text:
      BOTTS vs. ARMSTRONG.
    1. la proceedings before a magistrate, of forcible entry and de-tainer, force is the gist of the action:
    2. And taking possession of the premises of another, and sending ; off his slaves, will, under the statute, amount to the force ne* cessary to maintain this proceeding.
    3. Though taking peaceable possession oí the premises of aho‘-ther, under color of title, will not authorise the action of forcible entry and detainer.
    4. Where the consideration oí the evidence, shewing the circumstances connected with the entry of defendant upon the premises, is taken from the jury, by the charge óf the cóürtj the' case will be remanded.
    5. A peaceable entry may be converted into an unlawful detain-er, if possession is unlawfully withheld from the person enth tied to possession.
    Error to the Circuit court of Mobile.
    Forcible entry and detainer, tried-before Judge Harris

    This case was brought up to the Circuit court, by cer-tiorari, from a justice of the peace. Plaintiff below complained before the justice, of forcible entry and detainer, against the defendant. Ilotts, and one Jordan, against whom the case was discontinued, as it appeared the summons had not been served on him. Plea, not guilty. Verdict, guilty — and judgment accordingly.
    The errors assigned in the Circuit court, were—
    1. That the court below refused. to quash the complaint and proceedings of the plaintiff in the cause as requested.

      2. The court erred in proceeding against the defendant, Botts, after the plaintiff had discontinued his suit against the defendant, Jordan.
    3. The court erred in rejecting as evidence, a certain power of attorney, made by Crocket and wife, when offered, as shewn by the record.
    4- The court erred in rejecting the witness, Jordan, when offered by the defendant below.
    5. The court below erred in the several instructions given to the jury, as shewn by the record.
    The Circuit court affirmed the judgment, and the same assignment of errors was presented to this court.
    Thornton, for the plaintiff in error.

      Campbell, contra.

      Thornton, for the plaintiff in error,
    said he did not insist on the reversal of this cause, for all the grounds assigned in the court below: He was inclined to think, as to the first, that the interest of tenant at will, was sufficient to maintain the action, though perhaps it should, have stated at whose will he was tenant.

    As to the discontinuance of the action against Jordan, on whom the summons was not served, perhaps the case was embraced by the rule which authorised a discontinuance at any time, against any one defendant, in an action ex delicto, Spc. He relied with the utmost confidence on the fifth ground, viz. the instructions of the justice to the jury — particularly, because he charged, that an entry upon the possession of plaintiff below, subjected the defendant to the action, if that entry was made without the consent of defendant. Entry by B upon the possession of A, if made peaceably, though without A’s consent, is not enough to sustain the writ of forcible entry and detainer — he must either have entered forcibly, or have detained forcibly. The force is the gist. As to what constitutes force, see the statuteour statute is unlike the acts in some of the States, as, for example, Kentucky —(See Ky. Dig. vol. 1, 612; Woodfell’s Landlord & Ten. 3 Marsh. 297 — as to forcible detainer. By statute of Ken- ■ tucky, forcible entry may be any entry against the will of possessor — so, 4 Bibb, 389, 192.)
    Campbell, for the defendant in error.
    — An entry upon * te possession of another, with the intention of depriving him of it unlawfully, is sufficient evidence of force, in an action of forcible entry and detainer — (3 Marsh. 344; 4 Bibb, 192, 388.)1 A right to property, without a right to immediate possession, does not authorise such an entry —(1 Porter, 144; 5 Stew. & P. 86.) A tenant at will, may maintain this action — (2 Marsh. 35„- 5 Stew. & P. 86; Minor’s R. 98.)
   ORMOND, J.

— The only error now insisted on, is the charge of the justice of the peace.

The substance of the testimony, as found in the record, is, that the defendant, as the administrator of one Inston, was in the possession of the premises, having some ne-groes there. That in his absence, the plaintiff, who had married one of the .heirs of Inston, entered upon, and took possession of the premises, and also took away the negroes of the defendant, who were there.

The charge of the justice of the peace to the jury, is as follows: T.hat it was their duty to ascertain from the evidence, who was in possession, when Botts and his friends went to the place. If Armstrong was there peaceably, Botts must be found guilty, as charged.

Secondly — Who is now in possession ? If Botts, or his agent, how did he get there ? If they went there in the absence of Armstrong, and entered upon the possession without his consent, they are guilty, as- charged. If they were there under color of title, no matter how good, they are guilty. That if Armstrong was in possession, and Botts entered upon the premises without the consent of Armstrong, first had and obtained, either in writing or verbally, and in his absence, that this was sufficient to entitle the plaintiff to recover in this action. That the defendant, though he might claim under the heirs of Inston, had no right to take the possession without the leaye or consent of Armstrong — that the law does not allow a man to wrest even his own property from another possessor, by force.

To support this charge, it is. necessary to maintain, j,hat the taking peaceable possession of the premises of another, under color of title, will support this action. This is a position which the statute will not sustain.

The first section of the act on which this proceeding's founded, declares “that no person shall enter upon any lands, tenements, &c. and detain or hold the same, but where entry is given by law, and then only in a peaceable manner.

The second section describes what shall constitute the fqrce which will maintain this action, and declares that the carrying away tlio goods of the parly in possession, shall he evidence of force within the meaning of the act.

The proof before the justice of the peace was, that the defendant below took possession of the premises, and carried or sent away the negroes of the plaintiff below, who were there. This was such force, as under the sta* tute would maintain the action, if the jury believed the testimony. But they were prevented from considering it, by the charge of the justice of the peace, several times repeated, that if Bolts entered on the premises without the consent of Armstrong, that Armstrong was entitled to recover; thus leaving entirely out of view, the force which constitutes the very gist of the action.

It is true, that at the close of the opinion, he says “that the law docs not allow a man to wrest from another possessor, even his own estate, by force.” But this cannot be considered a charge upon the testimony, but is rather a statement of the law, to sustain the charge before given on the evidence.

It is not for this court to say whether the jury would have given credence to the testimony or not, it is sufficient, that under-the charge, it was entirely unnecessary for them to consider the only testimony in- the cause, which was evidence of force, via. the taking or carrying-off the defendant’s negroes from the premises, and by proof of which alone, the right to maintain this action could be supported.

The cases cited from the Kentucky Reports, are not applicable to this case. The statute of forcible entry and detainer of that State, contains this clause: “The forcible entry intended by this act is, and shall he, any entry with or without multitude of people, against the will or without the consent of the person or persons having the possession in fact, of the premises into which such entry shall be made.” The question of force, therefore, under this act, would be entirely unimportant, as every entry without the consent or against the will of the person in possession, is declared to be a forcible entry.

But by the statute of this State, to constitute a forcible entry, force is absolutely necessary; and the second section of the law enumerates the different acts which shall constitute the force, and without proof of which, the action for a forcible entry cannot be maintained.

By the third section, it is provided that no one who enters peaceably into the possession of lands, shall after wards hold the same unlawfully, and with force, <fcc. Under this section, a peaceable entry into lands, will be converted into an unlawful detainer, if possession is unlawfully withheld from the person entitled to the possession.

This clause does not apply to the case at bar, which is for a forcible entry, and is only mentioned here to prevent any conclusion from, being drawn, that the decision here made would apply to cases of forcible detainer, under the third section.

The judgment of the Circuit court is reversed, and the cause remanded, that the Circuit court may remand it to the justice of the peace, with directions to issue a venire facias de novo.


source: Caselaw Access Project

author: GOLDTH WAITE, J.

license: Public Domain

text:
    HALSTED vs. RABB.
    1. Where one was employed as clerk or agent to take charge oí a mercantile establishment of complainant, who at stiridry times furnished invoices of goods, and refused to render an account of sales or of moneys received — the jurisdiction of chancery is undoubted.
    2. In agencies, including only a single transaction, such as a consignment of goods, or the delivery of money, to be laid out in the purchase of a particular thing, or to be paid over to a third person, — a suit at law is maintainable, and if a discovery were not desired, such a case would probably be only cognizable all law.
    Error to the Circuit court of Conecuh, exercising Chain-eery jurisdiction.
    Bill for discovery. — The hill was on motion of the defendant, dismissed for want of equity; and the plaintiff' in error assigned:
    1. That the court below' erred in dismissing the hill for want of equity.
    2. In rendering a plea against complainant for the* costs.

      Parsons, for plaintiff in error.

      Porter, contra.
   GOLDTH WAITE, J.

— The decree of the Circuit court,dismissing the complainant’s hill for want of equity, can-not he supported. On looking into it, we find it diseases that the defendant was employed as a clerk or agent to take charge of a mercantile establishment, for the benefit of the complainant, who at sundry times furnished invoices of goods, to a considerable amount in value. It alleges that these were sold by the defendant, and have not been fully accounted for by him. That moneys have been deceived in the business, and not entered on the books, or otherwise accounted for; and charges many other matters which are deemed essential to a complete discovery and settlement of a matter of complicated agency.

It wotild be difficult to conceive of a matter of account cognizable in equity, if the facts stated in the bill will hot authorise the interference of a court of. chancery, and support its jurisdiction.

It will not be necessary to refer to individual cases to sustain the jurisdiction, although they are numerous'and concurrent; but the rules applicable to cases of this description, may be stated from an elementary author of approved authority: “ The most important agencies of this sort, which fall within the cognizance of courts of equity, are those of attornies, factors, bailiffs, consignees, receivers and stewards. In most agencies of this sort, there are mutual accounts between the parties, or if the account is on one side, as the relation naturally gives rise to great personal confidence between the parties, it rarely happens that the principal is able, in cases of controversy, to ascertain his rights, or to ascertain the true state of the accounts, without recourse to a discovery from the agent. Indeed, in casess of factorage and consignments, and general receipts and disbursements of money by receivers and stewards, it can scarcely be possible, if the relation has long subsisted, that very intricate and perplexing accounts should not have arisen, where, independent of a discovery, the remedy of the principal would be entirely nugatory, or grossly defective. It would be rare, it specific sales and purchases, and the charges growing out of them, could be ascertained, and traced out with any reasonable certainty; and still more rare, that every receipt and disbursement could be,verified by direct and positive evidence” — (1 Story’s Equity, 443.)

The bill charges, that the defendant was entrusted with the entire management of the business for about two years. It cannot be supposed, that the complainant could, by the use of any means in his power, trace out and identify all the sales and receipts which must have taken place during this period, and to deny him the aid of a court of equity in taking this account, is to deny him relief in any tribunal. In agencies of a'single transaction, such as a single consignment, or the delivery of money, to be laid out in the purchase of any particular thing, or to be paid over to a third person, a suit at law would be maintainable, and if a ground for equitable jurisdiction was not laid, by reason of a discovery being wanted, it is perhaps the better opinion, that such a case would be cognizable alone at law—(Porter vs. Spencer 2 Johns. Chan. R. 171.)

In the present case, the complication of accounts incident to the transaction of business of the description stated in the bill, combined with the relationship of agency, is sufficient to support the jurisdiction of a court of equity.

Let the judgment be reversed, and the case remanded for further proceedings.


author: GOLDTHWAITE, J.

text:
    PATTERSON, et al. vs. COOK.
    1. There is no rule which allows this court to dispense with the examination of a case, because the amount involved is small.

      2. An appellate court, can only learn from the record, what the verdict below was; and the entry of what may be the true finding, cannot control or diminish the force of that which is stated in the record.
    3. Yerdicts informally returned may be corrected at the time, at the instance of the party injured, or if returned in consequence of instructions of the court — a bill of exceptions may be entered, and the decision thus examined.
    4. If the jury mistake the law, a motion to set aside the verdict, and for a new trial, is the remedy.
    5. It is sufficient if the verdict respond to the issue framed: it is not necessary to pursue the very words.
    6. If the point in issue can be ascertained by the verdict, it is the duty of the court to mould it into proper form.
    Error to the Circuit court of Wilcox.
    Assumpsit on a promissory note. ■
    The action, in this case, was brought in the County court, where judgment was rendered for defendants, on a plea of off-set, for one dollar and four cents. To reverse the judgment, the case was then taken, by writ of error, to the Circuit court, where the judgment was reversed, and the cause remanded to the County court.
    A writ of error was then sued out returnable to this court, and the plaintiffs in error assigned the reversal as error.

      J. B. Clarke, for plaintiffs in error.

      Phillips, contra.

      Clarke, for plaintiffs in error,
    stated that the transcript of a verdict different from that inserted in the judgment, was sent up from the County court, and the questions presented were:
    1. Whether the court could consider the verdict so inserted, as any part of the record.
    2. If not, whether the verdict so inserted in the judgment was sufficiently certain.
    He contended that the verdict, as inserted in the transcript, was no part of the record, and relied on Mecclary vs. Cascaden, Minor’s R. 20; Cunningham vs. Mitchell, 4 Randolph’s R. 189; Root vs. Sherwood, 6 J. R. 69; Cros-well vs. Byrne, 9 lb. 287; 2 Dunlap’s Prac. 651, 666. And that the court must look to the issues and the verdict as inserted in the judgment — (Pledger vs. Glover, 2 Porter’s R. 174.) That the verdict was responsive to the issues, and sufficiently certain. No verdict is perfect until it is recorded, and made public. A verdict must be enrolled before it becomes part of the record.
   GOLDTHWAITE, J.

— -The defendant in error, in this court, commenced his action in the County court of Wilcox county, against the plaintiffs in error, who pleaded the general issue and a set-off. The issues were submitted to a jury, who returned a verdict, which is thus entered in the minutes of the court: “upon their oaths do say, they find a verdict for the defendants, and assess their' damages at one dollar and four cents.” On this ■ verdict, a judgment was rendered against the then plaintiff. for the sum so found, in favor of the then defendants. A writ of error was sued out to the Circuit court by the plaintiff in the action, alnd on assignment of error, the judgment was reversed. To reverse this, the original defendants here prosecute their writ of error.

It is much to be regretted, that so insignificant a sum should be the cause of so much litigation and expense to parties; but we know of no rule which allows us to dispense with the examination of a case, because the amount involved may be small. Parties are entitled to the considerate judgment of all courts, without regard to the sum in dispute; and principle may be as dear to him who is struggling against a demand for one dollar, which he supposes the law ought not to compel him to pay, as to another who is condemned in thousands.

For the plaintiffs in error, it is contended that the verdict of the jury, as it was actually returned by them, and which is certified with the record, shews that this balance was a sum due from another individual, to whom the note sued on was given, and that the plaintiff in the action ought not to be compelled to pay his debts, even if the law allows the note which he has become the lawful possessor of, to be offsetted in his hands.

Whatever may have been the verdict of the jury, we can only learn it, as an appellate court, from the language used in the record of that judgment which we are called on to correct; and the entry of that which may be the true finding, cannot control or diminish the force of that which is stated, in the record.

If the verdict was returned in the form which is supposed, it could have been corrected at the time, at the instance of the party supposing himself injured by it, or'if returned in consequence of any instructions from the court, he could have tendered his bill of exceptions, and thus have secured to himself the means of examining the decision. Or if the verdict was the result of a mistake of the law by the jury, a motion to set aside the verdict and for a new trial, would in all probability have induced a correction of the supposed error.

As the case is presented, it must be examined in the terms of the verdict of record. It cannot be supposed that the legislature intended that a jury would ever pursue the identical words of the act authorising them to return a verdict in favor of a defendant, when he insisted by plea on a set-off—(Dig. 281.) It is sufficient if the verdict responds to the issue formed, and it is not necessary to pursue the very words: such has been the uniform course of practice in this court. If the point in issue can be ascertained by the verdict, it is the duty of the court to mould it into proper form. j\To one can infer from the terms of this finding, on the particular issues submitted, any other matter than that the plaintiff in the court below was indebted to the defendants, in the sum ascertained by them, over and above the sum by him demanded. If it was contrary to the fact, the plaintiff to the action could have corrected it more to his satisfaction in the County court, than by suing out his writ of error. If, in accordance with the fact, the verdict was warranted by law, and ought not to have been set aside — in either case, he is without remedy in this, as an appellate court. The judgment of the Circuit court is reversed, and that of the County court affirmed.


author: ORMOND, J.

text:
    M'KENZIE vs. M'RAE, adm'r.
    1. If the evidence offered in a case, does not conduce or tend to prove the facts in issue, a motion should be made to exclude it from the consideration of the jury: but when the evidence tends to prove the issue, though not conclusive, such a motion cannot prevail.

      2. Where evidence is circumstantial, and not conclusive, the jury are sole judges of the effect of the testimony, and are alone capable of deducing inferences from it.
    3. Where one obtains a note surreptitiously, and disposes of it to a party cognizant of the fact, — such party cannot recover on the note,
    4. Where one practices a cheat on another, in the transfer of a note, surreptitiously obtained, the party injured may recover back the consideration paid for the note.
    Error to the Circuit court of Barbour county.
    Trover for a promissory note, tried before Judge Short-ridge.

    Defendant plead, not guilty. Judgment for plaintiff.
    Plaintiff in error assigned the charge of the court below, as contained in a bill of exceptions taken at the trial. Reference being fully made to the hill of exceptions, in the decision of the court, it is therefore unnecessary to set it forth at length here.
    Porter, for the plaintiff in error.
   ORMOND, J.

— The action was trover for a promissory note, brought by the defendant in error, against the plaintiff. On the trial, a bill of exceptions was tendered by the plaintiff in error, from which it appears that the note was made by one William M’Rae, to the defendant’s intestate, or bearer. The evidence, as to the manner in which the plaintiff in error acquired the note, and as to his knowledge, that Alexander D. McRae, from whom he acquired it, had no title in the note, was circumstantials The court charged the jury, in substance, that if they inferred from the testimony, that the note sued for was the property of defendant’s intestate, and that Alexander D, McRae had no title in it or right to dispose of it, but had surreptitiously obtained it, and that these facts Were known to the plaintiff in error, that plaintiff’s title was no better than his, and that they must find for the defendant in error.

The counsel for the plaintiff in error then moved the court to instruct the jury, that a note payable to bearer,, (which was the fact in this case,) may be transferred by the bearer, though he may have acquired possession by finding, fraud or felony, and if the transaction on the part of the purchaser be bona fide and without notice, he acquires a good title. The court thereupon charged? that although in some cases a note payable to bearer, might be. transferred by one having no title other than possession, and differed perhaps in this from a note payable to order — yet so far as this case was concerned, the law as to both was the same, provided the purchaser had notice of its being surreptitiously obtained by the person selling it. And if the transfer was before letters of administration had been granted, and Alexander D. was not such administrator, defendant below must have known that Alexander D. had no right to transfer the note in question, if he got possession of it after the death of intestate, and that fact was known to him.

The court, at the instance of the plaintiff below, also charged, that if Alexander D. had practiced a cheat on defendant in the transfer, that he could recover hack the consideration paid for the note.

We can see no error in either of the charges given by the court. The jury are the exclusive judges of the effect of testimony; if it he circumstantial, as in this case they alone can deduce inferences from it. If the evidence offered did not conduce or tend to prove the facts in issue, a motion should have been made to exclude it from the consideration of the jury. No such motion was made, and could not have prevailed, had it been made, as the evidence, though not conclusive, tended to prove the issue.

The charge asked for by the defendant below was in fact given, though with more circumlocution than was necessary. The jury were expressly told that the right of the plaintiff below to recover, depended on the fact, that the person from whom the defendant purchased the note, had surreptitiously obtained it, and that the defendant knew these facts: in such case, it is clear he would not be a bona fide purchaser, and therefore fell within the principle admitted in the charge asked for.

No question is raised here as to the influence which the act of eighteen hundred and thirty-three, (Aik. Dig. 330, sec. 18,) on the subject of notes payable to bearer, might exert in cases like the present, and therefore no opinion in relation thereto is expressed.

The last charge given by the court is entirely correct. 'Let the judgment of the court below be affirmed.


author: COLLIER, C. J.

text:
    LAMB, trustee, vs. WRAGG and STEWART.
    1. Where property is given or bequeathed to a married woman, without any qua'ification of the manner in which it is to be possessed or enjoyed, it vests, subject to the ordinary legal and marital rights of the husband.
    2. But if it appear from the deed, or other instrument which transfers the property, that it was the intention of the donor or testator, that the wife should have an estate therein to her own separate use and disposa1, such intention shall take effect, if it be fairly and clearly expressed.
    3. The law favors the marital rights of the husband, and will not consider them to be interfered with, by any disposition of property made for the wife’s benefit, unless there is a clear exclusion of his interest- and control.
    4. Where the terms employed by the donor or testator, in a gift or bequest to an unmarried woman, are, that the property shall be “ at her own dispof a',’’ or, “ for her sole and separate use,” the property will vest absolnte’y in her as the owner, and it will be subject, upon marriage, to the marital rights of the husband.
    5. Much stronger terms are required to indicate the intention of' a donor or testator, to continue a distinct estate in an unmarried woman, after she sha'l come under the protection and control of the husband, than in the case of a gift or bequest to a married woman.
    6. Where there is no indication of an intention in the deed of gift of slaves, of a father to his son-in-law, in trust, for his daughter, that she is to have the slaves at her own disposal, or for her own use, and as her separate property; and no terms to inhibit the husband from disposing of the slaves against the consent of the wife, — the husband must bo taken to have acquired an estate for the life of his wife in the slaves, untrammeled by any right of the wife to dispose of them; and the interposition of a trustee, or the fact of the daughter being married at the time of the gift, can make no difference.
    7. And where a life estate only is vested in the daughter, with the fee to her children — the children, if there be any, may have recourse to a court of equity, even during the life of the mother, to prevent the removal of the slaves, so as to putin jeopardy their eventual interest.
    Error to the Circuit court of Montgomery.
    Trial of the right of property, before Judge Pickens.

    Defendants in error levied an execution upon sundry slaves, as the property of the defendant in the execution, which were claimed by plaintiff in error, as trustee for the wife of the defendant in the execution. Judgment was rendered against the plaintiff in error, who brought the case to this court for reyiew.
    On the trial of the case, plaintiffs in execution proved that the property levied on had been in the possession of John J. Lide, the defendant in the execution, and that he had controlled the same. The claimant of the property then produced two deeds, A and B, and proved that John J. Lide had resigned his trust, and that claimant had been appointed trustee to carry into effect the objects of the . deeds. Evidence was offered by the claimant, for the purpose of shewing that Alexander Lamb was the owner of the negroes, previous to the execution of the deeds: that John J. Lide brought from South Carolina, in eighteen hundred and twenty-six, those mentioned in the first deed: — those mentioned in the last deed had been in possession of Lide for about five years prior to the trial : That there was no concealment in the neighborhood, on the part of the family, of the title under which the property was held, and that the deeds were recorded in Montgomery county, in September, eighteen hundred and thirty-two. The debt of the plaintiffs in the execution was contracted prior to the record of the deed.
    Claimant moved the court to charge the jury, that if they believed the negroes were the property of Lamb, at the time of the execution of the deeds, and that he had executed them in good faith — they were sufficient to create a separate estate in the wife; and that the negroes were not liable to payment of the husband’s debts. This charge the court refused; and charged the jury, that if the negroes were the property of Lamb, and were conveyed by him in good faith, and Lide entered in possession under the deeds — yet if they had been in his possession for the term of twelve months in this State, and the debts were contracted here, and the deeds were not recorded according to law, — they were subject to the payment of the debts, unless the creditors had notice of the contents of the deeds.
    Claimant then moved the court to charge the jury, that if they believed the negroes were in possession of Lide as trustee merely, and that his wife actually enjoyed the benefits provided in the deeds, the property was not liable — which the court also declined. The refusal of the court to charge as desired, was assigned as error.
    The deeds, A and B, were similar — deed A was as follows:

      “Know all men by these presents, that I, Alexander Lamb, &c. in consideration of the love and affection, which I bear to my daughter Mary Jane Lide, and of one dollar to me paid, the receipt of which is acknowledged, have sold, bargained and delivered, and do hereby bargain, sell and deliver, unto John J. Lide, in trust for my said daughter, for and during the term of her natural life, four slaves, to wit, Beriah, &c., and their increase— and after the death of the said Mary Jane, Í give the said negroes and their increase, to such child and children of the said Mary Jane, by the said Lide, as may be living at the death of the said Mary Jane. And I do nominate and appoint John J. Lide, sole trustee, to hold said ne-groes, and to execute the trust herein-before reposed. To have and to hold the said negroes to the said John, for the purposes herein-before enumerated, to his executors, or administrators and assigns. In witness,” &c.

      Campbell, for plaintiff in error.

      Campbell, for plaintiff,
    contended that the deeds disclose a clear intention on the part of the grantor, that the beneficial use of the property should be enjoyed by the wife separately from her husband — He is made trustee, which excludes the idea of an usufructuary interest in him.
    The term of “the natural life” of the wife, is the period during which his office of trustee is to be exercised, and the period in which such an office is necessary to guard the interests of the wife. Natural love and affection for the daughter of the grantor, is the consideration on which the deed is founded; and the children of the daughter of the grantor, are the objects of his bounty upon the termination of the life estate of the daughter. jNo interest is left in the trustee, except-during'the life of his wife, and the interest, is to be held “in trust for the wife” — (3 Bro. Ch. R. 383; Johnes vs. Lockhart, 6 Con. Eng. Ch. R. 44S; 2Atk. 558; 3 lb. 399; 4 Dess. 458; 2 S. & R. 275; 5 Vesey, 517, 545; 3 Rand. 373; 2 P. W. 316.)
    Upon-the second question presented by the bill of exceptions, he contended —
    That none of the statutes of this state require a deed of trust of personal property, when possession is transferred, to be recorded. That those deeds which are rendered void for want of registration in favor of creditors and purchasers, are still good between the parlies — That the creditors and purchasers referred to in those statutes, are creditors and purchasers of the grantor of the deed, and not of any third person who may be in possession of the property — That the term “deeds of trust” in the statute, referred to in the opinion of the Circuit court, means a deed of trust for the payment of debts, and is intended to settle the priority between creditors — and is not applicable to trust deeds in favor of married women, when possession is delivered to the trustee or her husband — (5 Rand. 211; 5 Cranch, 154; 5 Stew. & Por. 142; 7 Peters, 348 ; 6 lb. 124; 1 Stew. Por. 262.)
   COLLIER, C. J.

— The bill of exceptions, in this case, raises one question, touching Which, if our opinion be favorable to the defendants in error, we need not look farther into the points raised at the trial. That question is this: Does a deed of gift, made by a father to a son-in-law, in trust for his wife,.(the daughter,) for and during the term of her natural life, and after her death, to such child or children of their marriage, as may then he living, vest a separate estate in the wife and daughter for life?

It may be laid down as a general rule, where property is given or bequeathed to a married woman, without any qualification of the manner in which it is to be possessed or enjoyed, that it will vest subject to the ordinary legal and marital rights of the husband. But if it appear from the deed, or other instrument which transfers the property, that it was the intention of the donor or testator, that the wife should have an estate therein to her own separate use and disposal, such intention shall take effect, if it be fairly and clearly expressed. What terms are necessary to speak such an intention, it is not always easy to determine. The books contain some cases marked by nice distinctions, and the decisions even of the same court upon this subject, have not, in every instance, maintained uniformity.

In Hartley vs. Hurle, (5 Vesey, jr. 544,) the Master of Rolls decided that a bequest in trust, to pay the annual produce of a fund created by the testator, into the proper hands of a married woman, was a bequest to her separate use. But in Tyler vs. Lake, (6 Cond. Eng. Ch. R. 450,) it appeared that lands were settled upon trust, after the death of the settler, to sell the same and distribute the proceeds among all the settler’s children nomi-natim: and as to the shares of two who were married women, the trustees were directed to pay the same “into their own proper and respective hands, to and for their own use and benefithut in case they should be then dead, to pay their shares to their respective husbands, for their own use and benefit. The Lord Chancellor, in delivering his opinion, remarks: “Neither do I think that the direction which is superadded, ‘to pay the shares into their own proper hands/ either taken singly or in connection with the rest of the clause, is sufficient to create a separate estate in the wife. The only authority cited for such a proposition, is Hartley vs. Hurle, which was a case under peculiar circumstances, and in which that was not the point principally considered.”

In Lumb vs. Milnes, (5 Vesey, jr. 521,) the Master of the Rolls considered that the mere fact of vesting the estate in trustees for the benefit of the wife, did not create a sole and separate interest in the wife, and he assumed that no case had ever gone the length of so deciding. And in Kensington vs. Dollond, (7 Cond. Eng. Ch. R. 322,) it appeared that by the marriage settlement of a widow, her property wás assigned to two trustees upon trust, to invest and pay the dividends to her for her life, for her own sole and separate use, and after her decease, upon trust, to pay the fund to a .daughter by her first marriage, (who was then .married) “for her own use and benefit.” The daughter’s husband becoming bankrupt, it was held, that on the death of the tenant, for life, his assignees were entitled to the fund subject to the wife’s equity for a settlement. The Master of the Rolls observed, that “the intention to give a separate estate must be clearly expressed. A gift to a wife for her own use and benefit, does not clearly express such an intention; nor does a gift to a husband for his wife’s own use and benefit, (the husband being one of the trustees of a-settlement) dearly indicate such an intention.”

■ The law seerns rather to favor the marital rights of the husband, and will not consider them to be interfered with, by any disposition of property made for the wife’s benefit, unless there is a clear exclusion of his interest and control-(2 Atk. R. 561; 3 lb. 399.) In Wagstaff vs. Smith, (9 Vesey, jr. 520,) a trust was created by will to permit a married woman to receive the interest or dividends of stock to her own use during her life, independent of her husband. The Master of the Rolls determined, that by the terms of the trust, an absolute and complete life interest passed to the wife — (See also Lumb vs. Milnes, (5 Vesey, jr. 528.) And in Jamison’s ex’or vs. Brady and wife, (6 Serg. & R. Rep. 466,) it was made a question, whether a bequest to a married woman for her oi07i use, conveyed to her an interest for her oicn separate use, and it was adjudged that it did. The court lay great stress upon the intention-of the testator, not alone as it was to be gathered from the will itself, but as it was inferrable £rom extrinsic circumstances. It appeared in proof, that the husband was indebted to the testator: this circumstance is remarked upon by the court, as indicating the testator’s intention to vest a separate estate in the wife; otherwise, his bounty would be of no avail to the wife, but would operate rather as a release of the husband’s indebtedness.

The cases most favorable to the interest of the wife, are decisions of the Court of Chancery of South Carolina. In Judith Barrett vs. Judah Barrett, (4 Dess, 447,) a bill was filed by the wife against the husband, to have the benefit of a deed executed between the parties immediately before marriage, which it was alleged was intended to secure the property of the wife in possession, and in expectation, to her separate use. The clause of the deed relied on by the wife as having that effect, was as follows: “ The said Judith Barrett, being desirous of settling and limiting her property in a particular way, the property described shall be limited to the said Judith Barrett, during her natural life, and to such issue as she may have by the said Judah Barrett; and in case the said Judah shall survive the said Judith, and she should leave no issue, the whole of the property is to descend to the said Judah.” The chancellor who presided on the circuit, held, that this clause vésted in the wife a separate estate, but the Court of Appeals reversed his decree, maintaining the law to require a clear manifestation of intention to divest the marital rights of the husband, before a distinct interest could be set up in the wife. And in Johnson vs. Thompson, (4 Dess. R. 458,) a case which depended upon the construction of a deed of gift, which a father made of certain personal property, to a daughter who was then a married.. woman — Her husband disposed of the property. — The complainants, who were the children of the donee, contended that their grand-father intended to give a separate estate to their mother, not subject to the debts or disposition of. her husband. The Court of Appeals determined, that “the property in dispute being given to the mother of the complainants after marriage, it may be fairly inferred from the words of the deed, that the intention of the father, the donor, was to give to her a separate estate, which her husband had no right to dispose of, in any manner.” What the “words of the deed” were, the report no where informs us, and the learned reporter, in his head note, leaves it very clearly to be inferred, that the fact of the daughter being a married woman at the time of the gift, sufficiently indicated the father’s intention to vest in her an estate to her separate use, yet the decree could not have been influenced by that consideration — if it was. it may at least claim the merit of novelty, while it stands unsupported and insupportable.

A distinction has been often taken between a gift or bequest to a married woman, and a gift or bequest to one who is unmarried, unless it is made in contemplation of an immediate marriage, and with a view to a provision for that event. In the case of the unmarried woman, much stronger terms are required to indicate the intention of the donor or testator to continue a distinct interest in herself, after she shall come under the protection and control of a husband. If the terms employed are, that the property shall be “ at her own disposal,” or “ for her sole and her separate use,” the property would Vest absolutely in her as owner, and upon marriage, would not be holden otherwise than as her other absolute estate; but would be subject to the marital rights of the husband—(2 Story’s Equity, 610, 611, and cases there cited.)

In the case at bar, we have cited quite a number of authorities, not because we have thought it necessary to the understanding of the principle of our opinion, but that the course of judicial decision upon this interesting question should be seen. There is not the slightest indication of intention in either of the deeds of Alexander Lamb, that his daughter should hold the slaves at her own disposal, or for her own use, and as her separate property; nor are there any terms to be found in either of them, which would inhibit the husband from disposing of the slaves, against the consent of the wife. The husband, then, must be taken to have acquired an estate for the life of his wife, in the slaves in controversy, by virtue of the gifts to himself in trust for her, untrammeled by any right of the wife to dispose of them. The interposition of a trustee, or the fact of Mrs. Lide being married at the time of the gifts, we have shown could make no difference, and consequently the slaves are liable to levy and sale to pay the husband’s debts. If there be any children of the marriage of John J. Lide and his wife, a court of equity will be open to their relief, by interposing even during the life of the mother, to prevent a removal of the slaves, so as to put in jeopardy the enjoyment of their eventual interest.

Our conclusion on this question is decisive of the case, and relieves us from considering the other points presented by-the bill of exceptions. The judgment is affirmed.


text:
    GOODMAN vs. MUNKS.
    1. Personal contracts are to'have the same obligation, force, validity and interpretation in every country, which they have in the country where they are made or are to be executed.
    2.°(But thc§jcourts of no county are bound to enforce or hold valid, any contract injurious to its, own rights, or those of its citi-zensj or which offends public morals, or violates public faith.)
    S.^Remedies for the enforcement of contracts, or to obtain compensation for a breach, are to be regulated and pursued according to the lex fori, and not the law of the place where they are made oreare to be executed.
    4. Thehiature, validity, construction and effect of contracts, are to be ascertained by the lex loci contractus, and that law is considered as much a part of the contract, as if it were expressly inserted in it.
    5. Statutes prescribing the time within which courts shall entertain certain actions, relate to the remedy, and a party seeking that remedy, must bring himself within the prescription, as limited by the lex fori.

    6. (A plea of prescription affirmed by a judgment, operates as an answer to the right of action every where.)
    7. The discharge of a contract, or a defence against it, in the place where it is made, is available every where,
    8. The legal obligation of a contract is discharged, whenever the statute of limitations of the place where it was made, has run against it, and nothing remains, but a moral duty, which courts of judicature cannot coerce.
    9. It seems, that if the legal right be gone, the contract is discharged, until it is re-affirmed, or in some manner recognized.
    10. Prescription constituling a bar at the place of the contract, operates as a defence extra territorium — therefore,

      11. Where one made a note in South Caroliua, and remained in that State until the statute of limitations of South Carolina operated as a bar to a recovery on the note, — it was held that the bar created by the law of South Carolina, operated as an available defence to an action brought on the note in this State.
    Error to the Circuit court of Mobile.
    Assumpsit on a promissory note, tried before Pickens, J.
    Plaintiff declared against defendant on a promissory note, to which defendant plead, that the note was made in South Carolina, and that defendant was a citizen of that State, more than four years after cause of action accrued on the note, and that by the law of South Carolina, all 'actions on any writing not a specialty, must be brought in four years, and not afterwards; and further that no action was commenced in that State within four years after the right of action accrued on the note, and that he did not promise within four years next after the right of action accrued, to pay the note.
    To this plea, there was a demurrer and joinder.
    The court sustained the demurrer, and judgment was rendered for plaintiff; to reverse which the writ of error was brought.
    Upon the trial of the cause, the plaintiff gave in evidence anote, of which the following is a copy:
    “Charleston, 31 May, (1825,) eighteen hundred and twenty-five. Four months after date, I promise to pay to the order of J. C. & C. Burckmeyer, seven hundred and nine 55-100 dollars, for value received.
    (Signed,) Duke Goodman, per Att’y,
    James A. Miller.”
    It was further in proof, that the note was executed in Charleston, in the State of South Carolina; and that the interest which such contracts bore in that State, was seven per centum per annum.
    Plaintiff in error assigned:
    That the court erred in sustaining the demurrer to defendant’s plea.
    Camj&ell, for the plaintiff in error.

      Stewart, contra.
   COLLIER, C. J.

— The only question raised in this case is, whether, if persons residing in the same state, enter into a contract, in consideration of which, one stipulates by promissory note, to pay the other a sum of money at a particular day, and the promissor continues his residence within the state, until the statute of limitations of the locus cmitractus shall have operated a bar to a recovery, — can the maker of the note, who has removed to another state, when sued, avail himself of the prescription of the lex loci contractus, or shall the lex fori, in this particular, govern 1

It is well settled, that personal contracts are to have the same obligatory force, validity, and interpretation in every other country, which they have in the country where they are made or are to be executed. This rule is of very early adoption, and recognised in all nations which cherish an enlightened jurisprudence. There is, however, an exception prevailing, coeval and co-extensive with the rule itself, viz — that the courts of no country are bound to enforce or hold valid any contract, which is injurious to its own rights or those of its citizens, or which offends public morals, or violates the public faith.—(Le Roy, et al. vs. Crowninshield, 2 Mason’s R. 151—Pearsall, et al. vs. Wright, et al, 2 Mass. R. 84—Medbury vs. Hopkins, 3 Conn. R. 472 —Ruggles vs. Keeler, 3 Johns. R. 263—Andrews vs. Herriott, 4 Cowen's R. 508, and note 511, and cases there cited.)

It may also be considered an established rule of law, that remedies for the enforcement of contracts, or to obtain compensation for a breach, are to be regulated and pursued according to the lex fori, and not the law of the place where they are made or are to be executed. This rule rests upon clear and intelligible reasoning. Every nation institutes its own courts, prescribes their jurisdiction, and the time and manner of proceeding, with a reference to its own views of justice and propriety — its wants and usages, and the convenience of its citizens. All that international comity can claim under such circumstances is, that foreigners shall be entitled to the same judicial remedies as are afforded to citizens of the country.—(Cases cited above—Decouche vs. Savatier, 3 Johns. Ch. R. 190, 217—4 Cowen’s R. 528, note, had cases there cited.)

In regard to the nature, validity, construction, and effect of contracts, as these are to be ascertained by the lex loci contractus, that law is to be considered as much a part of the contract, as if it were expressly inserted in it.—(Melan vs. The Duke de Fitzjames, 1 Bos. & Pul. 138—Mather & Strong vs. Bush, 16 Johns. R. 233.)

But while these general rules are acknowledged, their application, in the great variety of cases that arise, is often perplexing and difficult. The distinction between construction and right, on the one hand, and remedy on the other, seem occasionally so reñnejf as to run into each other.

That1 statutes, prescribing the time within which courts shall entertain certain actions, or contracts be sued, and Wrongs redressed, relate to the remedy, and consequently, a party seeking that remedy, must bring himself within the prescription as limited by the lex fori, is a proposition which we need not gainsay.—(4 Cowen’s R. 528, cases cited in note.)

While we admit authority thus to have settled the rule, where no statute has attached upon the cause of action, and perfected a bar — for myself, I am free to admit, that if this question were res integra, I should be apt to consider the limitation of the lex loci, as entering into and forming a part of the contract. The maker of a note must be supposed to have in view the prescription of the country where it is made, or to be paid, and to stipulate in reference to it, in the same manner as if it had been inserted in hœc verba—(Nash vs. Tupper, 1 Caine's R. 402—argument for plaintiff, and dissenting opinion of Mr. Justice Livingston.) This, however, is a mere intimation of what my opinion would be, in the absence of prior adjudication : the rule, qualified as we have stated it, rests upon authorities too numerous and respectable to be disregarded — and I acquiesce.

The question, Whether the prescription of the place of the contract having completely run against the plaintiff, and extinguished his remedy there, we think may be considered independent of the influence exerted by statutes of limitation before the bar is perfected. The locus contractus is the place for the performance of a contract, if it contemplate no other, and if its execution cannot there he coerced hy reason of the supineness of the party entitled to its benefit, shall the courts of another country acknowledge its validity ? The statute of South Carolina, so far as we can learn its terms from the plea, does not declare an extinction of the contract, but an extin-guishment of the remedy only; yet we cannot conceive that this should materially influence its legal effect. The distinction between a right and a remedy, is well known in law — the former is dependent upon the stipulations of the parties, or their acts or omissions, while the latter is subject to legislative modification. Though the legislature be necessarily vested with this power, it cannot, under the pretence of modifying, abolish a remedy. A.contract which cannot be enforced, though free from all objection to its validity, has no obligation in law: it is true, that there may be a moral obligation, binding in foro conscientice, but of this, courts of judicature can take no notice, except as furnishing an adequate consideration for a promise, or a sufficient authority to retain money paid on such inoperative contract. It is difficult to distinguish in principle, between a contract which has become extinct by the passiveness of him in whose favor it was made, and one, the remedy on which, lias been lost from the same cause. In the one case, it is as if it had never existed — in the other, the legal obligation being gone, it cannot be coerced, but depends for its performance upon the sense of moral justice of the party originally liable—(2 Mason's S. 168, 169; Sturgis vs. Crowninshield, 4 Wheat. R. 122, et post; Smith vs. Mead, 3 Conn. R. 253; Hammet vs. Anderson, Ib. 304.)

A defendant may or may not, at his ’ election, plead the statute of limitations; yet, if he does, and it is found in his favor, it cannot be successfully urged that the de-fence shall not avail him every where. The plea is in bar, and not in abatement, and a judgment for the defendant would not merely defeat the particular action, but would operate as a perpetual barrier to any other proceeding founded upon the same cause. This point we should consider clear beyond controversy, but for what was said by Chancellor Kent, in Decouche vs. Savetier. In that case, the learned chancellor remarked: “The plea of the statute of limitations does not touch the merits of the contract. It merely bars the remedy in the particular domestic forum, and does not conclude the plaintiff in his own or any other forei|n country. To render the matter of the payment, a res^judicatojf, it is necessary that the grounds of the judgment should be the same — - (Graham vs. Maxwell, 2 Dow. 314.) The reason of the exceptio rei judicata,, is to prevent endless litigation and discordant decisions; and the reason has no application tosuch a plea.”

Mr. Justice Livingston, in Nash vs. Tupper, takes a different view of the point. Speaking of a plea of the ■statute, he says: “The present defence isa perpetual bar to the action, and therefore involves in it the merits, and not a mere question of form.” To the same effect is Mr. Justice Story’s opinion in Le Roy vs. Crowninshield, where, treating of the effect of statutes of limitation, he observes: “If, on the other hand, they are considered as defences or bars, authorised to be made by the debtor, and at his option, they are no otherwise a regulation of judicial proceedings, than any other legal bar set up by the debtor. They authorise a judgment of the court in his favor, as a perpetual bar of any suit. They literally go, therefore, ad litis decisionem.” Let these citations suffice to show that a plea of prescription, affirmed by a judgment, operates as an answer to the right of action every where.

If all remedy is gone, and the obligation of the contract, of consequence, extinct in the place where made, —shall its resuscitation be silently effected by the mere passage by the debtor, of a line which marks the boundaries of distinct governments? We are aware that there are authorities to which we are accustomed to yield a high respect, furnishing an affirmative response to this question. In Bulger vs. Roche, (11 Pick. R. 36,) it was held that the statute of limitations of a foreign country, cannot of itself be pleaded as a bar to an action in Massachusetts. In fact, the court considered it too well settled by its previous decisions, for the point to be again drawn in question, and that the les; loci contractus having operated an extinction of the remedy, would not exclude the prescription of the lex fori. To the same effect is Decouche vs. Savetier, (3 Johns. Ch. R. 319;) Lincoln vs. Battelle, (6 Wend. R. 475;) and Williams vs. Jones, (13 East’s R. 439)—In which latter case Lord Ellenborough said “There was no law or authority for saying, that where there is an extinction of the remedy only in the foreign court, that shall operate by comity as an extinction of the remedy here also.”

This question is considered by Mr. Justice Story, in Le Roy vs. Crowninshield, with his usual research and ability. In his opinion, the learned Judge remarks, that “ payment or extinction, according to the laws of the place of the contract, is payment or extinction of the debt every where.. Why not, then, the presumption of payment or extinction, conclusive every where else, when it would be conclusive at home ? Why should a difference be made between the fact, and that which the law deems conclusive evidence of,the fact? What is there in the principles of national' comity, which forbids us to bind the parties by a rule or a prescription, which the laws of their country have made conclusive between them ? If a foreign prescription may be given in evidence as proof of payment, (as in Scotland,) why may it not be pleaded directly as a positive bar?”

Again: “The statutes of limitation must be pleaded by the debtor, otherwise they are not available in his favor. The defence, in such case, is given to the debtor, against any action after the limited loeriod. When that period is passed, if the parties are still within the State, all right of action is extinguished ; and I can perceive no reason why the right to use that defence, good by his own laws, should not travel with the debtor into every other country. The policy of it is as strong as that of exceptio rei judicata}.' It is to put an end to litigation, and to save persons from continual exposure to stale demands.” And further, in speaking of a debt barred by prescription, the learned judge says, that though there may be a moral duty on the part of the debtor to pay, “there is not, strictly speaking, any right.in the creditor to claim payment, for the law has made the bar, if pleaded, an es-toppel of the right. Such right is technically extinguished ia contemplation of law by the^pfesumption of extinction, until the debtor himself negatives the presumption by some act or omission. , It is plain, therefore, that when the remedy is said to be extinguished by a prescription, and not the right, we are not to understand the term “right” in its technical legal sense, but merely as a moral obligation or claim in natural justice.” , The learned judge then says, that if the question were entirely new, and .he was called on- to settle it upon principle, the inclination of his mind would strongly lead him, among other propositions, to adopt the following, viz. “That where all remedies are barred or discharged by the lex loci contractus, and have operated on the case, there the bar may be pleaded by the debtor in a foreign tribunal, to repel any suit brought to enforce the debt. That where all remedies are barred by the lex loci con-tractus, there is a virtual extinction of the right in that place, which ought to be recognized in every other tribunal, as of equal validity — that if the prescription by the lex loci contractus be longer than that of the lex fori, the latter may be pleaded in bar to a foreign contract, if it applies to foreign contracts; and that this does not on principle suppose, that the foreign prescription may not also be a well founded bar to the suit.” The learned judge, however, considered the question then in judgment, settled, so far as it could be by authorities, v^-lndi the court was bound to respect. It must be observed,-.in that case, the law of the place of the contract had not. completed a bar, before the defendant removed to another State, and though we are informed what was the opinion of the court upon principle, yet as the facts did not render necessary a decision of tlie question now before us, we do not learn whether that question was supposed to be concluded by authority.

In Woodbridge vs. Austin, (2 Tyler’s R. 364,) it was decided, that where a demand is barred by the laws of a foreign country, where the contract was made, it cannot be revived by transferring it to an inhabitant of Vermont. And in Towns' ex'or vs. Bardwell, adm’r, (1 Stew. & Por. 36,) Chief Justice Lipscomb, in delivering the opinion of the court, employs this language: “But in acknowledging the generality of the rule, that the statue of limitations applies to the remedy and not to the right, we wish not to be understood as committing ourselves, to sustain the rule to the full extent that has been claimed for it by some eminent jurists. We in this case only decide, that if the bar has not become perfect, the statute does not affect the right. If, however, the statute had interposed, and perfected a bar to a recovery before the parties removed from the jurisdiction where the contract was entered into, some of us, at least, would pause and hesitate much, before we would set aside that bar and open the remedy to the enforcement of the contract.”

In maintaining a bar, by prescription, to be operative in every country in which the debtor may chance to' be found or remove, we think the harmony of the law is best preserved. It lias been held, that detinue may be maintained upon the mere ground of a previous possession, originally acquired without force or fraud, and enjoyed for a sufficient length of time to make the statute of limitations an available bar. So, it has been decided, that where possession of personal property has been adversely holden in one State, for a period beyond that prescribed by the laws of that State, and after that period has elapsed, the possessor removes into another State, which has a longer period of prescription, or is without any prescription, the original owner cannot successfully assert a title in the latter State against the possessor— (Newby's adm'r vs. Blakey, 3 Hen. & Munf. R. 57; Garth's ex'ors vs. Barksdale, 5 Munf. R. 101; Carter, et al. vs. Carter et al. Ib. 108; Travis vs. Claiborne, Ib. 435; Brent vs. Chapman, 5 Cranch's R. 358; Shelby et al. vs. Guy, 11 Wheat. R. 371; Beckford et al. vs. Wade, 17 Vesey's R. 88; Gregg vs. Bigham, 1 Hill's Rep. 299; Kegler vs. Mills, 2 Mar. & Yerg. R. 174; Partee vs. Padget et al. 4 Yerg. R. 174; Hardeson vs. Hays, 4 Ib. 507; Thompson vs. Caldwell, 3 Litt. R. 136; Stanley vs. Earl, 5 Ib. 281; Cook vs. Wilson's adm'rs, 6 Ib. 437; Orr et al. vs. Pickett, 3 J. J. Marsh. R. 268; Middleton vs. Carroll, 4 J. J. Marsh. R. 143; Smart vs. Baugh, 3 J. J. Marsh. R. 363.) It is indeed difficult to conceive why a statute bar to the recovery of a debt should not be as potent for the debtor, as a similar presciption is for the possessor of personal property. The statutes applying to the latter case do not declare an extinction of title, but like those relating to the former, merely extinguish the right of action. It is, then, difficult in principle, to conceive why, if the lex loci is allowed as a bar in the one case, it should not he held an absolute discharge in the other. Mr. Justice Story, in his Conflict of Laws, intimates very clearly, that the cases are not distinguishable in principle — (page 488.)

The statutes of limitation have sometimes been assimilated to laws, by which the person of an insolvent debtor is freed from a liability to imprisonment, while the obligation of the contract remains in full force against his future acquisitions. The analogy we do not think entirely just — in that case, the discharge does not extinguish every remedy of the creditor, but without pretending to interfere with the contract, it merely deprives him of one, and that the least valuable remedy. This being the case, foreign courts have refused to recognise an extinction of the remedy against the person. We think the question now before us may more aptly be likened to a discharge under the bankrupt laws of á foreign country. In that case, the certificate of the bankrupt is considered as effectual every where, as it is in the country where obtained. The moral obligation to pay (his creditors so much of their demands as remains unpaid, is binding upon the bankrupt in foro .consciente, while the legal right of the creditor is gone—(Potter vs. Brown, 5 East’s R. 129; Hunter vs. Potts, 4 T. R. 182; Bamford vs. Burrell, 2 Bos. & Pul. R. 11; Matson vs. Medex, 1 B. & A. Rep. 121; Harley vs. Greenwood, 5 Ib. 95; 4 Cowen’s R. 514, 515, note.) And as the statute of limitations cannot be given in evidence, so neither can a bankrupt’s certificate of discharge, but it must be pleaded—(Gowland vs. Warren, 1 Camp. R. 363; Steelman vs. Martinnant, 12 East’s R. 664; Harris vs. James, 9 East's R. 82; Joseph vs. Orme, 2 N. Rep. 180.)

It is an undeniable principle of law, that the discharge of a contract, or a defence against it, in the place where it is made, is available every where. Thus, if infancy will avoid a contract by the lex- loci, the same effect will be accorded to it wherever the contract is sued—(Thompson vs. Ketcham, 8 Johns. R. 189; Male vs. Roberts, 3 Esp. R. 163. To the same effect, see Warder vs. Arell, 2 Wash. R. 282, et post; Searight vs. Calbraith, 4 Dall. R. 325; Vermont Bank vs. Porter, 5 Day’s R. 316; Bartsch vs. Atwater, 1 Conn. R. 409; Anon, 1 Br. Ch. R. 376.) And in Blanchard vs. Russell, (13 Mass. R. 1,) the court say, that personal contracts are subject to all the cowse--quences attached to contracts of a similar nature by the laws of the country where they are made, if the contracting party is a subject.or resident in that country where it is entered into, and no provision is introduced to refer it to the laws of any other country. Now, we have already shown that the legal obligation of. a contract is discharged, whenever the statute of limitations of the place where it was made has run against it, and nothing remains but a moral duty, which courts of judicature cannot coerce. If the legal right be gone, it would be more proper to consider the contract as discharged until it is re-affirmed, or in some manner recognised. And prescription constituting a bar at the place of the contract, we think, should,- upon principle, be regarded as a defence, extra Lerritorium.

We incline to the opinion, that direct authority preponderates against the conclusion to which we have attained. But as the precise question now before us, does not appear to have been often considered, either in England or in the States of the Union, we do not consider precedent so overwhelming as to foreclose' our enquiries. Besides, it is worthy of remark, that the more recent adjudications upon the statutes of limitation, are tending to1 unsettle and overrule many of the previous decisions, which had gone far to impair and abrogate the wholesome provisions of well-intended and beneficial laws.

To conclude, we think the plaintiff’s plea, which relied on the statute of South Carolina, the State in which he made the note in suit, and in which he resided until the statute completed the bar, interposed an available de-fence.

The Circuit court consequently erred in sustaining the defendant’s demurrer to that plea', and its judgment must be reversed, and the cause remanded.


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    BATES vs. THE PLANTERS' & MERCHANTS' BANK.
    1. In a summary proceeding on a Bank notice, every thing necessary to give the court jurisdiction and to sustain its judgment, must appear on the record.
    2. And where the record does not shew that the certificate of the President of the Bank was produced and shewn to the court, —it has no jurisdiction, and judgment cannot be rendered,
    3. Such certificate, appended to a notice to defendant attached to the transcript, is no part of the record — no action of the court appearing to have been had on it.
    Error to the Circuit court of Mobile.
    Bank notice, tried before Pickens, J.
    This was a notice issued by the President of the Planters’ and Merchants’ Bank of Mobile, to defendant, as endorser on a note dated June twentieth, eighteen hundred and thirty-seven, for four thousand nine hundred and forty dollars, drawn by H. S. Levert, payable to - defendant or order, sixty days after date, for value received, negotiable and payable at the Planters’ and Merchants’ Bank of Mobile, and which was protested for non-payment; informing defendant that at the next term of the court, the Bank would move against him, for the amount due by the note, with lawful damages and costs, and on the third Monday of the term, would pray the court to render judgment and award execution in favor of the Bank, for the amount of the demand. The notice was accompanied with the certificate of the President, that the note was really and bona fide, the the property of the Bank.

      There was no plea filed, hut the parties appeared, and judgment was rendered for the Bank; to reverse which, the writ of error was taken.
    . The record of the verdict and judgment, was as follows :
    “This day came the parties, and thereupon came a jury, &c. who say they find for the plaintiff's, &c. It is therefore considered by the court, that the plaintiffs recover of .the said defendant, the said sum, &c. together with the costs, by them about their motion in this behalf expended.”

      Campbell, for the plaintiff in error.

      Stewart, contra.
   ORMOND, J.

— This was a summary proceeding, by motion of the Bank, against the plaintiff in error. It is now assigned for error—

1. That the record does not disclose that a motion was made in the court below ;

2. That it does not appear that the certificate of the President of the Bank was produced, showing property in the Bank;

3. That the record does not disclose that the motion was founded on a paper on which a motion could be made.

It appears from the record, that the facts were contested before a jury, though no plea appears in the proceedings, and the judgment was entered on the verdict of a jury.

It is insisted by the counsel for the defendant in error, that all the facts necessary to maintain the proceeding, must be presumed to have been proved.

It has been repeatedly held in this court, that in these summary proceedings, every thing necessary to give the court jurisdiction, and to sustain its judgment, must appear on the record. Thus, in Logwood vs. Huntsville Bank, (Minor’s Rep. 23,) the court say: “It does not appear from any thing in the record, that the notice was so given, unless the court are so to intend, as insisted by the counsel for the Bank, from the words ‘ duly notified,’ in the record. In proceedings, according to the course of the common law, many defects in the record may be cured by the doctrine of intendment. But wherever a summary remedy is given by statute, those who wish to avail themselves of it, must be confined strictly to its provisions, and shall take nothing.by intendment. The supervising court cannot infer, that notice, as required by law, has been given, unless it so appear on the record. Not to require this, would be to surrender to the court below, the power of judging without appeal, of all the proceedings had before it.” The court also apply these remarks to the certificate of the President of the Bank, which the statute requires him to make, to give the court jurisdiction.

The case just cited was a judgment by default; but in the case of Lyon vs. the State Bank, (1 Stewart, 442,) the defendant appeared and pleaded, and on an issue tried, judgment was rendered against him, from which he took a writ of error. In giving their opinion, the court held this language: “The charter authorises the proceeding by motion, on tl.ie noto and certificate, and by necessary implication, dispenses with special pleading, and all technicality. But it requires., by legal construction, in lieu thereof, that the record shall shew every material fact to have been proven, whether the judgment be by default or otherwise.”

It was also held, in the case of Duncan vs. the Tombeckbee Bank, (4 Porter, 181,) that in a proceeding by motion, the filing a declaration would not render the certificate of the President of the Bank unnecessary.

Although it is the well settled law, that in summary proceedings like the present, every thing necessary to give the court jurisdiction, must appear on the record, yet we think if the question were open, it might admit of doubt, whether the rule ought not to be confined to cases of judgment by default; and whether, where the parties appeared, pleaded, and contested the matter, the same rules did not apply in suits prosecuted in the ordinary mode. The decisions have been so long acquiesced in, establishing the contrary doctrine, that we do not feel now authorised to disturb them.

We do not think, however, that any decision heretofore made, applies to the case now before us, in regard to the notice. The object of the notice is to inform the opposite party of the motion to be made against him: if he appear and plead, it must certainly beheld an admission of notice. The same remarks apply to the objection, that no motion was made. The record discloses that an issue was tried : this could not be on any thing but the motion, which must have been made, though it was not formally entered on the record.

But the objection, that the record does not shew that the certificate of the president was produced, must be sustained. It is no where stated'that the certificate of the president was produced and shewn to the court, and without this the court had no jurisdiction. It is true that a paper purporting to be a certificate is found appended to a notice sent up- with the transcript, but that is no part of the record. No action of the court appears ever to have been had upon it, without which it cannot be considered as part of the record.

The judgment of the court be reversed, and the cause remanded.


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    LEVERT vs. THE PLANTERS' & MERCHANTS' BANK.
    1. The charter of the Planters’ and Merchants’ Bank of Mobile,' does not give the right to the Bank, to recover on notes or bills held by them, unless such notes and bills are made negotiable and payable at that particular Bank.

      2. And in such cases, the record must shew that the note or bill on which the remedy is sought, was made payable and negotiable at the Bank.
    3. The notice issued to defendant, and attached to the transcript, is not considered as part of the record, — so as to shew the right of the Bank to recover judgment on motion.
    4. The act of the thirtieth June, eighteen hundred and thirty-seven, gives the remedy, by motion, to the Bank, only on notes and bills, the future acquisition of the Banks.
    5> The remedy by motion, being in derogation of the common lawj cannot be inferred, unless the party claiming the benefit of it, shews affirmatively, that he is entitled to it.
    Error to the Circuit court of Mobile.
    Bank notice, tried before Pickens, J.
    The notice, in this case, was issued on a note dated June twentieth, eighteen hundred and thirty-seven, payable sixty days after date, to Joseph Bates, jr. or order, for four thousand nine hundred and forty dollars, for value received, negotiable and payable at the Planters’ and Merchants’ Bank of Mobile, and endorsed by the payee.
    The notice stated that the note was the property of the Bank — -was past due — was not paid according to the tenor and effect thereof, and was protested for non-payment: and that the Bank would move against defendant* for the amount due by said note, with lawful damages and costs, at the next term of the Circuit court, and on the third Monday of said term, would pray the court to render judgment, and award execution in favor of said Bank for the amount of said demand. To the notice was attached the certificate of the President, that the debt was the bona fide property of the Bank. The notice was served thirty days before court.
    Judgment was rendered against defendant by nil dicit, and the case brought up for revision.
    Plaintiff in error assigned:
    1. That the facts stated in the record do not shew a case in which a judgment could be rendered on motion;
    2. That upon the facts stated in the record, judgment should have been given for the-plaintiff in error in the court below.

      Campbell, for the plaintiff in error,

      Stewart, contra.
   ORMOND, J.

— This was a motion by the defendants in error against the plaintiff in error, for a judgment on a note discounted by the bank.

The judgment was rendered by default, and it is now objected here, that the record does not shew a case in which a judgment could be rendered in favor of the bank,on motion, because it docs not state that the' note was negotiable and payable at that bank.

The charter of the bank provides “ That if any person shall be indebted to said corporation, as maker or endorser of any note, bill or bond, expressly made negotiable and payable at said bank, and shall delay payment thereof, it shall be lawful for said corporation, after having given at least thirty days nótiee thereof, and producing to the' court before whom the motion is made, the certificate of the President of the hank, that the debt is really and bona fide the property of the bank, to move for judgment and award of execution,” &c.

The statement on the record is, that the plaintiff “moved the court for a judgment in this case, for the amount of a promissory note signed by defendant, dated June twentieth, eighteen hundred and thirty-seven, payable sixty days after date, to one Joseph Bates, jr. or order, and by him endorsed for the sum of four thousand nine hundred and forty dollars, which note was discounted at said bank,” &c. There is no other description or proof relating to the note than this, except in the notice attached to the transcript, which cannot be considered as was determined in the case of Bates vs. the Planters’ & Merchants’ Bank, at this term; and according to the principles determined in that case, and the previous decisions of this court, it is not sufficient. The record does not shew that the note! was made payable and negotiable at the planters’ & Merchants’ Bank, and this court cannot intend that it was thus made. If not made negotiable and payable at that particular bank, the charter did not give the right to recover on it by motion.

It is, however, insisted, that, an act passed on the thirtieth of June, eighteen hundred and thirty-seven, covers the case. The act provided, that “if any person shall become indebted to any of said institutions,” (including this bank,) “by bill, bond, note, or other contract, for the payment of money, and shall delay payment thereof, the said banks may sue for and collect the same by summary remedy, as in other cases under the charter of said •banks.”

Giving to this act a just interpretation, it would seem very clear that it contemplated to give this remedy only to the future acquisitions of the banks. It does not appear when the bank acquired property in the note; and it is just as likely to have been before the passage of the act, as afterwards. But the right' of the bank to this summary remedy cannot be maintained by the inference, that it might not have obtained property in the note, until after the thirtieth of June, eighteen hundred and thirty-seven. The note bears date on the twentieth of June, eighteen hundred and thirty-seven, and if acquired before the thirtieth of June, was a debt, though not payable until a future day. The remedy being in derogation of the common law, cannot be enforced; unless the party claiming the benefit of it, shows affirmatively on the record that he is entitled to it.

That not being done in this case, the judgment must be reversed and the cause remanded.


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    INGE vs. THE BRANCH BANK OF MOBILE.
    1. Where Á endorses a bill of exchange in blank, with an understanding that it is to be accepted by B, and this understanding' is communicated to C, who purchases the bill, before the purchase ; and the bill is not accepted by B, but by some other person: — -A, the endorser, is not liable on his endorsement, to C, the holder,
    2. The acceptor of a bill is primarily liable to pay the bill, and the drawer and endorser, if the proper steps are taken to charge them, are liable on the default of the acceptor — but the endorser is liable in no instance to the acceptor, unless in case of an acceptance for the honor of the endorser.
    3. Where a creditor, without the consent of a surety, makes a valid agreement with the principal debtor to prolong the time of payment — the surety will be discharged.
    4. There is no obligation to active diligence on the part of the holder in suing the acceptor, and the holder may forbear the employment of coercive measures as long as he chooses, if he does not agree to give time, so as to suspend his remedy against the acceptor, to the prejudice of the parties who are secondarily liable.

      5. But an agreement between the holder of a bill and the acceptor, that the holder will not look to the acceptor for payment of the bill, until the holder has exhausted, without success, the legal remedies against the ‘endorser, will operate to discharge the endorser.
    Error to the Circuit court of Mobile.
    Bank notice, against the endorser of a bill of exchange, tried before Pickens, X
    Plea, noiv-assumpsil. Verdict and judgment for plaintiffs.
    On the trial of the case, the plaintiffs read in evidence a bill of exchange, of which the following is a copy:

      “Exch: for $10,000. . • -
    “ 1 August, 1836.
    “ Five months after date of this first of exchange, (second of the same tenor and date unpaid,) pay to Wm. R. Hinton, or order, ten thousand dollars, for value received, negotiable and payable at the Branch of the Bank of the State of Alabama at Mobile, and place the same to account. Joel Lipscomb, jun.
    “ To Adams 6p Taylor, Mobile.
    Endorsed on the back—
    “ Wm. R. Hinton,

      “R. Inge,

      u Horner, Blocker éf Co.”

    Written across the face — “Adams Taylor.”

    It was originally a printed bill, with the usual blanks.
    The defendant then proved by J. R. Blocker, one of the firm of Horner, Blocker Co., that he obtained the endorsement of Inge, when the bill was in blank, except as to the drawer and endorsement of Hinton, and that it was understood at the time between himself and Inge, that the bill was to be accepted by the house of Horner, Blocker, Sp Co. On cross-examination, he proved that Inge endorsed the paper to enable the house of Horner, Blocker tip Co. to raise funds, if desired: that there was nothing said by Inge to forbid an acceptance by others, and that the witness had not informed the plaintiffs or other persons, that it was understood by Inge, that Hor-ner, Blocker fy Co. were to accept the bill.
    William J. Blocker, another partner of the house of Horner, Blocker & Co., proved, that he presented the bill to the Bank, to ho discounted foe the benefit of his house, and proposed to accept the bill, which was still in blank, except as stated: that the Baal; was desirous to assist Horner, Blocker & Co., but objected to discount on their acceptance: that the funds would, by their rules, go to the credit of the last endorser, and not to Horner, Blocker & Co., and proposed in order that tbs discount might go to their credit, that some other acceptance should be obtained, to which witness assented, but that Adams & Taylor, or the directors, or some one of them did, was not distinctly proved. On croes-csamination, the witness proved that he did not state to the board, or any one, that it was the understanding of Inge, that Horner, Blocker & Co. were to accept; and that the bill was discounted, and the proceeds passed to the credit of Horner, Blocker & Co.
    It was further proved, that the directors agreed with Adams & Taylor, that in case they accepted the paper, they should not be looked to by the ’Bank, until it should fail to make the money out of the previous parties, and that it was alone on such understanding they did accept.
    It was also proved, that previous to the discount, the fact, that Inge endorsed .with the understanding that Horner, Blocker & Co. were to accept, was spoken of at the board of directors, and discussed by them, but no evidence went to shew, that any party to the bill, or any one, on either of their accounts, interposed any objection to the discount of the bill, or to the acceptance.
    Upon this evidence, the defendant asked the court to charge the jury, that Horner, Blocker & Co. were not responsible to Inge, as acceptors of the bill — which charge the court refused to give: raid charged that if Inge had endorsed at the request of Blocker, and to enable Horner, Blocker & Co. to raise funds, and that they had received the discount on the bill, — this gave Inge as good a claim to recover from them, in case he had the bill to pay, as if Horner, Blocker & Co. had been acceptors.
    Defendant also moved the court to charge the jury, that if the bank knew, before the bill was filled up, and before it was discounted, that Inge endorsed it in blank, to be filled up to the acceptance of Horner, Blocker & Co., and that Inge so understood the bill was to be filled up, at the time of endorsing the same, that then Inge was not responsible to the bank — which charge the court refused to give: but charged that if the bank, acting on the belief, that the endorsement of Inge was made to enable the house of Horner, Blocker & Co. to raise funds, and the acceptance of Adams <fc Taylor was taken to promote this object, and was not received with a view of injuring Inge, and had not done so: — then, although the bank might have been informed that Inge endorsed the bill, to be filled up to the acceptance of Horner, Blocker & Co., it did not present a legal ground against a recovery in the case.
    Defendant also asked the court to charge the jury, that if the bank agreed with Adams not to look to Adams & Taylor, for payment of the bill, until the legal remedies were exhausted against the other parties, and they should fail to make the money out of them — that Inge would not be responsible — which charge the court also refused: and charged, that if to enable the proceeds of the bill to go to the credit of Horner, Blocker & Co., it were proper
      lo obtain another acceptance than theirs, and. it was not with a view to defraud Inge, then it was competent for the bank to stipulate with Adams, that in case he would ■accept, the bank would not look to him, until the legal remedies were exhausted against the other parties, without impairing the right of the bank to recover out of Inge,
    1. The assignments of error were the charges given and refused;
    2. That the record did not shew that defendant had thirty days notice of the matter in the Circuit court;
    -3. Or, that the certificate of the President was produced according to the statute;
    4. Or, that the paper was one upon which a motion could be made.
    Dunn, for plaintiff in error.
    Gayle, contra.
   COLLIER, C. J.

— The view we take of this case makes it unnecessary to consider whether the record discloses the facts essential to the regular exercise of jurisdiction upon notice and motion; besides, the law on this subject may be understood as settled by the decisions of this court—(Duncan vs. Tombeckbee Bank, 4 Porter's R. 181; Bates vs. Planters' and Merchants' Bank, and Lea & Langdon vs. the Branch Bank at Mobile, decided at this term.)

The questions arising upon the bill of exceptions, are:

1. If the plaintiff endorsed the bill in question, with an understanding that it should he accepted by Horner, Blocker & Co., and that understanding was communicated to the directory of the bank, previous to its purchase by the bank, is he liable on his endorsement ?

2. Does the agreement between the directors of the bank, and Messrs. Adams & Taylor, (the acceptors,) that they should not be looked to for the payment of the bill, until the bank had exhausted, without success, the legal remedies against the other parties, operate to the discharge of the plaintiff?

1. The charge of the Circuit judge supposes that the plaintiff, with a view of enabling Messrs. Horner, Blocker & Co. to obtain money, endorsed the bill in suit, while it was blank as to its amount, time of payment and address, and entrusted it to John R. Blocker to perfect it, with the understanding that Horner, Blocker & Co. were to accept it. Taking these to have been the circumstances under which the plaintiff lent his endorsement, his agreement was to be liable as an endorser, if Horner, Blocker & Co. should become acceptors. I-Ie did not undertake for the punctuality of any other persons who might accept the bill, however willing he might have been to do so, had it been thought necessary to enable Messrs. Horner, Blocker & Co. to effect their purpose. But the plaintiff’s liability cannot be ascertained by en-quiring what he was willing to do, but the true question is, what was done by him?

In Powell vs. Waters, (17 Johns. Rep. 176,) the note was made with an expectation that it would be discounted at hank, but it was negotiated to a third person. The endorser resisted a recovery, on the ground that the note was not disposed of, as it was intended — but the court held that the inducement to the defendant’s endorsement was to raise money for an object of which he was aware — that though it was expected to sell the note to the bank, yet there was nothing said or done to induce a belief on the part of the endorser, that if the bank declined purchasing, the note would not be put in circulation. That case bears no analogy to the present— there, it was not understood that the bank was the only source from which the money could be obtained — it was expected to be had there, but if the application was unsuccessful, the note might be negotiated to some one else. In the case at bar, it was understood that Horner, Blocker & Co. were to accept the bill, and if so understood by the plaintiff, it could not be put in circulation without their acceptance, but in violation of his understanding.

It is true, if the understanding between the plaintiff and Horner, Blocker & Co. was unknown to the directory of the bank at the time they discounted the bill, then it would be of no avail, and the plaintiff would be liable upon his endorsement, without reference to the circumstances under which it was obtained. It might, then, have been very well inferred by the bank, that the holder had an authority from the parties to the bill, to fill up all its blanks, and negotiate it in the usual course of business—(Chitty on Bills, 124; Putnam et al. vs. Sullivan et al. 4 Mass. R. 45.) And the plaintiff would also have been liable upon the principle, where one of two innocent persons must suffer from the act of a third person, he who has put it in the power of such third person to do the act, must be the sufferer. But if the bank had either a positive or constructive knowledge that the plaintiff lent his endorsement, under an agreement either expressed or understood, that Horner, Blocker & Co. were to become acceptors, the plaintiff may avail himself of the breach of that agreement, as a defence to a recovery against him—(Brown vs. Mott, 7 Johns. R. 361; Humphries vs. Blight’s assignees, 4 Dall. 370.)

It is no answer to say that Horner, Blocker & Co. would still be liable to the plaintiff, if he were to pay the bill, though not as acceptor, yet for money paid to their use. The plaintiff’s understanding was, that the liability of Horner, Blocker & Co. should be primary, and appear on the face of the paper. Being thus situated, it is possible he may have thought, that they would have been more strongly urged to punctuality, in order to save their credit, than they would, had their undertaking been (as it is) indirect and secondary.

It,should have been left to the jury to determine whether the plaintiff’s endorsement was made with an agreement, either expressed or understood, that Horner, Blocker & Co. should accept the bill, and if there was such an agreement, whether it was known to the directory of the bank before they purchased it. The existence of both these facts, were quite sufficient for the plaintiff’s defence — and in instructing the jury that if it was not intended to injure the plaintiff, and if he was not in fact injured, he was still liable, the judge of the Circuit court mistook the law.

2. A bill of exchange has usually three parties — the drawer — the drawee, (who after acceptance is the acceptor,) and the payee, (after endorsement the endorser)— (Chitty on Bills, 1, 19.) The acceptor is primarily liable to pay the bill, and the drawer and endorser, if the proper steps are taken to charge them, are liable on his default—(Ibid. 182, 183.) And in no instance is the endorser under any liability to the acceptor, unless it be in the case of an acceptance for his honor — (Ibid. 142.)

With a view to the solution of this question, Adams & Taylor must be considered as having become acceptors, with the knowledge and assent of the plaintiff, and the plaintiff be regarded in the nature of a surety for the performance of their engagement.—(Ibid. 292— and Theobold on Prin. & Surety, 180, et post.)

It is a well established rule, and repeatedly recognis-ed in this court, that if the creditor, without the consent of the surety, make a valid agreement with the principal debtor, to prolong the time of payment, the surety will be discharged.— (Pyke vs. Searcy, et. al. 4th Porter, 61, and cases there cited.) It is said there are two points of view in which, agreeing to give time to an acceptor, will discharge the indorser. According to the one, the creditor, in prolonging the day of payment, is considered as having disentitled himself to proceed against the acceptor, until the time agreed to be given, has expired. Such an agreement is inconsistent with the obligation of a creditor to sue the principal debtor, at any moment when required by the surety to do so ; and the creditors, voluntary disablement of himself for the performance of any obligation which he is under to the surety, discharges the latter. According to the other, the creditor is regarded as having,- in point of good faith towards the debtor, obliged himself not to proceed against the surety: because if he were to proceed against the surety, and the surety to pay, the surety would he instantly entitled to his remedy against the debtor; and. so, through the medium, of the surety he would deprive the debtor of the time he had agreed to give him — and therefore, to preserve good faith, he will not be allowed to proceed against the surety.— (English vs. Darley, 2 Bos. & Pul. 61—Boultbee vs. Stubbs, 18 Ves. R. 20—Maltby vs. Carstairs, 1 M. & R. 562, note— Bowmaker vs. Moore, 3 Price, 214—See also, Theobold on Prin. & Surety, 123, et post, and 180 et post—Chitty on Bills, 289, et post.)

There is certainly no obligation to active diligence on the part of the holder in suing the acceptor, and he may forbear the employment of coercive measures as long as he chooses, if he does not agree to give time so as to suspend his remedy against the acceptor, to the prejudice of the parties who are secondarily liable. And whether, in giving time to the principal, a creditor may reserve the right to sue the surety in the interim, is a question, touching which, there is not entire harmony in judicial decision, and as it does not necessarily arise, we decline its examination.

As the record does not discover any objection to the legal validity of the agreement between the directory of the Bank and Adams & Taylor, or of the evidence by which it was shown, we must intend that both the proof and agreement were unexceptionable ; the more especially as the Judge, in his charge, does not notice any objection to either.

The^record then, discloses that the directory of the Bank agreed with Adams & Taylor that they would not look to them for payment, until the legel remedies against the other parties had been exhausted, without affecting a collection. True, the agreement not to sue, was for no definite period, yet the remedy of the Bank against the acceptors was necessarily suspended for six months, for it would have required that length of time (at the least) after the maturity of the bill, to have obtained judgments and had executions issued against the drawer and endorsers. The agreement then, brings the case clearly within the principle of the rule we have stated— and upon both grounds, the judgment must be reversed, and the cause remanded.