author: By Mr. Justice Thornton :

text:
    TROTTER versus CROCKETT.
    It is competent for a defendant to show by testimony, that an instrument assigned as a conditional payment or collateral security of a pre-existing debt ¡ was good and available in the hands of the plaintiff, at the time of assignment and afterwards.
    A judicial insolvency can only be established by an exhaustion of all the means supplied by law against the purse of a debtor: and the insolvency of a party will not be presumed on the bare return of nulla Iona, to a jieii facias issued against his effects.
    The holder of an instrument, (transferred as conditional payment or collateral security) is not bound first to sue thereon, — or to offer to, or return the same; in order to maintain an action on the original debt or consideration, intended to be secured by such instrument.
    Where paper securities have been transferred as an absolute payment of a prC1 existing debt, then no resort can be had on such debt, or its original consideration — and the party receiving the same must take his recourse on the paper so transferred — (unless indeed they be forged, or fraud be committed in'the representation of their value.)
    But if the transfer of paper be intended merely as a conditional payment, or as a collateral security, the successful pursuit of the original debt, will depend on the fact, whether or not ladies has been committed by the holder, whereby any liability on it has been lost to the party transferring it.
    This action was trespass on the case, instituted by the defendant in error, in the Circuit Court of Lawrence.
    The plaintiff declared, (with other counts,) on an undertaking in writing, executed by the mercantile firm of Trotter & McGonegal, (of which Trotter was survivor,) whereby, the latter, in consideration of goods, wares and merchandize before that time sold and delivered, agreed to pay the plaintiff a certain amount of money, in cash notes, on solvent men in Lawrence county.

    The declaration averred, that the notes (which it appeared had been transferred, in pursuance of the agreement,) were wholly valueless, and useless in the hands of the plaintiff, whereby an action had accrued, &c. During the trial, the defendant offered to prove, that certain of the notes transferred, were good, and had been lost through the negligence and laches of the plaintiff, which proof the Court rejected. The defendant asked the Court to instruct the jury, that if they believed from the evidence, that by proper diligence the amount of certain of the assigned notes could have been recovered from the payors — or that the same had not been returned, or offered to be returned, to the defendant; the action was not sustainable : which the Court refused, and charged the jury, that the transferree of a note was not bound to pursue the transferror, in order to return it.
    Judgment on the verdict of a jury, being rendered for the plaintiff, the defendant brought the case, by bill of exceptions, into this Court.
    Ormond, for Plaintiff.
    We maintain, that the reception of the contract of indorsement, imposed dn the receiver of any note, under the contract, to pay cash notes, the obligation to use due diligence, or at least an offer to return the note. The Court, therefore, erred in instructing the jury, that the plaintiff was not bound to pursue the endorser. One of these notes was endorsed by Green. Crockett received this note, among others, and gave up the agreement. He received it then in the same way that others receive such notes, that is to pursue the endorser with due diligence. If he did not pursue the endorser, he should at least return the note or notes, so endorsed. This he is certainly bound to do in all cases, unless the notes be clearly of no value. Green was unquestionably solvent. He was the endorser, and not the maker. I am not sure that this does not come up to the literal fulfilment of the contract. But at any rate, tlie party might receive such endorsement; and he did receive it. He brought suit upon the note; brought it wrong; suffered a non-suit; made no effort to return the note ; kept it ten or twelve years, till his remedy was lost; and now seeks to make us liable upon the original contract. Why was the note, for which Green was bound, not paid long since ? Merely because Crockett held the paper, and neither offered to return it, or .pressed the collection of the debt.
    The Court. also erred, as we contend, in rejecting the evidence offered by Trotter. The maker of one of the notes -was solvent at the time of the endorsement, and continued so for some time afterwards. The party did not agree to guarantee the continued sob vency of the makers or endorsers of the notes ; and the Court cannot extend the contract beyond the agreement of the parties. The return of nulla bona against Harris, was therefore, not conclusive; and it would not have been so, if the contract had even extended to the continued insolvency of the maker of the note. Such return could only be prima facie evidence ; and the Court should have permitted us to prove that we had.complied with our contract, and had transferred notes on solvent men to the obligee.
    Besides, I make the point, that the plaintiff should have proved that he used due diligence. He cannot stand on a better footing than an assignee under the Virginia statute, who is permitted to sue in. his own name. He must shew that he has used due diligence.
    The case, however, does not rest on want of proof. There is -proof that due diligence was not used; that suit was brought in an improper manner; and that anon-suit was suffered, which is a voluntary act. .

      P. Anderson, mitra.

    The case shews an obligation due, to be paid in cash notes on solvent men in Lawrence county. Among the notes delivered, was one on Perine, endorsed to Green, and by him to Trotter. The obligation, let it be observed, was to pay in notes. An endorsement is not a note. The maker of a notéis bound directly; the endorser, upon a contingency. If it be pretended that the endorsement was taken as a note, it must have been upon a new contract. Where is the contract 1 The counsel speaks of due diligence : upon what principle was diligence due? We were bound to receive notes; and we could not tell the solvency till tested by a suit. The endorsement of Green simply enabled the plaintiff to sue in his own name. We could not refuse the endorsement; but we did not receive it in payment: it was the note that we received in payment, on the implied condition, however, that Perine was solvent. Our commencing a suit against Green, was only so much more than we need have done. This was the act of one of the parties only, and no evidence of contract.
    But it is said that we ought to have returned the note. That depends on the question, whether we made any contract to that effect. The most that can be conceded on the subject is, that all the circumstances might have been left to a jury, to determine whether they amount to any evidence of contract, to receive the endorsement, or to return the paper.
    If one has the property of another tortiously in his hands, he is bouud to return it without demand; but if it be put into his hands by the other party, that party must demand the property before the receiver is bound to return it. If the note is worth nothing, it need not be returned. Well, Perine got a perpetual injunction against the note. It was then of no value. But, it is said, the endorsement was of some value. Perhaps it might have been; but according to the view which I take of the subject, this is unimportant. The Court did not err in refusing to usurp the province of the jury, and decide how far there was evidence of any contract, to pursue the endorsement, or to return the note. If we received the endorsement as collateral security, and not as payment; it is clear that we might have sued upon it — that we were not bound to return the note; and yet we would have been under no obligation to continue to follow up the claim against Green.
    The jury in this case, having found against Trotter, it must be presumed that they found that there was no contract to receive the endorsement as conditional payment, or to return the note.
    Besides, Trotter received this note from Green after it was due, as conditional payment of a merchandize account. Perine told Trotter that it was a gambling note, and that he would not pay it. Was it not bad faith then, to have passed it off ? The note being of no- value, Trotter could have sued on his merchandize account: the return of the note was therefore unimportant.
    That to have instructed the jury as required, would have been usurping the province of the jury, sufficiently appears from the decision of the case when it was here before. The Court is referred to the opinion then given.
    As to Harris, it is said that Trotter offered to prove that he -was solvent at the time of endorsement, and for some time after. It does not appear that exception was taken to the opinion of the Court on this point; nor does it appear that any particular testimony was given, or that any witness was introduced. A mere offer to prove was not sufficient. The express testimony that the Court rejected, should have been shewn. “ Solvency” requires a definition. It must be legal solvency; that is, the man must be in a condition that money can not be made out of him by execution. The want of this solvency, the return of nulla bona establishes. This is not merely prima facie. The insolvency of Harris béing thus established, wquld the Court permit a witness to come in and say, “I know this person has property in such a county,” and thus require the party to pursue the supposed property in that quarter ? He might in the same manner be driven from point to point, for an indefinite length of time. The introduction of evidence in such a case to contradict the sheriffs’s return, is not allowable,
    Hopkins, in reply
    cited Marr, ex’ix, vs. South-wide, Cannon & Warren, page 351 of this volume — ■ Minor’s Rep. 314 — 1 Stewart, 370.
   By Mr. Justice Thornton :

This was an action on the case, brought by the defendant in error, in the Circuit Court of Lawrence county; the declaration in which, contained various counts, and among them, one on a special assumpsit-in writing, whereby Trotter & McGonegal. a mercantile firm, of which Trotter is survivor, promised to pay to Crockett, the sum of three thousand five hundred and sixty five dollars and fourteen cents, in cash notes, on solvent men in Lawrence county, Alabama, on or before the 1st of January, 1822, for value received. During the progress of the trial, a bill of exceptions was taken, on which the assignment of errors is made in this Court, which relates to the rejection of testimony offered by Trotter'; to the refusal to give instructions which were prayed for by him; as also to the charge given. We think there is no good objection to allowing the first assignment to be made. The bill of exceptions shews, that the rejected testimony was offered; and excluded on the motion of Crockett’s counsel; and though the words lC to which opinions the defendant excepts,” are at the close of the bill of exceptions, we think they- embrace every matter of opinion contained in it. With regard to the language in which this matter is set forth in the bill, it is that usually adopted; and I think it necessarily implies, (the record not shewing the contrary) that the means of making the proof offered were present, and instantly available.

It appears that, when the note described, as above stated, in the count, became due; by endorsement in the name of the said firm, promissory notes were transferred to Crockett, to the amount of the said note; and that it was surrendered by him to the makers. Among the notes so transferred, were two of the following description: one made by James Perine to William Green, due 4th April, 1821, and assigned by him to plaintiff in error ; the other made by Joel D. Harris, due 15.th January, 1822.

The evidence offered by Trotter which was rejected, was, that the maker of this last note, Harris, was solvent, at the time of its endorsement to Crockett, and afterwards.

The assignment of error presents but two questions for our consideration. The first is, whether, according to the true intent and meaning of the writteii contract of Trotter, irrespective of any agreement at the time of endorsing these notes, the note of Harris did not, to the extent due upon it, constitute a payment and satisfaction of the original note or contract sued upon.

The second question is, whether if laches have been committed by Crockett with regard to the other note, whereby the liability of any party, who was on it, was lost to Trotter, he would not also be entitled to a credit to that extent. The first point above stated, is embraced by the assignment relating to the rejection of the proof, that Harris, the maker of one of the endorsed notes, was solvent at the time of the endorsement, and subsequent thereto. A just construction of the original contract or note, will determine the propriety of the rejection of this testimony. The contract was to pay in cash notes on solvent men, &c. The exclusion of the evidence was, I apprehend, on the ground, that by the contract, solvency at the date of the endorsement was immaterial. The Court did not decide, that no proof could be.adduced, to prove solvency, at the date of the' return of nulla bona to a fi.fa. which had been issued to the sheriff of Lawrence county, on the judgment in favor of Crockett on the, endorsed note. No such proof was offered with sufficient distinctness to be regarded; for the term “ afterwards,” though it may extend to any indefinite future period, yet on the principles of construction applicable to bills of exception, is not to be so understood-; and it may well consist with total insolvency at the date of the sheriff’s return, that after the endorsement, Harris was perfectly solvent. If, however, it was intended to be decided, by the Court, that the return of nulla bona in that judgment, was conclusive against Trotter, it was, to my mind clearly erroneous ; for at most, all that a return of nulla bona can be evidence of, is no visible effects within the county, of which tho sheriff making the return, is the ministerial officer; and is perfectly consistent with the possession of ample estate, just beyond its bound uy: which would be a sufficient defence, unless the words of tire contract, “ solvent men, in Law-, renco county,” mean not only that the men must be solvent, but that their property, and residence must both be, in that county: which I do not consider to be a fair interpretation of them. The Court, however, did decido, and the counsel for Crockett now insist, that solvent men, in the meaning of the contract, are such only as shall have effects to satisfy an execution, which shall issue upon a judgment in favor of Crockett, on the cosh notes to be paid. This would clearly imply an obligation on Crockett to bring a suit on the note. Eat the doctrine is well settled, that without, an express contrast, the holder of pa-pen as a conditional payment of, oras collateral security to, a pre-oxirting debt, is not bound to sue upon it at all; and if these notes were not transferred one or tho other of those ways, Ire cannot sustain his action at all on tire original consideration. It cannot bo adopted as a proper construction of the contract sued 0:1, that any suit was to be brought by Crocked on the notes to be transferred, before he could, re-coAror in an action for its broac! 1 in the particular of tho solvency of the makérsof those notes. Suppose that those note;-! were transferred without any knowledge by either party of the pecuniary condition of the makers, and that upon enquiry it _ were ascertained, that one or more of them, though never sued in their lives, were upon the parish as paupers at the time of tho transfer, would it be necessary to sue in such case in order to recover of Trotter for a breach of his contrast ? E apprehend that it would not. Now, if' oil the one hand, it can be alleged and proven, that the maker was insolvent, without any suit against him; as a necessary consequence his solvency can be established on the other hand, by the kind of proof here offered and refused. It is argued that the true construction of this contract is, that there is a warranty not only of present solvency, but a prospective warranty of continuing solvency, until by the due prosecution of the means afforded by the laws of the country, the fact of solvency, vel non, is in that manner ascertained. To sustain this construction, reference is-made to the decisions of the Courts of Yirginia, regulating the recovery by assignees against assignors, of such instruments as by the laws of that State are-authorised to be assigned.- It is true, that upon an indorsement in blank, or in the common form, the-Courts in that State have said, that a recovery may be had, as for a consideration which has happened to-fail, notwithstanding the use of the means of the law, as far as a fi. fa. returned nulla Iona, to render it available. But even there a special indorsement would vary the implied rule of liability, and if indorsed so as to raise the implication, that the liability wras to be more restricted, than the implied responsibility, the special understanding would control. But even if the word solvent, is construed to mean-ability to pay according to law, I would maintain that all the means which the law supplies, must be exhausted, before insolvency could be affirmed. Now, a fi. fa. is not the final test: in this State, at least, It is not the ultimatum which is afforded. The law gives a ca. sa. to reach the secret treasures of the debtor, as a fi. fa. does, his property, subject to levy. A judicial insolvency then, I think, is only established fully, by this final process of execution. For the er-y or in tlie Court below, in rejecting the testimony offered, the cause would have to he reversed, but as it must be remanded for a new trial, it is thought proper to consider the law, -which from the proof exhibited in the bill of exceptions, will be most probably applicable to the state of facts that will again' be established. The notes in this case, must, of necessity, have been endorsed over, either in .absolute discharge ■of the original contract, or as a conditional payment of it; or as a collateral security to it; and the question .as to the precise manner intended, is one, which-from all the circumstances of the case, must be determined by the jury, If the transfer were intended as an .absolute payment, then there can be no resort to the original note, nor to the original consideration, of that note. The note to pay in cash notes, &c. had extinguished the open account; and the transfer, if in payment, had extinguished that note; leaving the only recourse of the party so accepting them, on the transferred notes, unless indeed, they be forged, or a fraud has been practised ; as by falsely representing the parties to the said securities to be solvent, when they were not. If the transfer were intended as a conditional payment, or as a collateral security, then the successful pursuit of the debtor on the original consideration, which in such case, is the only subsisting ground of action, will depend on the fact, whether or not, any laches has been committed with regard to the transferred security, whereby any party whose liability could have been retained, or secured to the party transferring the note, or bill, is lost. If such laches has occurred, it will operate to that extent as an an absolute payment. And it would seem-by last decision of this Court, above cited, that in such case the insolvency of a party whose liability had been omitted, to be fixed, would not vary the case. For although insolvent, as far as legal coercion is concerned, yet a demand of the money might have resulted in its payment. I do not find the doctrine to be, that where a bill or note is transferred by endorsement, as conditional payment, or collateral security, and afterwards suit be brought on the original consideration, that successful resistance can be made to a recovery, by shewing that all the diligence has not been used, which would be necessary, to enable'the indorsee of such transferred bill or note to recover against the indorser as such, if it had been received in absolute discharge of the original debt. The extent of the doctrine, I apprehend is, that the recourse of the person from whom the bill or note is received against any prior party must not be lost, nor such delay occur in giving notice to the person from whom it was received, of the refusal to pay, as in the estimation of the jury would be unreasonable. As to the return of a bill or note, which may have been transferred as a conditional payment, or collateral security, I do. not consider that its return, or an offer to do so, is necessary, to authorise the institution of an action on the original demand.

A creditor may lawfully take and hold several securities for the same debt, and ought not to be compelled to yield up either, until the debt is paid. It is true that a double satisfaction cannot be had; but on principle, it seems to me, that all collateral securities, honestly acquired, are to be allowed to be retained until their object is accomplished.

It is laid down in 1st Cranch, 181, th'at it is not necessary to return a note received as a conditional payment, prior to the institution of a suit on the original contract; for the reason, that it is not an extinguishment of that contract. The utmost that justice would require is, that the plaintiff should shew that he has not derived benefit from it. If it has been transferred, no that in presumption of law, he has derived such benefit, by which means loo, the defendant might l)e subjected to its payment, then unless it be regained, so that he have it in his power to return it to the defendant, he should not be permitted to recover. In the case of a collateral security, I feel confident that the plaintiff ought not to be compelled to return it, until the debt is actually paid. But, in regard to paper, transferred as conditional payment, though not necessary to he returned before commencement of suit, it would seem perfectly correct, that it should be deliverer! up, or at least satisfactorily accounted for, before the rendition of judgment.

This doctrine of diligence, on the part of one who accepts negotiable paper, as collateral security, or conditional payment, is not peculiar to this class of cases. It is applicable alike, the diligence varying according' to the nature of the thing, whether paper security, or property of any other kind, be received in the samo way.

The necessary care and attention should be bestowed to preserve the value of whatever is thus voluntarily, and with a view to one’s own interest, taken under his control.

If the diligence which is necessary to preserve its value bo onerous or hazardous, its assumption may be declined altogether, or it may be regulated by express stipulation.

In the absence of any special contract, I think the purposes of justice can only be accomplished, and the decisions in former cases in this Court, and elsewhere, only reconcilable, by adopting the principles above laid down, as it respects the mutual rights and liabilities of parties standing in the relation of trans-ferors and transferees of. notes, or bills, by endorsement. or otherwise, as conditional.payment, or collateral security, of an original demand or duty.

Let the case be reversed and remanded,

       1Cranch isi.

       1 Wash. C. C. Rep 156-1st Porter's Rep. 1st ed. 260.

       2 Wheat. 390.


source: Caselaw Access Project

author: By Mr. Justice Hitchcock :

license: Public Domain

text:
    MAY and MAY, Executors, versus EASTIN.
    The refusal of a Chancellor to dismiss a bill, for want of security for costs, ia not a ground for reversing a decree in equity — excuses for a non-compliance with the letter of the statute, being necessarily, subject to the discretion of the Court.
    In determining between an absoluto sale anda mortgage, the Court, will take the intentions of the parties, from a view of all die circumstances: and where it is evident that aprima facie absolute sale, was intended as ii pledge, the Court will relieve against the sale, and suffer a redemption.
    Where A, having slaves levied on under execution in favor of tiro Tombeckbee Bank, and being about to discharge the same by payment of the notes of that Bank, was hindered from so doing by the representations of B, that it would not be a good payment, but who, on an agreement with A, paid off the execution in the same money, and took a purchase of one of the slaves, (with a condition of redemption in three mouths:) the Court,on a bill filed after the expiration of three months, held the transaction a mortgage, and decreed restitution, on the payment by A, of one half the nominal value of the Tom-beckbee Bank notes, paid by B, in discharge of the execution.
    The general rule, that a mortgagor, seeking to redeem, must pay costs, does not apply to a case, where the mortgagee sets up an absolute title in himself.
    This case came up by appeal from the Circuit Court of Greene, exercising Chancery jurisdiction. The bill was filed by Eastin, praying the redemption of a negro slave.
    The facts, so far as material to the case, were as follow:

      Eastin became indebted to the Tombeckbee Bank, and to secure the payment of the amount due, executed his deed of trust for several negro slaves, and other property to the said Bank; subsequently, under an arrangement with Buchannon, the testator of the defendants, the said property was purchased under a sale by the Bank, and delivered to the complainant, under a certain specified agreement, whereby the debt due by complainant to the Bank was to be discharged, and the property, then in the possession of Eastin, to become absolutely his. After Buchannon’s death, there being a balance due on the debt aforesaid, James May, one of the defendants, procured judgment thereon, and had execution issued on the same, in the name of the Bank. The execution being in the hands of the sheriff, a friend offered to loan the complainant the amount of his debt to the Bank, in Tombeckbee money, then fifty per cent, below par; which the sheriff, under May’s directions, refused to receive. May then selected one of the complainant’s most valuable slaves, and proposed to take the negro, and advance the amount of the execution, and if complainant, in three months, refunded the money, the slave should be returned. The complainant having assented to this proposition, the said May paid off and satisfied the execution, in Tombeck-bee money, and took the slave into his possession.
    The Chancellor, on a final hearing, decided that the transaction was a mortgage; and decreed restitution, on the payment by complainant, of one half the nominal value of the Tombeckbee notes, paid by defendant in discharge of the execution against complainant’s property. The Court also decreed Costs against the defendants to the bill.

      The assignments of error, appear in the opinion of the Court.
    Ehwin, Tor Plaintiff in error, contended
    That the Court erred in refusing to dismiss the bill for want of security for costs, pursuant to the statute, Eastin being a non-resident. Security was regularly required on the 18th of September, 1829; and at the next term (March, 1830) the Court refused to dismiss the suit, on motion of the present plaintiffs in error, but permitted security then to be given for the retrospective costs — six months having elapsed after security was required, and during which no security was given. The statute requires the suit to be dismissed, unless security be given with the clerk of the Court within .sixty days after the notice. The language is plain, positive and imperative. Shall its requirements be observed or not ? Aih. Big. 262. The Court improperly rejected the transaction as a mortgage : the Rank debt was paid off by May. But in the progress of the transaction, May offered to take the two slaves, until Eastin should pay off the amount. This would have boon a mortgage ; as it would have been intended to secure the payment of money; and that is the test. But Eastin did not accede to this proposition. lie, on his part, proposed to make an absolute salo to May of the girl Dorcas, iu consideration of his paying off the Bank debt; and to this May acceded. May indeed, afterward, agreed that if Eastin would repay him the money and certain other dues, -within three months, he might have the negro again. This was no mortgage. It was not even a conditional sale; because this proposition, was made-after the sale had been completed. To have made it a sale, it should all have been done at the same time. This was not a contract for tiie security of money, but an absolute sale, ás May states on his oath. Can such a sale be explained away and converted into a mortgage? Certainly not. There were no circumstances of fraud in the case. The debt discharged by May, was equal to the value of the girl. If, after this transaction, the girl had died, is there any doubt that • it would have been May’s loss? There can be none. May would have had no remedy for the money he had paid. The bank debt was discharged} and the slave had been received in satisfaction. Such being the case, this could not have been a mortgage. — 4 Kents Com. 38. 1 Pom. on Mart. 120 to 127, note 2 — 138, note p.

    The fair criterion, whether a conveyance be a mortgage, is, in the remediss being mutual, the ven-dee having all the remedies of the mortgagee. — Hammond’s Dig. 363 — 2 Cranch, 237. A clause of privilege of redemption alone will not be sufficient of itself, to convert the transaction into a mortgage, where there is no bond or covenant for the payment of the purchase money.
    Eastin says, a friend offered to lend him the amount in Tombeekbee money, to pay off the execution. May denies that any was offered, but admits that he instructed the sheriff’ not to receive such notes, as he had been informed they would not have been a good payment.
    The sheriff ivas not bound to receive these notes, If it had been a suit against Eastin, the notes would not have been a set-off to the debt. The rule of law is clear, that a defendant can not go out, and buy up debts to subject a plaintiff to costs. Surely then Eastin could not offer these notes in payment, where he was not even defendant in the action. The exe-cntion called for gold or silver, and the Bank would not have been bound to receive any thing else. Eas-tin received par currency in the first instance; he could- not have been injured in being bound to make payment in the same. A Bank demanding payment of another Bank, is not bound to receive its own notes in payment, because bank, bills are only payable. at the counter of the Bank where they were issued. — 3 Starhiés Ev. Part 4, 1392 — Cox' Dig. 81; 19 Johns. 332.
    Where a bill is filed by a mortgagor to redeem, there being still a balance due, the rule is, that the complainant must pay costs. The Court, therefore, erred in- awarding costs against May.
    Peck,- contra.

    In regal'd to the motion to dismiss .for want of security for costs, the record does not shew the fact that the complainant was a non-resident, nor that the same was admitted. The language of the motion says so; but that is no evidence ; it is only-an allegation,
    In cases of this kind, the Chaucellor must have discretion. Suppose it had been shewn, that from the absence of the clerk, security could not have been given, would the Court have been right in dismissing for that reason ? The various reasons which may have induced the Court to refuse to dismiss, can not now be looked into, in the existing state of the record.
    As to May’s contract in taking the girl, it was not even a mortgage, but a pledge. A mortgage conveys the title": a pledge does not. In a mortgage, a man can not bring trover or detinue, after tendering the amount: in a pledge he may. It is said there must be an obligation to pay the money, where there is a pledge or mortgage. So there was in this case, as the answer shews, an express promise on the part of Eastin. Tho answer speaks of the transaction asa mortgage or pledge, and speaks of allowing Eastin to redeem, a term not applicable to a sale. If the sale had even been absolute at first, the subsequent agreement would, according to the doctrine of Kent, have rendered it a mortgage. I do not admit that if the slave had died, it would have been May’s loss. Eastin would still have been bound to pay the money. If it had been an absolute sale, instead of a temporary pledge, May would, in all probability, have taken a bill of sale.
    The answer it is said, must be taken as true. That is the principle : so must the testimony of a witness be taken as true. But a witness may contradict himself; and so may an answer contradict itself, Tf, therefore, in one part of this answer the sale to May is said to be absolute, yet if other statements in the answer shew that it was but a pledge or mortgage, we are not bound to regard it as a sale.
    The defendant, May, seems to have played an extraordinary part in this transaction. The execution ■was against himself; yet he controls it and directs what kind of money shall, and shall not be taken. He will not let Eastin pay off the execution in Tom-beckbce money; imposes severe terms upon him; gets his slave into his own possession, and then actually pays off the execution in this half-price mousy. Under these circumstances, the Court was surely right in not requiring more of Eastin than the value of the paper paid by May.
    As to costs, the general rule is as stated by the counsel for the plaintiff in error; but it has many except ions. Whenever there has been an uneonsei-encious defence set up by the mortgagee, or when he has thrown improper obstacles in the way of redemption, the mortgagor is entitled to costs. The pledgee, here, by refusing to permit redemption, except upon terms not equitable, was the cause of suit, and of course, of the costs ; and therefore,- that he should be subjected to the payment of costs, is no more than equitable.
   By Mr. Justice Hitchcock :

The appellants contend for a reversal of the decree in this case, upon the following grounds :

1. That the bill should have been dismissed for an improper joinder of Patrick May with James May; and also because the defendants are charged in their representative and individual characters.

, II. That the Court had no power to refuse the motion to dismiss the bill for want of security for costs; the statute being, as they contend, peremptory.

III. That there is error .in the interlocutory decree of the Chancellor.

. 1. In deciding that the first purchase by Buchan-non, was a mortgage.

2. In ■ deciding that the purchase of Dorcas, by James May, was a mortgage; and,

3. In requiring Eastin to pay to May only one half the nominal amount paid to the sheriff by May in Tombeckbee money.

IY. That the Chancellor who made the final decree, erred in giving costs to the complainant.

These several positions will be examined in the order in which they have been stated : and,

1. The bill charges a mortgage to have been made by the complainant to the defendant’s testator. It charges also, that the last transaction, in the payment of the execution, and sale of Dorcas, was a mortgage. It necessarily required answers from both of the defendants, and an account relating to their representative character, and as to James May, an individual account: it was therefore impossible to have a full and final hearing of the whole matter without making the executors of Buchannon parties; and the result, shewing that a decree was required to be rendered against one only of the defendants, and that in his individual character, does not present matter of error, and even if there had been improper parties to the'bill, James May cannot complain on that account, if there is no other error in relation to himself.

II. As to the alleged error, in not dismissing the bill for want of security for costs, we think that was a matter in the discretion of the Court below. Though the language of the act is peremptory, and declares that when the security is not given within the time required, after notice, the bill shall be dismissed; yet the act being intended for the security of the defendant, and beingno bar to a subsequent suit, the Court below, it is considered, has the power to control the snit, and to refuse the motion upon such terms as his discretion may dictate. This has been the invariable practice on the Circuit, and we are not at liberty to give any other construction to the act. There are so many circumstances which may arise, to excuse a party for not strictly complying with the letter of the statute, that to refuse to the Courts below any discretion, would often lie productive of great injustice.

III. The third position to be discussed, involves the merits of the bill, and to it the attention of the Court has been principally directed.

I. The first division of this branch of the subject, as to the character of the sale to Buchannon, we shall bestow but little time upon. It was evidently a mortgage: the circumstances and manner of the sale, the instructions contained in Buchannoirs letter to John May, (though he calls it a purchase,) the payments made by Eastin on Buchannon’s note in the Tombeckbee Bank, the possession by Eastin of the property, and the final settlement by James May, and reb’aquitdmient of the balance of the property after he had taken the slave Dorcas, all conspire to give to the transaction the character of a mortgage ; and indeed we do not understand the appellants to contend for any other construction of the transaction, except in the event of our setting aside the sale of that negro : we shall therefore leave that part of the case, without further enquiry, and proceed,

2. To enquire whether Eastin has made out a caso in his favor, in relation to the girl Dorcas.

lie states in his bill, that after the sheriff liad, by the directions of May, refused to receive Tombeclc-beq money in discharge of the execution, which, he avers, that he had found a. ’.friend who had agreed to advance for him, and which he avers to have been then fifty per cent, below par: he (May) “ selected the favorite and most valuable negro, and proposed to Easlin that he would advance the amount of the execution if Eastin would consent to let him take her with him ; and that if in three months Eastin should refund the money the said negro should be returned, otherwise to be absolutely his property.” To which proposal, the said Eastin says he agreed, and that as soon as this was seltled, the said May, at once paid the sheriff in Tombookbee money.

The defendant slates in his answer to this part of the hill, “ that after the levy by the sheriff upon two of the negroes, the said Eastin did speak of paying off the execution in Tombeckbee money, which was then under par, to which he (May) objected, because he had heard from a gentleman in whom he had great confidence, that the Cashier of the Bank had directed the sheriff of Clarke county not to receive the notes of the Bank in payment for its debts, from which he was induced to believe that the Bank would not probably receive their own notos in payment of executions ; and being extremely anxious to have the business finally settled, without any further difficultyy cost or trouble, ho was unwilling to receive any money but such as he knew would be taken by the Bank, without objection : that no notes of said Bank ■were produced or tendered by Eastin, neither does he believe he had any, and from his notorious want of credit and punctuality, he thinks it doubtful whether he could have procured any.” He admits “that he did, in his individual capacity ultimately pay off said execution in Tombeckbee money, by assuring the sheriff that if the Bank would not take their own bills, he would be responsible in good money: he avers that ho did not make a solitary cent by it, as he procured the notes from a friend, to whom ho afterwards paid back the full amount in good money, without any discount or deduction.” The answer further states, “ that after Eastin spoke of paying the execution in Tombeckbee money, he (May) proposed to take two of the negroes, Margaret and Dorcas, and keep them in pledge, until he (Eastin) would raise the money due on the execution, and pay it off, which Eastin -would not consent to. But that Eastin in his turn, proposed that May should take one of the negroes (which over he chose) absolutely, and payoff the execution, to which May agreed, and under which agreement he took Dorcas.” He then says, “ that after the business was all completely closed, that he, (May) informed Eastin that he did not want to keep the negro, and that if he would in three months pay him the said money, the amount he had paid on the execution, and eighty dollars for his time and expenses in attending to the whole of the business, for which he held his testator’s estate liable, and also the sum of forty two dollars and sixty four cents paid by his testator as a part of one of the instalments on the note due the Tombeckbee Bank, amounting in the whole to three hundred and thirty dollars, with interest thereon, that he, Eastin, might redeem and take back the negro, which the said Eastin promised to do.” — • The answer farther states, that the said sum was not paid within the three months, and that on two occasions since, the said J, May has - offered to return the negro to said Eastin, if he would pay the money and interest; and that on the last occasion he informed said Eastin, that unless he did. pay the amount he (May) would be compelled to sell her, andpropos-to him (Eastin) to consent to his selling her to John Gajde, jr. his brother in law, to which he (Eastin) consented.”

Eastin in his bill, states that “ he has proposed to leave the subject of their differences to arbitration,but which proposition the said May rejected, and that he refuses to return the negro to Eastin until he shall be paid the amount of the execution in good money, with the eighty dollars, his expenses, &c. he charges the negro to have been worth, at the time of her delivery to May, the sum of- five hundred dol- > lars, and her hire to be'worth ten dollars per month.

May admits that he has .refused to arbitrate; de~ iiies that there axe any differences to settle; avers the negro not to have been worth, at the time he received her, more than three hundred and thirty dollars, and that her hire is not worth more than five dollars per month.

These are all the material statements in the hill and answer, relating to this part of the case. They were submitted without testimony on either side, and it became the Chancellor to give such a decree as was consistent with justice* and the rules of equity. There is no written evidence of the transaction* the whole case depends upon the recollection of »the parties, of what transpired at the time. It is not therefore strange, that under the circumstances in which the parties present themselves before the Court, and the state of feeling exhibited in the criminations and recriminations with which the bill and answer both abound, that there should be some discrepancies in their respective relations of the transaction.

If we take the statement in the bill, as containing the true history of the transaction, we should not hesitate to say that Dorcas was delivered as a pledge* which is defined to be “ a deposit of goods redeemable on certain terms, with or without a fixed period of redemption,” in which the .delivery of the goods to the pawnee is essential to its validity, and when a redemption is allowed after the day of payment, if one be fixed.

If we take that part of the defendant’s answer which relates to this matter, we should say that it was an absolute sale, with an agreement for a repurchase within a given time, and which is totally distinct in its character from that of a pledge or mortgage, and which though narrowly watched, is still valid, and in which the time limited for the re-purchase must be strictly observed, or the vendors right to reclaim his property will be lost. In the first case there is, in fact, no sale or transfer of title, the property remains in the pawnor, and the equity of redemption is secured; in the other, the title is transferred, and the transaction is considered strictly as an independent dealing with a siranger, and equity can give no relief.

In cases of this kind, it is the duty of the Court to get at the character of the conveyance, by looking into the intention of the parties, from a view of all the circumstances of the transaction. In this view, it is not very material to criticize the precise language which either party employs in the relation of it, orto stop long in scrutinising the various propositions made, or by which party they were proposed, whatever that may be, if the transaction in the first instance appears to have been intended as a pledge or mortgage, with a proviso for a re-conveyance within a certain time, such circumstance will vitiate the salé, and turn the absolute conveyance into a mortgage, and the proviso will be rejected as repugnant to the rule of equity, that the right of redemption can not be limited or restrained.

In this case, May, though the defendant, (as executor of Buchannon) to the execution; must be viewed as the judgment creditor of Eastin, having his property in the hands of the sheriff; Eastin’s circumstances are stated by him and admitted by May to be embarrassed, so much so, that May doubts his ability to raise enough Tombeckbee money at half its nominal value,- to pay the execution, and which, even if he had been able to do, he had refused to permit the sheriff to receive. May admits that he did receive the negro for the amount of the execution, which was two hundred and seventeen dollars; that immediately after the purchase was made, he informed Eastin that he did not want the property, and that he voluntarily offered to return it, upon being reimbursed, what was, as he conceived, but justly due to his testator’s estate; that to this proposition Eastin agreed: Eastin considers the property tobe worth five hundred dollars; May does not consider it worth more than what he is to receive, and on two several occasions after the time for redemption is past, he calls upon Eas-tin to redeem; and on the last, asks permission to-sell the property to the brother in law of Eastin. The negro was a family negro, raised by Eastin’s family, and received by him on his marriage, and either she, or one other in a similar situation must inevitably be sold to pay this debt, unless some arrangement, for a pledge or mortgage can be made. Is it not then,'under these facts, the duty of the Court, to vitiate this transaction as a sale, and consider it a mortgage ? Did not the relation of creditor, in which May stood, give him such an advantage over Eastin as to. enable him to dictate his own terms; and would not the Court, if the transaction had been reduced to writing, and presented itself in the language employed by May in his answer, be authorised to give Eastin the-right to redeem? If Eastfia’s estimate of the value-of' the negro is. correct, she was worth morn than double-the amount of the execution; and if it could have been paid in Tombeckbee bills, at fifty per cent, discount,, she was worth more than four times the debt. If May’s estimate is correct, as to her value, ■ and we are to take his statement that he did not wish to keep-her, to be true, this object was only to secure his debt, and exonerate the estate of his testator. The whole-trade, whatever it was intended to be, -was made at. the s.ame time, and must be taken as one transaction, and whether the proposition for the sale and re-sale came from May or from Eastin, and whether it was ■before or after the execution was satisfied, the inducement so far as Eastin is concerned, remained the same, and the power of May to dictate the terms, was also the same.

There is one other circumstance which weighs very much in my mind, to give Eastin the right of redemption. It is this, after May had delivered the execution to the sheriff, and the levy had been made, there can be no doubt but that the estate of Buchan-non was discharged, and the sheriff had become responsible for the debt; and whatever May may have thought on the subject, he had, in reality, no right to dictate in what money the execution should be satisfied. That as an honest man, he was bound to communicate to the sheriff such information as he had received, and upon which he relied as to the inclination of the Bank to refuse receiving its own bills in payment, is undoubtedly true : but be bad no right to control the sheriff: he was not the agent of the Bank, or the guardian of the sheriff. Eastin positively states that he could have raised the Tombeck-bee money through a friend, and that he was jirevent-ed by May. May admits that Tombeckbee money was under par, and that he refused to receive it; it is true that he doubts Eastin’s ability to have raised it; but of this he could not judge, and he had no right to give an opinion. This unauthorised interference, together with the fact, that he did himself, immediately after the purchase of the negro, pay the debt in those bills, places the transaction in a still stronger light than it would otherwise appear, in favor of Eas-tin, That the information he received, and upon which lie alleges lie refused to let Eastin pay in Tombeckbee bills, could not have been correct, is evident as it is not pretended in the answer that May was over called on by the sheriff to make any farther payment to him ; it may therefore be assumed that the Bank was willing, and did receive the bills of its own Bank in payment of this debt, and that May, by his authority, prevented Eastin from the benefit of such payment, and it is equally evident, that if Eastin had been permitted to make his own terms with the sheriff, he would not have sold his negro to May.

Under these views of the case, and taking into consideration the well known rule, that Courts have always leant extremely against contracts of sale with liberty to re-purchase, being always inclined to bring them,to be cases of redemption : this Court are of opinion, that there was no error in the decree of the chancellor below, in considering this transaction as a mortgage.

III. Did the Court err in requiring Eastin to account for only one half tiio amount of the nominal value of the Tombeckbee money ? We think not: by setting aside this salo and opening the transaction, and requiring such an account as would do justice to the parties, we think that May is only entitled to so much as Eastin could have paid the debt with. Eastin expressly charges, that Tombeckbee money was then fifty per cent, below par, and that he could and would have paid tho execution in that money. May admits that money to have been below par, but how much, he does not state; he therefore substantially admits the truth of that allegation of the bill, and in taking upon himself to pay this execution for Eastin, lie was bound to pay it on as good terms as Eastin could have done it, and it is of no consequence that he paid a friend the full amount of the Tombeokbee bills in good money. The en-quiry is, not how much he did make, but how much Eastin could have saved.

IV. There is only one point remaining, which is, as to. the costs of the suit.

As a general rule, it is true, that when a mortga-. gor comes to redeem, he must pay the costs of the proceeding. Yet there are cases in which the mortgagee is not allowed costs, but when he has been de-. creed to pay them; and one of the instances of this, kind is, where the mortgagee sets up air absolute ti-. tie in himself, which is the case here. This Court,, however, will not generally reverse a case after a full hearing upon the merits, merely on the ground that costs are decreed, though they might not have decreed costs, if the case had been before them as an orf. ginal bill.

The decree must therefore be affirmed.

       4 Kent's Com. 138.

       Pow.on Mor. 138.

       1Ves. sr.406.

       2 Mad. 554.


text:
    BOARDMAN versus POLAND.
    ít‘is definitely settled, that the Supreme Court will not loók to the indorsement of a writ, for the purpose of finding error, 'to reverse a judgment.
    Although it is error, that judgment should be entered for a greater amount than that claimed in the declaration, ye1, judgment will not be reversed as to mere technical divisions of the separate amounts of debt and damages, when the agrégate ámount of such judgment, is less, than the agrégate sum laid in Hiie declaration.
    Poland obtained a judgment by default; in debt, against Boardmán, in the Circuit Court of Madison.
    The cause of action declared on, was a promissory note, for the sum of three hundred and eighty eight dollars and six cents, which the defendant owed; &c; to the plaintiff’s damage 'one hundred dolíais. The clerk of the Court below, in entering up judgilient against the defendant, rendered it for the sum of one hundred and forty eight dollars, debt, ánd one hum dred and fifteen dollars, damages. Boardman took á writ of error to this Court, and sought a reversal of the judgment, on assignments which appear in the opinion of the Court.
    S. Parsons, for Plaintiff — McGltjng, contra.

   By Mr. Justice Hitchcock :

This was an action of debt on a promissory note. The declaration demands three hundred and eighty-eight dollars and six cents debt, and one hundred dollars damages. There was a judgment by default; and the clerk, under the statute, computed the debt, and damages, and judgment was rendered thereon for one hundred and forty eight dollars debt, and one. hundred and fifteen dollars damages.

Two errors are assigned;

I. That there is a variance between the endorsement of the cause of action on the writ, and the declaration in the date of the note, and

II. That the damages allowed are greater than those.claimed in. the writ and declaration. . •

I. As to the first assignment, it has been repeatedly decided, that this Court will not look at the endorsement of the writ, for the purpose of finding error to reverse a judgment.

II. As to the second, this Court decided, in the case of Dinsmore vs. Austil, thatwhere the judgment is for a greater sum than that claimed in that declaration, it is error : there was also, in the case; an error in the calculation of interest.

In the case of Mc Whorter vs. Sayre & Sayre, the damages claimed in the declaration were one hundred and thirty dollars, and the verdict of the jury was for two hundred and sixty eight dollars and ninety three cents : for this error the judgment was reversed.

It is conceived, that this case is distinguishable from the other two. Here, the aggregate amount -of the judgment is for less than the aggregate amount claimed in the declaration — the amount of the debt being for much less, and the damages for fifteen dollars more. The clerk, in making up the sums might have included the whole amount as debt, and-there would have been less than the amount claimed, as debt, in the declaration; and - -we do not think that when there is no error in the amount of the judgment, that we should reverse a case for any technical division of the sum' — the declaration being sufficient to cover the whole amount.

The judgment must, be affirmed.

       Ala. Rep. 89.

       2 Stewart225


text:
    HOPKINS versus THOMPSON.
    Dstinue, lies by the mortgagee, to recover possession of personal property mortgaged, after the time for the redemption of the mortgage, has expired. The question, whether a transaction was intended as a mortgage, or as an abl solute sale, is one of fact, for the determination of a jury.
    Hopkins brought an action of detinue, in the Circuit Court of Jackson, to recover the possession of certain slaves.
    The record, disclosed, that a bill of sale for the slaves in question had been originally executed by one Hammons, to the plaintiff — that by a defeasance connected therewith, the said slaves were subject to redemption, on certain terms and conditions specified therein — that Hammons having failed to redeem the slaves, the bill of sale, by his acknowledgment, was considered absolute, and possession thereof, given to the plaintiff: that Hammons, afterwards, secretly took the slaves into his possession, where, they were levied on under judgments subsisting against him, and bought by Thompson. ■
    In the progress of the trial, the Court below determined, that the transaction between Hammons and the plaintiff was a mortgage, and charged the jury, that an action of detinue was not sustainable to recover possession of the mortgaged property, without a foreclosure of the mortgage.
    Verdict and judgment having been rendered for the defendant, the plaintiff took his writ of error to this Court.
    Hopkins, for Plaintiff — S. Parsons, contra.

   By Mr. Justice Hitchcock :

This was ail action of detinue for two slaves. The evidence on the part of the plaintiff w&s, that in 1817, one Hammons made an absolute bill of sale of the slaves -to the plaintiff, who on the same' day executed to the said Hammons, a written defeasance, stating that Hammons was- to retain possession of the slaves for twelve months, and if at the end of that time he should pay to the plaintiff the amount expressed in the defeasance, he would be entitled to the return of the bill of sale, and to the property in the slaves. That at a subsequent time, the plaintiff gave to Hammons another written instrument, in which he stated, that if Hammons should pay him within twelve months from the date thereof, three hundred and twenty four dollars, in addition to the six hundred expressed in the bill of sale, that the slaves should be his. That in April, 1819, the absolute bill of sale was acknowledged by Hammons to the plaintiff, without any condition, and the slaves delivered up to him.- ' It was proved that before this acknowledgment by Hammons, Hopkins the plaintiff, had paid what Hammons admitted was a satisfactory price for the slaves. Immediately after the slaves-were delivered to the plaintiff, and the bill of sale was. acknowledged, Hammons removed from the State of Tennessee, where all the parties resided, and where the plaintiff still lives, to this State. That several months afterwards, Hammons returned to Tennessee, and secretly took the slaves from a plantation of the plaintiff’s, upon which they were, under the control of an overseer, and conveyed them to this State; after which, two judgments were rendered against him, upon which executions were issued, and under which the slaves were sold; and under which sale the defendant claims to hold. It was proved that when Hammond was charged with stealing the slaves, for having taken them from the possession of the plaintiff, as above stated, that he said he felt no danger from that, as the plaintiff, when they settled, had neglected to take up the equity of redemption, which he still held of the slaves.

The Court below instructed the jury, that under the evidence, the plaintiff was only a mortgagee of the slaves, and that the action of detinue did not lie to recover them, without a foreclosure of the mortgage; a verdict way, under these instructions, found for the defendant and theca.se is brought hereby writ of error.

The Court below erred in both of the instructions given.

On the first point, the jury were the proper tribunal to decide as to the character of the plaintiff’s title. Whether it was a mortgage, or an absolute sale, was a question of fact, deducible from the evidence produced, which the Court should have left to the jury.

As to the second instruction, there can be no doubt but that detinue does lie to recover personal property mortgaged, after the time for the redemption of the mortgage has expired. By the mortgage, the legal estate, as between the mortgagor and mortgagee, is vested in the latter, and he has the right to recover the possession, of the property, for the purpose of sub-iecting it to the payment of Iris debt, and he may proceed either at law or by bill in equity.

Let the judgment he reversed, and the cause remanded,

       4 Kent, 154, 155, 164.


author: By Mr. Chief Justice Saffold :

text:
    BULLOCK versus WILSON.
    The duplicate receipt of the Receiver of public monies (on an on try of public lands) is, before the issuance of the patent thereon, sufficient evidence of title to authorise the Iona fide holder of the same, to maintain the action of trespass to try title.
    Every water course in this State, suited to the ordinary purposes of navigation, whether it ebbs and flows, or not, (where the government has not expressly granted any part of the lied thereof, or computed it in the quantity granted) is a public highway; and the owner of lands bounded by any such naviga. ■ ble stream, can assert no private right of soil to the bed of the river beyond the low water mark.

      Semble: — The authority, under an act of the Legislature to erect a mill on such water course, must be exercised with reference to the rule, sic utere tuo, ut alienum non Icedas..

    Trespass to try title in the Circuit Court of Shelby, by Wilson against Bullock.
    The action was brought to recover possession of a fraction of land, and the appurtenances, bounded by the Coosa river. On the trial below, a verdict was rendered in favor of the plaintiff, and on certain exceptions to the opinions of the Court, the defendant assigned errors here.
    It appeared from the record, that Wilson had entered the fraction of land, forming the ground of action ; and now claimed as appurtenant thereto, a certain mill, before that time erected in the bed of the river, opposite the fraction, by one Sawyer, under whom the defendant held.
    It was urged, on the part of the plaintiff, that having become the owner of the land on the river, he took part of the bed of the river; and so was entitled to the mill, because, that being' included between the North and South lines of his survey, attached to his grant. But it was said for the defendant, that Sawyer, under whom defendant held, had erected the mill under the authority of an act of the Legislature, and the subsequent entry of the land by the plaintiff was subject to the privilege : also, that this being a navigable river, the plaintiff could not claim soil beyond the high water mark.
    It was assigned for error in this Court, among other grounds,
    1st. That the Court permitted the plaintiff to give to the jury, as his only evidence of title, the duplicate receipt of the receiver of public monies in the land office.
    2d. That the Court charged the jury, that if they were satisfied from the testimony, that the mill attached in any manner to the land included in plaintiff’s grant, it was appurtenant to his premises, and therein included.
    Wilson, for Plaintiff in error.
    The mill, in regard to which there is a contest, belongs, as we contend, to the body of the river. The Court instructed the jury, that if the mill was in any manner attached to the bank, the owner of the land was entitled to it. This was a navigable stream. The limits of a navigable stream extend to high water mark. The lines of fractional sections have not the power of locomotion — or rather of expansion aud contraction, to conform themselves to the state of the water. The owner of the mill derives his right from the State. The proof in this case shews, that even at low water mark, the water ran round and on the out side of the foundation timbers of the mill. According to the civil law, the limits of a navigable stream extended out to the extent of the highest freshets: according to our law they extend to ordinary high water mark. — See 2 Johnson, 362.

      The Court seems to have departed from the maxim of the Common Law, that the man who owns land owns all that is above and below, within the limits of his lines. The doctrine of the Court seems to be, that ho owns all that is attached to his lines. This is extending the rule laterally instead of perpendicularly. In this new sense, I trust, it will not be recog-nised as law.
    The certificate in this case is not one of those referred to in the act of Assembly, making certificates evidence. There was not, therefore, such evidence of title as would sustain ejectment.
    Peck, contra.

    The certificate is such an one as entitles the party to a patent: it is therefore such evidence of title as will sustain the action.
    Bullock -built his mill abutting against the bank, The Common Law rule is, that there is no space between the land and the water. — 6 Comen, 544. And we find it laid down .as Common Law in Corven, that the owners of the land own to the thread or centre of the river. This is true limit for land holders in streams not navigable; and navigable streams, according to the Common Law, are not such as the Coosa river, but streams where the tide ebbs and flows. In navigable streams of this kind, the limits of land holders extend to low water mark, so that there is still no land between the land holder and the government, whose authority extends over the water. The Court is referred to the Kentucky and Ohio case, where the contest related to an island in the Ohio river. — 5 Wheaton, 325.
    What is meant in our laws by declaring a stream a public highway. It does not relate to the bed of the stream, but to the right to float over it on the water : it is a peculiar kind of rigid of way. The bed of the river still belongs to the land owners on each side, to the middle or thread of such river. The Judge did not go as far as this. He charged the jury that the grant covered the land as far as there be land. The charge was clearly right. He also charged the jury that if the mill was attached to the hank, the owner of tire land had a right to recover it as a tenement or appurtenance. This doctrine also may be well maintained, even if the right of the land holder does not extend to the thread of the stream.— When the United States government grants land on the bank of a river, it grants all the water privileges connected with it. These are often as important as the value of the soil. The reservation of the stream as a highway, is not a reservation belonging to the state : it is a reservation by the general government in behalf of the citizens of the United States; the State, therefore, has no such right in it as would au-thorise it to grant to any one the privilege of erecting a mill on the bed of the river.
    Wilson, in reply.
    If the doctrine here contended for be true, it might be important to know whether the action was brought in the winter or in the summer. This doctrine makes the line fluctuating. If a part of the mill overhangs the land, damages might be recovered for such overhanging; but not the value of the mill which was founded in the bed of the river.
    Our lands in this State stand on a different footing from those in other States in regard to the rivers on which they border. The navigable streams are made public highways, and they do not belong to the land owners upon their banks. The State, although she may not obstruct the navigation; yet in virtue of eminent domain, she may use or grant the bed for any other purpose. She possesses all the authority not granted away. Land owners only border on the bank, and the State is only restrained as to the navigation. The mill was erected under an express grant from the Legislature. Can the entry by an individual of the adjoining land, enable the enterer to nullify the act of Assembly establishing the mill? Can he deprive the mill owner of the privilege that he had under the legislative grant ?
   By Mr. Chief Justice Saffold :

The action was trespass to try titles, and recover damages, instituted by the defendant in error, pursue ant to the statute, in lieu of the action of ejectment, &c. The land in dispute, as described in the declaration, is the south east fraction of section number seven, in township twenty one, of range two, east, containing one hundred and forty five acres, in the county of Shelby. The trial was had on the general issue. The matters assigned for errors grew out of a bill of exceptions taken on the trial by Bullock the defendant below, against whom a verdict and judgment were had for the premises; also, for damages.

The first point of exception is, that the Court sanctioned an amendment of. the declaration, made between. the time of ordering-a non-suit, and reinstating the cause, without due notice to the defendant below, and formal leave of the Court. The Court appears to have ruled that the leave was sufficiently implied by the order setting aside the non-suit, on the affidavit on which it was founded. •

As to this objection, it is sufficient to say, the allowance of amendments, is generally within the dis-cretiou of the Court, and as tlie Circuit Court recog-nised tire authority for this amendment, the allowance of it is not subject to revision in error.-

It further appears, that after the cause was put to the jury, the plaintiff below offered as his only evidence of title, a receipt (purporting to be in duplicate) in the usual form under the cash system of disposing of the public lands, given by the receiver of public monies of the land district, to James Wilson of Bibb county, for the sum of one hundred and eighty one dollars and twenty five cents, expressing to be' in full for the fraction of land described in the declaration. To the introduction of which, as evidence'of title, the defendant objected, but the objection was-overruled.

In admitting- this receipt as evidence, the Court is also charged to have erred. The objection is understood to have been made with reference alone to the grade of interest or' title indicated by the paper, without questioning its genuineness; and this in the absence of any evidence of an adverse title. I consider it unnecessary to enter -into an elaborate investigation of the principles of law applicable to this point;, they are too well settled to require it. By the laws of the United States, the legal and bona fide holder'' of a receipt of this kind, is indefeasibly entitled to a-patent for the same. Nothing more is necessary oil his part to secure it. He already has a legal right — - the receipt and the law, imperatively command the issuance of the patentas the complete evidence of the title. Until it shall have issued, the receipt is the best evidence of the right which the case admits of. This is within the of the statute of 1812, which recognises all certificates issued pursuant to any act of Congress, upon any warrant or order of survey, or to any donation, or pre-emption claimants of lands, as vesting in the holders “ a full, complete and legal title,” so far as to enable them to maintain any action thereon; and constitutes the same evidence thereof in Courts of justice. -So far as there is any difference in the character of the evidence, or grade of title, a receipt of this kind is the more conclusive. But I do not consider receipts of this nature as requiring the aid of any statute. Upon the principles, of the Common Law, they must be regarded as evidence of a grade of title which at least confers the right of possession, and this alone is sufficient in this action. But it is more: it is nothing less than inchoate evidence of an absolute title. Various decisions of this and other Courts, (De la Croix vs. Chamberlain,) sustain this principle in terms or by analogy. — (See Hallett vs. Eslava, Lewis vs. Goquette, Heirs of Rider vs. Innerarity.c) It was further objected by Bullock as defendant below, that the county surveyor was admitted as a witness for the plaintiff, and his evidence deemed competent by the Court, to ascertain the boundaries, of the land in question. He swore that by tracing various lines by the marked trees, he ascertained the north west corner of the fraction, which was not marked ;■ he then ran due south on both the sectional and township lines to the south west corner, which he ascertained by taking the bearings and distances; that, then he ran the south line to the south east corner, but found no marked corners. From this latter point, he ascertained, by setting his compass, and observations taken, that a line due north would strike the Coosa river below the mill: that he then retraced his line half a mile west, thence run due north half a mile, thence east to the river above the mill; arid that iri this way he ascertained the mill to be between the north and south boundaries of the plaintiff1!s fraction, and that opposite and for some distance'above and below the mill, the fraction was bounded on the east by the river.

On this point it is considered sufficient to say, the character of the evidence was equal to any that the case would admit of, and was therefore competent.

Another feature in the case is, that Sawyer, under whom Bullock derived his title to the mill, had erected the same in the river, under the authority of an act of the General Assembly of the State; that this was a considerable time before Wilson became the purchaser of the fraction opposite; that the mill stood in the bed of the river; except that a little of the bank had been cut away, to make room for the north and south mud sills to be laid in it on a level with the bed of the river; that the west sill, or streamer being laid upon these sills, the current of the river ran around them, between them and the bank ; that the bluff of the river was nearly perpendicular, so as to confine the water, except in extraordinary freshets; that about five feet of the upper frame of the mill-house projected over the top of the bluff, but without touching it; and that the puncheons passing from the mill door down to the bluff, were about twelve feet long. This invasion upon the land, or use of the bluff, appears to be the true grievance complained of.

In this state of the evidence, the Court being requested to instruct the jury on the several points of law arising upon the facts, and having refused some and given others, the following additional questions •are presented for our consideration, as embracing all the remaining points of the case.

I. Admitting Wilson’s title to the fraction bounded on the east by the Coosa river, what was the extent of his right or boundary on the margin of the river ; does he own-all the naked land to the water mark, whether high or low, as was the opinion of the 'Circuit Judge?

II. Was it erroneous to instruct the jury, that, if ■the mill was in any manner attached to the plaintiff’s bank, it was an appurtenant to the premises ; and included in his grant; also that the plaintiff was entitled to recover damages for the use of it ? These latter instructions were given.

III. Was the Circuit Court correct in refusing instructions that the verdict should except the mill out of the land if the latter were found for the plaintiff, and not'the former also ?

• IV. Did the Court err in refusing instructions, that if the mill had been previously erected, abutting on the bank, under the authority of the State law, and this known to Wilson when he entered-the land; he entered subject to the nuisance, if any, and was remediless ?

1. The fact may be assumed, indeed does not appear to have been contested on the trial, that the Coosa river at the point in question, is a fresh water, navigable stream. Nor do T understand the principle to be contested, that by the existing laws of the government all such streams are recognised as common or public highways. The act of Congress of 1803, '■*‘ Regulating the grants of lands, and providing for-•the disposal of the lands of the United States, south ’■of the State of Tennessee,” declares, that “ all navigable rivers within the territories of the United States .south of the State of Tennessee, shall be deemed to be ,and rejnain public highways.” The subsequent act of 1819, continued this provision under the State government, with the further stipulation, that all such waters shall remain free to the citizens of the State and of the United States, without any tax, duty, impost, or toll therefor, imposed by the State. To these regulations, the people of the State, by their representatives, in Convention assembled, have given their assent and confirmation.

The Legislature of the State has also declared that all water courses reported to be navigable, by the surveyor of the United States, employed in surveying lands in this State, shall be, and remain free and ’ open.

According to the laws and practice of the United .States government, relating to the surveys and sale of the public domain, the Coosa, as well as other similar water courses, is virtually excepted from all private grants. The lines of the survey stop at the margin of the river, by which means, fractions (as in the case before us) are created; and the -purchasers ■of such are only charged for the true quantity of land, the bed of the river being excluded. In respect to grants of lands bounded by water courses, where there is no statute regulation on the subject, or express exception in the grant, intricate and highly interesting questions may arise as to the extent of the proprietor’s right on the margin. In such cases, the character of the water, whether the sea, a navigable river where the tide ebbs and flows, a fresh water navigable stream, or one not navigable, is material to be considered in determining the extent of the grant.

There has been much litigation, whether the right extends to the high, or low, or the ordinary water mark, or to the centre, (often called the thread) of the river. Our chief concern at present, is with a navigable river, where the tide does not ebb and flow.

To the case of Jennings, ex parte, the Reporter has appended a note, in which are collated most of .-the authorities on this subject. A brief notice of this, instead of the original cases, will suffice on the present occasion. It is there said to be settled by the Common law, "that where a man's land abuts or adjoins to any river above tide water, he owns the river to the centre of the stream. That as long ago-as 1805, in Palmer vs. Mulligan, it appearing that the defendant owned the shore- of the Hudson as low down as still water, this being above tide water, Thompson, Justice, and Kent, Chief Justice, applied to this case the doctrine, (which had been held by Lord Hale,) that his ownership extended to> the centre of that great river; and the latter then hinted at what has since been established, that if a State will bound a grantee upon a river not navigable, he shall hold to the centre, unless there be an ex-Repception of the river in the grant. In Adams vs. Pease, the plaintiff owned a large farm- bounded east on Connecticut river, above the flowing- of the tide; but where-it was large and passable for flat bottomed boats of thirty tons burthen; and some times, vessels built above-had been floated down ; yet it was held, that a boundary, in terms, on the river carried the-plaintiff’s ownership of the river to its centre. The rule is there laid down by Swift, Chief Justice, that the adjoining proprietors have this right. The doctrine of this latter case appears to have been approved in its full extent by the Supreme Court of New-York, in Hooker vs. Cummings, where it was applied to the Salmon river, which empties into 'Lake Ontario.Spencer, Chief Justice, in delivering the opinion of the Court, said, “ If the soil on both sides be owned by an individual, he has the sole and exclusive right; hut if there be different proprietors on"each side, they own their respective sides-adfilum medium auquos. The Court then also approved what Kent, Chief Justice, said in Palmer vs. Mulligan, that the Hudson was private property down to still mater. They also show that cases holding the contrary in Pennsylvania, are founded on a repudiation of the Common Law.

In the case of Arnold vs. Mundy, the plaintiff’s land ran to, or was bounded on a river, where the tide did ebb and flow; and he, and those under whom he claimed, had staked off, and planted a bed of oysters, some of which the defendant had taken away ; for which the action was brought. On a motion for a non-suit, the Judge remarked, “ that a grant of land to a subject or citizen, bounded on a fresh mater stream, or river, where the tide neither ebbs or flows, extends to the middle of the channel of the river ; but that a grant hounded on a navigable river, or other water, where the tide does ebb or flow, extends to the edge of the water only, that is to say, (in the language of the opinion before us,) “ to high watermark, when the tide is high, and to low water mark, when the tide is low; but it extends no farther.” The plaintiff was there non-suited upon this distinction. On • a motion to set aside the non-suit, the Supreme Court, after full investigation, confirmed the distinction and refused the motion. The principle which is considered to have been established by that Court is, that “ a grant of land bounded upon a fresh water stream or river, where the tide neither ebbs or flows, extends ad filum aquos ; hut a grant bounded upon a navigable river extends to the edge of the water only.

From the cases referred to, it will be observed, that those Courts, proceeding on the Common Law, regard the ebbing and flowing oí the water, or either, as the criterion, whether' the stream or river be navigable or not; they also shew that fresh water streams were not put On the footing of such. This principle is farther illustrated by the case of Storer vs. Freeman, where Chief Justice Parsons, remarked, that “ by the Common Law of England, which our ancestors brought with them, claiming it as their birthright, the owner of land bounded on a fresh water river, owned the land to the centre of the channel of the river, as of common right; but if his land was bounded on the sea, or an arm of the sea, where the-tide ebbed and flowed, he could not by such boundary, hold - any land below the ordinary low water mark, for all the land below belonged of common right, to the King.”

It is very obvious, however, that, with us, the1 question does not depend on the tide, or fresli water; that if the river has been expressly recognised as a public highway by the Federal and State Governments; or even if it be of sufficient width and depth, and suited to the ordinary purposes of navigation, and the Government has not 'expressly granted any part of the bed, or computed' it in the quantity gran-* ted, which implies an exception, as in case of navigable water, the stream is thereby constituted a public-highway, and no individual can assert any private-right'of soil in the bed beyond the low water mark.His claim could have no better foundation than that in the case of the oyster bed planted in the tide water, both places being alike reserved for public use. That this is the true character and proper view to be taken of the Coosa Fiver, has I think been sufficiently shewn. Therefore on tilia -point tliero was no error in the instructions given below.

2. Tiro second point involves [lie same principle, so that the remarks made upon tiro firat are also applicable to this. It results from what has been said that Wilson coaid not sustain Iris title to a mill erected by himself in the bed of the river beyond low water mark. If be could not oilier wise, the circumstance of his having inserted the mudsills, or any other part of the house, or dam, into the bank, so as to attach the mill to his soil, would not improve-his title below the mark. Then it follows irresistibly that the fact of another having done the work can not extend his title. In either case the law could only re-cognise his title to so much of the building or works as came within his line; Therefore in this cas,e the plaintiff below could have had a right to recover only so much, of the mudsills, or other parts of the mill building, or appurtenances, as were actually situated within, his boundary, fixing it at the natural low water mark. Nor could ho recover these otherwise than as appurtenances to the land on which they rest,- and which mast pass with it in the restitution. Hence the conclusion, results, that the Circuit Court erred in the instructions, that if the mill was in any maimer attached to the plaintiff’s hank, it was an appurtenant, to his premises and included in his grant; also in ruling, that the plaintiff was entitled to recover damages for the use of it.

3. The third point is embraced and disposed of by the preceding views. It was unnecessary that the verdict should expressly except the mill.

4. The last point, involving the effect of the Legislative grant to Sawyer, under whom Bullock claims,was not intended to present any question as respects its intrinsic validity in reference to tire public. Such an enquiry would have been irrelevant to the case. The question was whether, if the mill had been erected under the authority of the act, prior to the plaintiff’s purchase of the land, and he entered with a knowledge of this fact, he took subject to the nuisance, if any. On this point it is sufficient to say, the act can have no constitutional effect to deteriorate the value of the public domain, or any title or interest which an individual may at any time, either before or afterwards, have legally acquired in the same. To avoid a conflict of grants, the Legislature may be presumed to have intended no such effect. The legal view of the subject is conceived to be this,, that any one intending to avail himself of the privileges- contemplated by the act, must observe the maxim, sic utere tuo, ut alienum non Icedas; and if he proceed without securing the adjacent lands, he must take upon himself the responsibility of the act, to all persons to whom injury may accrue from it. So that -on this question the Court below was correct.

But on the second point, relating to the effect of attaching the mill house to the bank, the judgment below must be reversed and the cause remanded.

       Aik. Dig,283.

       12 Wheat.599

         2 Stewart115

       In this Court.

        Aik. Dig.441

       Ordinace 1819

       Aik. Dig. 442

       6 Conven,518

       Idem, 544

       Caines,319

       2 Conn. rep. N.S. 431

       20 Johns. 91

       17 John.209 210, &c.

       1 Halst. N.J. Rep. 1

       6 Mass. R.438 439.


author: By Mr. Justice Hitchcock:

text:
    MOORE versus PATTON, DONEGAN & CO.
    Interest is recoverable on an open account for goods sold and delivered, where^ by express stipulation, the account is to be considered as due at a particular day.
    Interest held recoverable on an open account, on the common counts in assump-sit, where the defendant agreed to pay interest, and promised to give bills in discharge of the debt.
    Patton, Donegan & Co. commenced an action of assumpsit against Moore, the plaintiff in error, in Madison Circuit Court; and declared for goods, wares and merchandise, before that time sold and delivered to the defendant, at his special instance and request. The accounts of the plaintiffs, were for sales of goods for several years; and the question raised in the Court below, was, whether under the facts, interest was recoverable on the common counts. It was in evidence, that by express stipulation, the accounts were considered to be due, on the first day of January next after they were severally incurred; and that tire defendant had agreed to discharge them by a bill.
    The Court left it to the discretion of the jury to give interest or not, and they, having rendered a verdict for the plaintiffs, for debt and interest; the defendant took a writ of error.
    Hopkins, for Plaintiff in error
    cited in argument the following authorities: — Chit. Con. 195 — 2 New R. 205, — 12 East 419, — 15 East 229, — 5 Espin. R. 114-, — 3 Camp. 259, — 2 Stark. Ev. 787, — 5 Comen , 587, — 2 WendeUR. 501, — 9 Barn. & Cres. 37.
    Ormond, contra.

   By Mr. Justice Hitchcock:

■ This was an action of assumpsit by the defendants in ei’ror against the plain tiffs for goods, wares and pier-chandise sold and delivered: the declaration contains the usual- common counts, to which the' defendant pleaded non assumpsit.

At the trial below, the plaintiffs proved the correct-, ness of four several accounts, ending on the first of' January 1829, 1830,1831 and 1832, in each year, for goods.sold and delivered to the defendant in each of the preceding years, and also proved that by an understanding with the defendant, each of the accounts was due on the first day of January next after the year in which the accounts were made: that the accounts for 1828 and 1829,- were placed in the defendants hands in the spring of 1830,, and that for 1830, in the spring of 1831; that soon after the account for 1831 was due, an attempt was made to collect them, when the defendant objected to pay interest upon any of them, It was finally agreed between them, that no interest should he charged for 1831, if the defen,-dant would pay the interest on the other three, by a bill on New Orleans, which he promised to draw in some short timo. The defendant -failed to draw the bill as he had promised, and this suit was brought.

The defendant moved the Court to instruct the jury, that the plaintiffs' were not entitled to interest on the accounts; which instruction the Court refused to give, but instructed the jury that they might in their discretion allow the plaintiffs interest on each of the accounts, from the time the evidence showed they became due, or refuse it: to this instruction, exception is taken, and the case has been brought here by writ of error; -and the above, instruction, of the Court is as-^ ¡signed for error.

There is great contrariety on the subject of allowing interest, both in England and in this co untry; and the decisions cannot be reconciled as a general rule, It is laid down, that interest is recoverable, in addition to the principal sum, upon an express promise, or where a contract may be implied from circumstances, but not otherwise; such as the particular mode of dealing adopted by the parties, or the usage of trade, in which they dealt.

In the case of Slack vs. Lowell, Chief Justice Mansfield said, that he could never reconcile it to reason that a man who delays payment of money which he owes, should not pay interest for it; but certainly that is not the law, nor therefore understand, why interest should not be paid for goods sold and not paid for, and in that case the court refused to set aside a verdict where interest had been allowed on a sale of goods, which were to be paid for by bills, although there was only a count for goods sold, and no count for not furnishing the bills.

In the case of Gordon vs. Swan, interest was allowed as part of the estimated value of the goods up on the common counts for goods sold. In the case of Blaney vs. Hendrick, interest was allowed on an account stated, from the day on which it was stated ; but it was decided that no interest could be recovered in respect of money owing for goods sold and delivered.

In the case of Mountford vs. Willes, interest was allowed for goods sold and delivered, a time being limited by the agreement, which was in writing, for the payment.

In the case of Calton v. Bragg, Bayley Justice, held that as interest was not by law due for mony lent, to be repaid either on demand, or at a given time, it followed that interest was not due for money payable at a certain time after an event.

In the case of Marshall vs. Poole, it was held that interest, subsequent to the day of payment, might be considered as part of the stipulated price of the goods.

In the case of Eddowes vs. Hopkins, Lord Mansfield held, that in cases of long delay and under vexatious and oppressive circumstances, juries, in their discretion might allow interest.

Many more cases might be cited to shew, that there is no settled rule applicable to all cases : in some cases it has been allowed as incident to the contract, in others, as a breach of the contract, or as consequential damage. It is a rule founded in justice, that when a man has been kept out of his money, he should be allowed a reasonable compensation for its use: upon this principle it is, no doubt, that the Courts in this State have allowed juries, in actions of assumpsit, on the common counts, for goods sold, when no period of credit was proved, to give interest from the date of the writ.

In the case before us, the time for payment was fixed; the creditor had a 'right to expect payment at the expiration of that time. The sums actually due were not, it is true, ascertained and assented'to by the defendant on the daj^s they respectively fell due; but the accounts were presented afterwards, and no objections were made to them. From the- nature of the case, the precise amount of the debt to be due on the' first of Jánuary in each year could not be ascertained when the contract was made. The defendant wishing to purchase goods, from time to time during the year, stipulates for a credit to the first of January in each year, and agrees to pay, at that time, what shall then be (hie. If he delays payment, he is liable to he suet I, and when the amount is proved, can it he “reconciled to reason” that he should not pay interest for the detention of the plaintiffs debt: if so, the defendant can avoid interest by refusing to acknowledge the account. The defendant did here, however, acknowledge these accounts and promised to pay interest on three of them by giving a bill on New Orleans. But it is contended that interest- cannot he recovered, because tne action is not brought for a breach of that promise.

.The original contract was not extinguished by that promise; the delay of payment was a damage to the plaintiffs: the rate which the law has allowed for the use of money, was the proper measure of damage for this delay, and whether it be viewed as originating immediately in the contract, or be taken as due for a breach of it, or as growing out of the promise, we see no reason why it should not be allowed on the common counts.

We therefore think the Court did not err in leaving it to the discretion of the jury whether to give interest or not.

Let the judgment be affirmed.

Mr. Justice Thornton not sittings

       2 Starkie, 419.

       3Taunton,

       12 East, 419.

       3 Wils. 205.

       2 B & P.337.

       15 East, 224.

       13 East, 98.

       Douglas, 376.