parties in this case, ascertained the fee of the defendant, it was as irrevocably settled, as though a rule of law, which tolerated no contract upon the matter, had fixed it.

By the agreement, subject to which the note was given to the defendant, he was not to be entitled to any fee, should no lot be recovered. But, the judgment, in the same event, gave him a right to collect eight thousand dollars, the whole amount of the note. Upon the first contract, he was not, in any event, entitled to interest upon the note, during the pendency of the suits. But, the judgment bears interest from its date. All the rights derived from the judgment would be exercised, if it were beyond the control of a Court of Equity.

The firmest ground for the support of the principle to which the complainant has resorted, for relief, consists of the confidence reposed by a client, in his attorney, and the influence which an attorney has, over his client. Confidence is as necessarily reposed, here, by a client, in his attorney, as it is in England. The influence of an attorney, during the connection, is as great here, as it is there; and, no consequence, against which it is the object of justice to guard, could attend such contracts, there, which would not follow them, in this country. Integrity of character and purity of motive, have never enabled such contracts to stand in full force, against the principle of equity, which commonly excludes all inquiry into the fairness of the transactions, and sets them aside, as violations of the policy of justice. No principle has been more rigidly adhered to, by the English Chancellors; and we shall not take the liberty to depart from it.

The principle, will best preserve the high reputation of the profession, by elevating its members above the temptation to exercise their influence, to obtain advantageous bargains of their clients; and, consequently, above the suspicion of having done so.

Upon the same reasons, trustees are not allowed to fix the the amount of their compensation, by contracts, entered into, after they have accepted their trusts.

After the relation has ceased, attornies have a right to take what may be given to them, or paid, as compensation. Their employment, in one suit, does deprive them, while it is pending, of their right to make a contract, for compensation for their services, in another, or for any other professional business, with the same client.

The bill charges, that some of the suits were undetermined, when it was filed. As this fact was in the knowledge of the defendant, and not denied, it must be considered as admitted.

The acts of the complainant, relied upon in the answer, to confirm the judgment, were all done during the relation of the parties, and are within the principle which has been applied to the judgment.Wood vs. Downs.

In some cases, bonds, given to attornies, by their clients, have been suffered to stand as security for the sum which they were entitled to received. This course, may be pursued, when it does not appear, that it will result in injury to the clients.

It is probable, all the suits which the defendant agreed to bring for the complainant, have been determined, and, that he is now entitled to as much of the note as- he could ever demand. The judgment will therefore, be allowed to stand as security for the balance, if any, that may be due on the note— which must be ascertained, in reference to the condition in the agreement, which was appended to it.

The decree is reversed, and the case must be remanded to the Circuit Court of Mobile County; in which Court such proceedings must be had, as will ¿?arry into effect, the principles of this opinion.

       2Ves.200

       3 Atk. 293

       2 Vessen, 259

       18Ves. 312

       1 John.Ch 529

       2 Ves. S

       1 Porters Rep. 375-3 Bibb. 466, 539

         18 Ves. 119, 129

       18 Ves. 126, 129 126’129


text:
    OGBURN versus OGBURN.
    QUESTIONS IN THIS CASE.

      As to charges of Courts, upon abstract questions.

      As to a defence by a vendee of personal property, while retaining possession.

    1. Where an inferior Court, after rejecting testimony offered in a cause, charged as though such testimony had been admitted, it was held that, such charge was abstract, and not the subject of inquiry in error.
    2. The vendee of a slave cannot, while holding the possession thereof, defend against an action for the purchase money, by proof of want of title in the vendor.
    In error from Montgomery Circuit Court.
    This action was assumpsit, upon a promissory note, instituted by the defendant in error, to whom the note was made payable. The defence relied on to resist a recovery, was, that the note had been executed in consideration of the purchase of a slave, the title to which was not in the vendor. A trial was had, under the pleas of want of consideration, failure of consideration, and fraud in obtaining the note; and a verdict awarded in favor of the plaintiff to the action.
    After the introduction of the note, to the jury, the defendant produced the subscribing witness thereto, who proved that the note had been given in payment for a slave, who passed into the possession of the vendee, and had there remained until the time of the action. As further testimony in defence, the defendant offered to read to the jury, a deed of gift, from Hines, the grandfather of the plaintiff’s children, to them, of the slave in question, the validity of which deed, and the execution and recording of which, in a regular manner, were not contested. The defendant also offered to show, that he had been notified to hold the said slave in trust for the children, to whom she had' been conveyed.
    The Court ruled that the whole of this testimony was illegal, and could not avail the defendant, unless he had returned, or offered to return the slave to the vendor.
    The defendant then proposed proving that Ogburn, the vendor, was insolvent, and had assigned the note to others, for whose use he now sued; and so could not return the note to the defendant: also, that he held the slave in trust, as aforesaid. All which evidence the Court rejected, and charged the jury, that if the vendee had the possession of the slave, and had not offered to return her to the vendor,"the plaintiff was entitled to his verdict; there being no evidence of suit having been instituted, or recovery had, against said defendant. To all which matters, the defendant prayed his bill of exceptions, which was signed and sealed accordingly.
    Argued by Mr. Dargan and Messrs. Ellis & Peck, for the plaintiff in error, and by Mr. Goldthvaite, for the defendant.
   Hopkins, J.

The note, upon which the action in this case was founded, was given, for the purchase money of a slave, sold and delivered, by John Og-burn, to Nicholas Ogburn, on the day the note was made." The purchaser has been in possession of the slave, ever since the sale.

Upon the trial of the cause, the plaintiff in error, who was the defendant in the Circuit Court, offered to prove,-in the defence, that the title to the slave was in the children of his vendor, the plaintiff in the action; that he had received notice, to hold the slave, for the benefit of the children ; and, that he did hold the possession of the same, in trust for them. He also offered to prove, that the vendor was insolvent.

The evidence offered, the court refused to admit. Instructions were given by the Court to the jury, as though ihe testimony, which was excluded, had been admitted.

As the instructions were upon an abstract question, and not on one, which arose from facts in the case; this Court has no power to enquire of the cor- ' rectness of. them. . The question here, is, do the facts, which the plaintiff in error offered to prove, constitute a defence to the action?

If they do not, the judgment must stand, because the admission of them, in proof, could not have prevented the judgment; and against such evidence, the defendant in error would be entitled, upon another trial, to a judgment, for the amount due on the note.

The warranty in this case, was an implied one; but the effect of an express, and of an implied warranty, of title, upon a sale of personal property, is the same, and no reason is perceived, why a vendee of a chattel, who continues in the possession of it, should have a cause of action upon his warranty, for a want of title in his veudot — when a grantee of real esiate, in the same circumstances would have no right to maintain a suit, upon a warranty of title.— No principle is more firmly settled,' than that which allows no action upon a covenant of warranty of the title to land, until after the eviction of the grantee, by a paramount legal title. (2 Wheaton 62, note C and the cases there cited.)

A possession which begins in wrong, may continue long enough to exclude all adverse claims. By possession only, he who has it may acquire a title. This effect of possession is produced by the lapse of a much shorter time, upon personal property than on real estate. It is more important, therefore, to - a vendor of a chattel, that his vendee should not voluntarily give the possession of it to an adverse claimant, or hold it for his benefit, than it is to the grant- or of real estate. But, upon authority, there seems to be one difference between such a grantee of real estate and vendee of personal property ; the latter, for want of title in the seller, has a right to an action as soon as he has offered to return the chattel, the former must wait for his eviction.

’ To maintain an action, the plaintiff in it must have done, before the commencement of it, every thing required to give the right to it. The effect of the maintainance of an action to recover back the purchase money, is to rescind the contract; to restore to each party what was his own, before the sale was made. In such an action a judgment may be ren'5 dered for the plaintiff that he recover back the purchase money, but none can be given for the seller that the possession be restored to him. To allow an action for this purpose, before an offer to return the property had been made, would deprive the law of its power to do what it professes to do by its judgment — to rescind the sale. The seller would be without the possession, which was once .his, and would have received nothing in exchange for it; while the purchaser, in whose action the sale, from which he obtained the possession, was rescinded, would be left in possession, and with a prospect of gaining to himself a title by possession only. To prevent such injustice, the rule that requires a return of the property, oran offer to do so, which has the same effect upon the remedy, has been established. By its operation a vendor may certainly get back what he sold, before he can be deprived by the judgment of the law, of the consideration which he received for it.— This rule is applicable to an action for a breach of a warranty of title to a chattel, to recover back the purchase money.

If an action could be maintained without an offer to return the property, palpable injustice would be the consequence to the vendor. A jury could make him no compensation for the loss of possession, for no accurate calculation of the chances that it would be continued long enough to mature into a title, could be made, and consequently no estimate of the value of the possession, sufficiently probable to authorise the deduction of it from the purchaser’s demand. The offer to return must be made in a reasonable time after the discovery of the want of title.

As a vendee of a chattel, who has paid the purchase money; cannot maintain an action to recover it back, for the want.of title in his vendor, while he has, and is in, the undisturbed possession of the chattel, how can one in the same circumstances prevent a recovery of the purchase money. To sustain the defence would be a rescission of the sale. We think no defence can be made to an action for the purchase money, when the facts relied upon to make it, would not, if the parties were changed, and the money had been paid, enable the vendee to recover it back for the breach of the warranty of title. If the principle were different, a possession of a vendor, which was founded, before he transferred it, upon lapse of time, almost sufficient to protect it against all claim, might become worthless if the purchaser chose to give it up to an. adverse claimant, who was the real owner; and he would have a right to do so, if he have the right claimed for the vendee in this case, to refuse to pay the purchase money, while he holds the possession of the chattel, in trust for the real owner.

The objection to the principle, which we recognize, that the purchaser would be liable to the right owner, after he had returned the property, could be made with as great plausibility to the maintenance of an action by a bailor, or landlord against, the bailee or tenant, who can make no defence, upon the ground that the title to the property is in a third son.

The judgment is affirmed.

       7 John R. 324; 2 Cain 216; 19 John 77.