text:
    ST. JOHN vs. REDMOND.
    1. Where it is sought to bind a. principal for acts performed by an agent, acting without express authority, on the ground of a previous recognition of similar acts, it is neeessary to shew, that the instrument in question, was taken on the faith of such previous recognition.

      2. An attorney in fact, cannot bind his principal beyond the power delegated.
    3. A power of attorney may be acknowledged before a notary public, and when verified under his notarial seal, may be used in evidence.
    Error to Mobile County court.
    Assumpsit on a bill of exchange, drawn and endorsed by B. Leavens, and accepted by defendant below. Verdict and judgment for plaintiff.
    The bill of exceptions states, that plaintiff offered in evidence the bill of exchange on which the action was founded, accepted by defendant, by James G. Whitaker, as his agent; and to shew Whitaker’s authority to accept, offered in evidence a power of attorney, which au-thorised Whitaker to transact all such business as appertained to, or concerned the defendant in his individual capacity, or as the surviving partner of St. John & Leavens, and after specifying the particular acts which might be done, conferred a general grant of power, to do all and every act which might be necessary to execute the power conferred. No evidence was offered to prove the execution of the power, other than the notary’s certificate attached thereto. The introduction of the power was objected to by the defendant, which objection was overruled by the court, and the power allowed to go to the jury — to which defendant excepted.
    James G. Whitaker, was sworn on the part of the defendant, and testified that he was the agent of St. John, under the power in question, when the bill was excepted ; that St. John had formerly dealt largely in exchange, but was then winding up his business, and doing no new business as broker or otherwise: that the drawer of the bill had no funds in the hands of St. John, nor was St. John indebted to Leavens, the drawer. He further testified, that when the bill was presented to him for acceptance, he-refused at first to accept it, and stated to the person who presented it. that he had no instructions from St. John to accept the bill, and that he did not feel au-thorised to accept it, but told the person who presented it, that he had better leave it. until he, Whitaker, could see Leavens, the drawer: — he agreed to leave it until two o’clock, and went away. Witness saw Leavens, who said he would meet the bill at maturity. Witness then accepted it, relying on the assurance of Leavens. Witness further testified, that the bill in question did not grow out of, or relate to the business of the defendant either as surviving partner of St. John & Leavens, or to St. John’s individual business, but the bill was for the benefit and advantage of the drawer.
    Upon cross-examination, witness proved that St. John & Leavens had been commission merchants and money brokers, and had large dealings with the firm of C. Irby & Co.: that St. John was surviving partner of St. John & Leavens, and B, Leavens, the drawer, was surviving partner of C. Irby & Co.: that after the death of Leavens and Irby, St. John had accepted bills drawn by B. Leavens on him, payable in New York; that witness accepted some for St. John in St. John’s presence, and with his assent: that the bills so accepted, were entirely for the benefit of C. Irby & Co'., or of Leavens, as surviving partner of C. Irby & Co.
    Witness further testified, that he accepted the bill, under the power in question, and believed he was so au-thorised to do by virtue of said power: that the bill was accepted, when St. John was absent from Mobile, but had an office in Mobile, and about ten days before the maturity of the bill: that he then was, and still is the agent, clerk and book-keeper of St. John: that there were large transactions unsettled between St. John and B. Leavens.
    The court charged the jury, that the power produced, did not authorise Whitaker to accept bills: that if the jury were satisfied the bill did not relate to the business of St. John, either as surviving partner of St. John & Leavens, or to his individual business, the defendant was not liable.
    The court further charged the jury, that if St.John had paid any bill of exchange, which had been accepted by Whitaker for him, under said power, he was liable on this. To which last charge, defendant excepted.
    The errors assigned were—
    1. That the court permitted the power of attorney to go to the jury as evidence, without sufficient proof of its execution:
    2. That the court charged the jury, that if St. John had paid any bill of exchange, which had been accepted by Whitaker for him, under said power, he was liable on this.

      'Dunn, for plaintiff in error.-

      Stewart, contra.
   ORMOND, J. — It

is conceded by the counsel for the defendant in error, that the charge of the court may be wrong, but he insists, that as the power of attorney,in virtue of which this bill of exchange'was accepted,-authorised the acceptance of the bill, this court will not reverse, even if the charge was wrong,

The authority conferred by the power of attorney, is! to transact all such business as appertains to, or concerns-the plaintiff in his individual capacity,- or as the surviving partner of St. John & Leavens, and after specifying the particular acts which may be done,- confers a general grant of power, to do all and every act which may be necessary- to execute the power conferred.

There can be no doubt, that an attorney in fact cam not bind his principal beyond the1 power delegated to him, and whether an authority of this description be considered general; as contemplating the execution of a variety of acts, in contradistinction to a special power to-do a particular act, the construction must be the same. In either case, the principal is not bound, unless the act done be within the scope of the power. The only ques-* tion in this case, must be, whether the acceptance of the bill in question, was an act appertaining to the business,- or necessary to the settlement of the firm of St. John & Leavens, or concerned the business of St. John individually, for within these limits, the power is circumscribed. If, as appears to be the proof, the bill was accepted for the accommodation of a third person, it was not author-ised by the power: the charge of the court, therefore, on this point, was Correct.

But in the charge given to the jury, the court erred. The charge is in these words: “ that if St. John had paid any bill of exchange, which had been accepted by said Whitaker for him under said power, he was liable on this.” The power of attorney expressly authorises the execution of any instrument of writing, if such be necessary to carry into effect, the object of the power, and if any such had been made, to accomplish the design of the power, St. John would doubtless have been responsible for their discharge-. But it is inconceivable that the payment by St. John, of a bill drawn or accepted in pursuance to the power of attorney, should subject him to the payment of a bill not drawn in reference to the power, and wholly unauthorised. But although this is the literal meaning of the charge, it was probably given in reference to the evidence of the attorney — that he had accepted bills in the presence of St. John, and with his assent, which were afterwards paid.

An authority to act for another, may be inferred from the conduct of the party, as by paying debts, or recog-nising acts contracted or entered into by such supposed agent. But where no express authority is proved, au-thorising the agent to bind the principal in the manner he is sought to be charged, but such authority is presumed from the previous conduct of the party recognising such acts as binding on him, it will be necessary to show that the instrument was tafeen on the faith of such previous recognition of authority in the agent to bind the principal — (Seé the authorities to this point; in the note to Chitty on Bills, 35.)

If, therefore, we could understand the charge of the court, as applying to the recognition and payment by St. John,- of previous acceptances by Whitaker in his name,- and not within the scope of the letter of attorney; it would not neces'sarily follow, that St. John was liable in this instance, unless the bill was taken on the faith of such previous acceptances by Whitaker having been recognised and paid by St. John.-

The power of attorney offered in evidence; was acknowledged by the plaintiff before a notary public; who certified the acknowledgment thereof under his notarial seal, arid it was permitted to be read in evidence without further proof, which it is insisted was error. But we are df opinion, that the act of eighteen hundred and three, whieh authorises notaries public to receive proof or acknowledgments o'f instruments of this character,- and to certify the fact under their notarial seal, was intended to be such a verification aS will authorise them to be read in evidence without further proof.-

The judgment is therefore reversed, and the cause remanded for further proceedings.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    LARKIN vs. THE BANK OF MONTGOMERY.
    L Vendee in possession, when sued for the purchase money, cannot resist & recovery, by shewing title in a third person.
    Error to the Circuit court of Macon.
    Assumpsit on a note, given for the purchase of land, tried before Pickens, J.
    Defendant below was in possession of the property, but resisted a recovery, on the ground, that the title was in another person, who had obtained the same by preemption, from the United States. The court charged, that there was no such failure of consideration, as would avail the defendant in this action. Verdict and judgment for plaintiff below.
    The charge of the court was assigned for error.
    Porter-, for plaintiff in error.
   ORMOND, J.

The defence in this -case, is, in substance, the assertion of a right to set up an outstanding title in a third person. This, the plaintiff in error, who is a purchaser from the trustees of the .sixth section, cannot be allowed to do. By the purchase, he was let into the possession of the lot, and cannot, while he remains in possession, be permitted, when sued for the purchase money, to defend himself, on the ground -that the vendor had not title to the premises. To enable him to do this, in a proper case, he must put the vendor in statu quo, by returning, or offering to return, the property. He cam not, by retaining possession obtained under, and by virtue of the sale, consider the contract as subsisting, and defend himself by showing a want of title.

We have, therefore, considered it unnecessary to en-quire into the effect of the patent offered in evidence,

^ There was no error in the judgment of the court below, and it is affirmed.


author: GOLDTHWAITE, J.

text:
    REID vs. OWEN, MARTIN et al.
    1. Where the proceedings below are so informal and irregular, that the jurisdiction of the court cannot attach, the writ of error will be dismissed.
    Error to the County court of Dallas,
    Proceedings in admiralty.
    This is the same case which was before this court at its last term, when the writ of error was dismissed, because the plaintiff in error did not appear to have been a party to the judgment in the County court. After the dismissal of that writ, the plaintiff in error filed his petition in the County court, accompanied by an affidavit of his claim, praying to be admitted as a party to this suit. The judge of the County court, at a special term, held on the nineteenth of February, eighteen hundred and thirty-nine, on this petition, ordered that the plaintiff in error should be made a party to the proceedings of record, and should he considered as legally intervening for his interest in the steam-boat. No other proceedings were had on this petition, and Reid again sued put his writ of error.

      fttewqri, for plaintiff in error,
   GOLDTHWAITE, J.

These prqceedings are not in ponformity with the opinion expressed, when this suit was formerly before this court. If it was necessary, to protect any supposed right of the plaintiff ip. error, for him to become a party to this suit, he should haye filed his petition to the County pourt in term time, setting forth the nature of his claim, and shewing satisfactory reasons why it was not interposed previous to the decree. Notice should have been given to the adverse parties, or their proctors in court, in order that the claim might be contested. If the reasons for the delay were satisfactory, then the claim should haye been admitted, on the payment of all costs incurred, and giying security for those which might subsequently arise, if the claim should not be sustained, The suit would then haye assumed the Character of a litis contestatio, and the facts of the libel could have been avoided ’ or denied, pr their legal sufficiency to warrant a decree examined intp. In effect, the suit wpuld then haye stood precisely as if the claim had been interposed in the first instance, and no decree for default had been rendered, and after a final decree, either of the contesting parties cpuld haye examined if pn writ of error or appeal.

This course was sufficiently indicated ip pur former opinion, and was shewn to be the established course of proceeding, in admiralty cases. The fact of there being several distinct and independent decrees, in the present case, was also adverted to, and the writ of error seeking to remove them, would have been dismissed for that cause, as by the decree, the interests of the libellants became severed, and should have been appealed from, as several decrees.

The proceedings are so informal and irregular, that the jurisdiction of this court cannot attach, for the want of a proper party, and the writ of error must be dismissed!


author: COLLIER, C, J.

text:
    REED vs. BRASHER.
    1. The County court has jurisdiction of the estate of a deceased Jndjan of the Creek tribe, and a grant of administration on such an estate is valid.
    Error to the Circuit court of Shelby.
    Case for the conversion of a slave, tried before Chapman, J.
    Plaintiff brought his action against defendant to recover a slave, which defendant claimed as administrator of the estate of Samuel Hawkins, deceased. The letters of administration were received in evidence, but objected to by plaintiff, as Hawkins was an Indian of the Creek tribe, Yerdict and judgment for defendant.
    The error assigned, was the admission of the letters testamentary in evidence.

      Clark, for plaintiff in error.

      Martin, contra.
   COLLIER, C, J.

The bill of exceptions presents several questions which were not noticed in the argument, and as they do not, in our opinion, show the judgment of the Circuit court to be erroneous, we do not feel called on to examine them more particularly.

The only point made by the plaintiff in error, is, that the grant of administration to the defendant, Thomas H. Brasher, by the judge of the County court of Shelby,was void, because Samuel Hawkins, the intestate, was an Indian belonging to the Creek tribe of Indians. Such being his character, it is insisted that he was not a citizen of this State, and that our courts have no right to exercise jurisdiction over any estate he may have left at his death. Without undertaking to enquire whether the premises assumed are well founded, we are satisfied that the conclusion deduced, is not a necessary results

By the 3d section of the act of eighteen hundred and twenty-nine, to extend “ the jurisdiction of the State of Alabama over the Creek nation,” it is enacted that the jurisdiction of the Orphan’s courts, &c. of the counties to which the Creek territory within the limits of this State is attached, be extended over the same. Among the counties whose limits are thus enlarged, Shelby is enumerated. This act, the plaintiff’s counsel contends, was not intended to subject to the process of our courts, the estates of the Indians, but those only who were citizens of the State, and residing Within the nation. Waiving the examination of this argument, as the decision of the case does not require it, we think it clear, that the jurisdiction exercised by the County court of Shelby, is prima facie regular. It is enacted, that “ where any person may have died, having no known place of residence within any county of this State, his or her Will may be proved, and letters testamentary or of administration thereon granted, in the county where the lands devised,, or any part thereof, lie; or the will may be proved, and letters testamentary granted, or administration may be' granted in any county where the goods and chattels and debtors, or any part thereof, of such testator or intestate,may be” — (Aik. Dig. sec. 28, p. 251.) Now, our laws have alwayé recognised the capacity of the Indian to acquire property and to make contracts, and, of consequence; his fight to sue, and his liability to be sued:— and possessing these rights; and being subject to this liability, it would seem necessarily to result, that any property of which he Was the owner at the time of his death, might be administered on; for the benefit of creditors.

It does not appear from the record, but that the ttegrb, the subject of this stiit, was in the county of Shelby, (as defined previous to the extension of its limits;) at the timé Of the grant of administration; and, in fact, we are ¿au-thorised-, if necessary, to intend that she was there. This being the case, under the act last cited, it was clearly competent for the court to have granted the letters of administration, under which Thomas H. Brasher defended. And the consequence is, that the judgment of the Circuit court is affirmed.


text:
    STRADER, PERRINE & CO. vs. ALEXANDER et al.
    1. It is not a valid objection to a bill of exceptions,- that it was signed after the adjournment of court.
    2. In an action by the endorsee of a promissory note, against the maker, an objection, that the declaration omits to set oiit the name of one of the endorsers, is not available after' verdict.
    3. But where an endorsement is alleged, and the note does not correspond with the allegation,- it will be rejected.-
    Error to the County court of Mobile'.-
    Assumpsit on note.
    In this casej the declaration alleged a two-fold endorsement of the note, and a blank was left for the name of one of the endorsers,- but when the note was produced? all the endorsements were erased except one, and defendant objected to the note, as evidence to support the declaration. Objections Were also made to the’ bill of exceptions, which was signed after the adjournment of the court. The court below permitted the note to go to the jury as evidence, which was now assigned for error.

      Stewart, for plaintiffs in error.
   ORMOND, J.

The first question to be determined, is,, what are the allegations of the declaration, as shown by the transcript of the record ? After describing the note,- and averring its exe’chtion and’ delivery to E. Stevenson? the payee, it proceeds: “ who afterwards and before the payment thereof, or any part thereof, to wit, on the day and year aforesaid, endorsed and delivered the same to -, was on the same day endorsed the said note to Said plaintiffs,- and thereby,” &c.

We -understand this to be an allegation, that the note Was by the payee endorsed to some person whose name is not inserted, and by him endorsed to the plaintiffs. A majority of the court attain this conclusion, because, otherwise, the declaration is senseless. It is true, we read the word “toas,” as if it was written who, because the context requires us so to read it, and we must intend that it is an error in the cleric transcribing the record. This is our constant practice,,where the context clearly shows the error, and indicates the meaning. The plaintiffs derive their title to the note sued on, by two endorsements, and had a demurrer been filed to the declaration, for the omission to set out the name of one of the endorsers, the demurrer must have been sustained. But the defect would have been cured after verdict, as we would have presumed that the necessary proof was made to sustain the declaration.

But the objection here, is to the admission of the note in evidence. The note, when produced, had but one endorsement from the payee to the plaintiffs, and therefore, did not correspond with the instrument declared on, and should have been rejected on the motion of the defendants below. We cannot, as the matter is now presented to us, determine the question which was argued at the bar, as to the right of the plaintiffs below to strike out all the endorsements but that of the payee, and make the note payable directly to themselves, because, if it were admitted that they had the right, it would not vary the case. When stricken out, it is the same as if their names never were on the note, and it is then the simple question of a note endorsed by the payee to the plaintiffs, offered in evidence to support a declaration which alleges an intermediate endorsement from the payee to the plaintiffs. This was not the note declared on, and as the allegata and probata must agree, it should have been rejected.

These facts appear from a bill of exceptions, which state that the counsel for the plaintiffs admitted, that he had a few days before the trial, erased and changed the first endorsement, so-as to make the note payable to the plaintiffs, and that he had erased the second and third endorsements. The counsel for the defendants below, then objected to the note going in evidence to the jury, but it was admitted by the court — to which he excepted.

Appended to the bill of exceptions, which is regularly signed and sealed by the judge, is a certificate of the judge, as follows: “ This bill was presented for signature yesterday, for the first time, the plaintiff’s counsel objecting to its being signed, because, he says it is unlawful to sign bills of exceptions, after the minutes of the court are made up and signed. The counsel for the plaintiffs gave notice to the undersigned, before the signing of the court minutes, that he should object to the signing of this bill of exceptions, except done while the court was in session, or before the signing of the court minutes.”

The objection, then, is not that the exception was not taken at the trial, or that the facts are untruly stated, but that the bill was not signed and sealed by the presiding judge during the term. The objection cannot prevail, If the exception be taken at the trial, it may be noted by the judge, and the bill sealed at any time, either during the term or afterwards. Though it is certainly desirable that the bill should be sealed as soon after-wards as possible, while the facts are fresh in the recollection of the judge, and if it be delayed, until from the loss of his note of the points reserved, or from any other cause, it be doubtful what the point was, it would be his duty to refuse to seal the bill. We cannot presume that there was any doubt on his mind, as to the correctness of the statement in the. bill of exceptions.

In the case of Pratt vs. Malcolm, (13 Johns. 320,) where the objection was, that a bill of exceptions was signed b.y two judges only out of three, who composed the court? —the court say, to permit a bill of exceptions to be sealed by one judge only, would be liable to great abuse; for although regularly a bill of exceptions, must be tendered at the trial, yet it is in practice usually reduced to form, and sealed afterwards, and often in vacation. To the same effect, is the case of Clark vs. Dutcher, (19 Johnson, 246.)

In Sikes vs. Ransom, (6 Johnson, 279,) the court refused to award a mandamus to a judge, who refused to amend a bill of exceptions at the succeeding term, because he had forgotten the facts, but the case shows that if the bill had been amended at the next term, it would have been good — (See also 2 Dunlap’s Practice, 641, and 1 Sellon’s Practice, 469.)

The case of Walton vs. The United States, (9 Wheaton, 651,) has been relied on by the counsel for the defendant in error, but we not conceive that that case interferes with the principles here laid down. The objection there sustained by the court, was, that it did not appear that the exception toas taken at the trial: no question was made as to the time of sealing of the bill; but the bill, when sealed, must show that the exception was taken at the trial, and the bill, when sealed, is sealed nunc pro tunc.

In this case, it appears conclusively, from the bill itself, that the exception was taken at the trial of the cause, though reduced to form afterwads, and when sealed, it operates by relation to the time of the trial.

It would be a very different question, if we were asked to compel a judge, after the conclusion of the term, to seal a bill of exceptions: when such a case arises, it will perhaps be considered that the practice of sealing bills of exceptions after the adjournment of the court, is one which ought not to be encouraged, unless the delay be caused by the act of the judge. But these considerations cannot apply, where the judge voluntarily seals the bill after the adjournment of the court, and where, as wé must presume, he had the means of stating the facts, and the point reserved for the decision of this court, as it really transpired when the exception was taken.

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


text:
    SMYTH vs. STRADER, PERRINE & CO.
    1. The assignee of a note drawn by a firm, payable to one of its members, and assigned by him, may maintain action against the firm.
    2. Where pleas conclude to the country, a similiter is not necessary.
    3. A clerical mistake is always amendable.
    Error to the Circuit court of Mobile.
    Assumpsit on note, tried before Harris, J.
    This was an action of assumpsit, brought by the plaintiff in error against the defendants, as makers of a promissory note, negotiable and payable at the Rank of Mobile. The note sued on, purports to have been made by the defendants, as partners, to E. Stevenson, or order, and by him endorsed to the plaintiff.
    The defendants pleaded—
    1. The general issue;

      2. A special plea, denying the execution of the note, which was verified by affidavit;
    3. A special plea, setting forth that E. Stevenson, the payee and endorser of the said note, was, at the time of the execution of said note, a member of the firm of Stra-der, Perrine & Co., and also one of the makers of said note: to this plea, the plaintiff demurred — which demurrer was overruled by the court, and is now assigned for error.

      J.A. Campbell, for plaintiff in error.
   ORMOND, J.

The solution of the question presented on the record, will depend on the proper construction of the different acts of the Legislature on this subject.

By the act of eighteen hundred and twelve, which repealed a former act,- (and Which was, in substance, the statute of Anne,) Aik. Dig. 329, sec. 6, it is provided, that “ all bonds, obligations, bills single, promissory notes, and all other writings for the payment of money or any other thing, may be assigned by endorsement, whether the same be made payable to the order or assigns of the obligee or payee, or not; and the assignee may sue in his own name, and maintain any action which the obli-gee or payee might have maintained thereon, previous to assignment; and in all actions to be commenced and sued, upon any such assigned bond, obligation, bill single, promissory note, or other writing as aforesaid, the defendant shall be allowed the benefit of all payments,discounts and sets-off, made, had or possessed against the same, previous to notice of the assignment, in the same manner as if the same had been sued and prosecuted by the obligee or payee therein; and the person or persons to whom such instrument so payable is assigned, may maintain an action against the person or persons to whom such instrument so payable is assigned, as in ca--ses of inland bills of exchange.”

' The effect of the concluding words, “as in cases of inland bills of exchange,” having been construed by the courts to introduce the law merchant, in regard to the endorsement of the note, the Legislature, in eighteen hundred and twenty-eight, passed another act, which will be found in Aik. Dig. 329, sec. 11.

“ Whereas, much injury has been done to the citizens of this State, by means of the uncertainty of the decisions of the courts of this State-, in relation to the proper time at which endorsers of hills, notes, bonds and other instruments, made negotiable by endorsement by law, shall make demand of payment of the payors of such negotiable instruments; for remedy whereof,

“ Be it enacted, &c. That hereafter, the remedy on bills of exchange, foreign and inland, and on promissory notes, payable in bank, shall be governed by the rules of the law merchant, as to days of grace, protest and notice; arid bills drawn and payable within this State, shall be deemed inland bills, and those drawn here, and payable out of the State, shall be deemed foreign bills.

“All other contracts for the payment of money or property, or for the performance of any duty of whatever nature, shall be assignable, as heretofore, and the as-signee may maintain such suit thereon, as the obligee or payee could have done, whether it be debt, covenant or assumpsitProvided suit be brought to th'e first court of the county where the maker resides, to which suit can be brought; and if he shall fail to sue the maker to the first court, as herein provided for, the endorser shall be discharged from liability, unless suit shall be delayed by his consent; and no days of grace shall be allowed on any contract, (except bills of exchange, and notes payable in bank,) either between the assignee and the maker, or between the assignee and the assignor,”

The assertion of the plea is, that as Stevenson, the payee of the note, was also one of the firm of Strader/ Perrine & Oo., and’ therefore one of the makers of the note, he could not maintain an action at law upon it, and that therefore, he cannot, by his assignment to the plaintiff in error, transfer a right to him which he has not himself.

It is certainly undeniable, that the payee could not, himself, maintain an action at law on the note, as he would be both plaintiff and defendant, and, as a conse* quence of this, it is insisted, that under the statute above referred to, the assignee can bring no action which the assignor could not have maintained.

. It is not necessary now to determine, whether an as* signee of a promissory note, not payable in bank, could maintain an action at law in a case like the present, where the payee was also one of the makers of the note, as the note on which this action is founded, is negotiable and payable at the Bank of Mobile, and therefore, expressly exempted from the influence of the statute regulating the assignment of bonds, notes, and other instrumentó not payable in bank.

The question, then, in this case, is, whether by the lex mercatoriafhQ plaintiff can maintain this action, it being conceded that his assignor could not. It must be admitted, that this question is not free from difficulty ; but we think the proper construction of the statute is, that the action is well brought. It has aiieady, indeed, been so decided in this court, in the case of Hazlehurst vs. Pope, (2 Stew. & Por. 259.) In that case, a bill of exchange was drawn by a firm on one of its members, and by him endorsed to a stranger. The court held, after an elaborate examination of the question, that the action was maintainable by the endorsee, though it was admitted that the payee could not have sued at law in his own name. This was, it is true, the case of a bill of exchange, but the statute already referred to, puts promissory notes, payable in bank, upon a footing, in all respects, with a bill of exchange.

The case of Peter Smith and others vs. Lusher and; others, (5 Cowen’s Rep. 688,) is expressly in point. That was, like this, a promissory note, made by a firm to one of its members, and by him endorsed to Lusher and others. The endorsees brought suit against the firm, and the court held the action maintainable, on the principles of the law merchant, although the court admitted, that the payee could not have sued in his own name. The decision of this case, was made under the influence of a statute of the State of New York, which makes “promissory notes negotiable, as inland bills of exchange,, according to the custom of merchants.”

In the case at bar, the note being payable at bank, is also by our statute, to be regulated by the law merchant. It is, however, insisted, that the statute only intended to afford the remedy between the endorser and the endor-see, and to permit the latter to recover of the former, according to the rules of the law merchant, and to dispense with a suit against the maker, when the note so endorsed was payable in bank. But from a careful examination of the statute, we are satisfied that it was the intention of the Legislature, that a note payable in bank, when endorsed, should be governed and controlled by the law .merchant, not only as to days of grace, protest and notice, but also as to all other rights recognised by that law, as existing between the parties to the note. The statute is silent, as to the right of the maker of a note, payable in bank, to setup an off-set to the note in the holder, yet it will scarcely be contended, that on a note so payable, an off-set could be made against an assignee, unless the note were taken under such circumstances as would authorise an off-set by the rules of the law merchant.

We apprehend, therefore, that the Legislature intended to make promissory notes payable in bank, negotiable, as inland bills of exchange, and to be governed and regulated by the same law.

The defendants in error contend, that the record shows that the judgment was for the plaintiff below. The en-tryis in these words: “This day came the parties, by their attorneys, and defendants demur to the third plea of the plaintiff — Which demurrer is sustained. It is therefore considered by the court., that the plaintiff take nothing by his action, but that the plaintiff go hence and recover of the plaintiff his costs,” &c. It is manifest, that this is a clerical misprision of the clerk, by transposing the names of the plaintiff and defendant. This is clear, not only from his describing it as the plea of the plaintiff, but also from the judgment of the court, which is rendered in favor of the defendants below, upon the decision of the court in their favor, on the demurrer.

No inference can be drawn from the two pleas of the defendants,to which no replication wasfiled by theplain-tiff below. As both of the pleas concluded to the country, the similiter was not necessary, and no judgment could have been given for want of the general replication.

The judgment, therefore, which was rendered on the demurrer, was a judgment in favor of the defendants— and the record must be considered as so amended.

For the error of the court below, in overruling the demurrer of the plaintiff to the third plea of the defendants -^the judgment must be reversed, and the cause remanded for further proceedings.


text:
    VON PHEEL & M'GILL vs. CONNALLY & ANDERSON.
    I. In assumpsit, on a note made payable to W, a plea of off-set of an-open account due defendants by W & D, partners, <fcc. — is bad on demurrer.
    Error to the Circuit court of Madison county.
    Assumpsit on note.
    Von Pheel & McGill brought an action on a note drawn by Connally & Anderson, payable to Wellman, or order, and by Wellman assigned to plaintiffs, to which defendants plead as an off-set, an open account, owing to them by Wellman & Dear, partners, &c. due before notice of the assignment of the note. To this plea, plainiffs demurred, but their demurrer was overruled by the Circuit court, and judgment rendered for defendants. All of which was assigned for error.
    fJopkins, for plaintiffs in error,

      McChmgs contra.
   GOLDTHWAITE, J.

The counsel for the defendants in error, has very properly conceded, that the plea of set-off, interposed as a defence to this action, must he sustained, if at all, by an equitable construction of the 8th section of the act of the thirteenth of February, eighteen hundred and eighteen, entitled “ an act for the better regulation of judicial proceedings.”

This section is in these words: “ whenever any cause of action may exist, against two or more partners, of any denomination whatever, it shall be lawful to prosecute an action against any one or more of them; and when a writ shall be issued against all the parters of any firm, service of the same on any one of them, shall be deemed equivalent to a service on all, and the plaintiff may file his declaration, and proceed to judgment, as if the said writ had been served on each defendant; and the judgment shall be equally valid and effectual against all the defendants” — (Aik. Dig. 268.)

This enactment is supposed to make the liabilities of partners several, as well as joint, so far, at least, as to authorise a separate action against each partner, and the defendants assume, that the right to off-set a demand, must be co extensive with the right to sue. It must be admitted, this argument would be entitled to great weight, if the construction of this section of the statute was open to examination, but it is, in a great decree, foreclosed by a decision of this court. In the case of Marr’s ex’rs vs. Southwick et al. (2 Porter, 351,) which was a bill filed by the creditors of a firm, against the executrix of a deceased partner, to subject the assets of the estate in her hands, to.the payment of a partnership debt, the court deny the principle now asserted by the defendants in error, and limit the construction of this section of the statute to its letter. This decision has a more important bearing on this case, because the learned judge who delivered the opinion of the court, admits, that if suit is commenced against one partner, and he dies before judgment, it may be revived and prosecuted against his personal representative. This latter point did not arise in the case, however, and although the opinion of the court seems to be intimated, it excludes the idea, that the question is to be considered as any other than an open one. If this is the true construction, it is somewhat remarkable, that only one feature of the original liability of partners should remain after this enactment, which is the very feature pointed out ih that decision.

It cannot be supposed, that a right of off-set once perfect, can be defeated by the happening of any event whatever, and if we test this case by such a principle, the fault of the defendants’ position will be made apparent. We may reject the names of all the parties, except Wellman and Connally, from the consideration of this case, (as their introduction does not affect the principle which is decisive of it,) and suppose the action to be brought by the former, against the latter; in this aspect, the clause to make the set-off would be most imposing, but if we substitute, in the place of Wellman, his personal representative, and suppose the suit instituted after his death, the debt, at law, is entirely gone, and even in equity also, unless Dean, the surviving partner, should prove insolvent.- The debt, which is supposed capable of being successfully opposed to this suit, (because Wellman might be sued on it,) ceases to be binding on his personal representative, and becomes the sole debt of the survivor. This is the precise case of Marr’s ex’r vs. Southwick et al. and we must either overrule that case, or preserve uniformity of decision, by declaring the plea in the present suit bad.

Since the decision of the case quoted, the Legislature has considered it proper to give a remedy against the personal representatives of deceased partners, in the same manner as if their obligations were several, as well as. joint — (acts of 1838) — but this legislation can have no effect on existing suits, which, of course, must be determined under the former rule.

The judgment of the Circuit court is reversed, and if desired, the case will be remanded to the Circuit court, in order that the proper judgment may be there rendered.


text:
    TRANN vs. GORMAN & CHAPMAN.
    1; The statute of 18185 (Aik. Dig. 268¡) merely gives the right to sue, and by the suit alone, to change the nature of a partnership obligation from joint, to joint and several.
    Error to Dallas County court.
    Assumpsit on note.
    Gorman & Chapman instituted this action for the use of McKeogg against Trann, who is sought to be charged as one of the firm of Trann, Lewis & Co. He relied, in the court below, on the plea of set-off, and offered in evidence a debt due to him individually^ from the nominal plaintiffs, owing at, and previous to the time when the note sued on Was assigned to the actual plaintiff. The County court refused to admit this evidence, and the supposed error in its refusal, is now sought to be corrected.

      J. A. Campbell, for plaintiff in error.

      Clarke, contra.
   GOLDTHWAITE, J.

If the right to sue Trann as a several debtor, arose from the character of his contract with the nominal plaintiffs, the statement of this case would carry with it the decision ; but the right to sue does not thus arise. It is given specially by the 8th section of the act of the thirteenth of February, eighteen hundred and eighteen, entitled “ an act for the better regulation of judicial proceedings.” We have recently de-eided, in. the case of Von Pheel et al. vs. Connally et al. that this enactment did not change the nature of the contracts of partners from joint, to joint and several, and that the remedy against a partner must be pursued in the manner given by that section. That case further decides, that no right of off-set arises out of the enactment referred to. It will readily be perceived that case is the converse of the one now presented, and demonstrates that the off-set offered in the court below was properly rejected, unless the section of the statute before cited gives to the plaintiff the right to consider the obligations of his debtors, when partners, as several as well as joint, and to proceed against them accordingly. Such is the construction which we think the statute must receive. If the plaintiff, during the lifetime of all the members of the debtor firm, elects to consider them as several debtors, and commences suit against them, he is within the strict letter of the statute, and we cannot deny him the right to proceed against any one or more of them. Having made this election, it does not rest with him, when an off-set is produced, which could be enforced, if the contract was in fact several, as well as joint, to say, that it is a joint one with all the partners, and thus preclude the set-off.

But this right of election is given alone to the plaintiff, and cannot be exercised by the defendant, as will be apparent, if we change the parties to this suit, and suppose Trann suing Gorman & Chapman for the debt now attempted to be off-set. The latter would not, then, be permitted to elect to consider Trann as their several debt- or, because, in the event of his death, the debt due from them would pass to his personal representative, who would not be liable at law for the debts of Trann, Lewis & Co., nor in equity, unless the survivors of the firm were to prove insolvent.

These distinctions may appear somewhat subtle, but they arise out of the peculiar terms of the statute of eighteen hundred and eighteen, which gives merely the right to sue, and by the suit alone, to change the nature of a partnership obligation from joint, to joint and several.

We have not rested this decision on the case of Pitcher et al. vs. Patrick’s adm’r, (Minor, 321,) notwithstanding its apparent identity in principle, because the suit, in that case, was on an obligation expressly made joint and several, by the first section of the statute of eighteen hundred and eighteen; and it may be possible, for that reason, that a distinction can be drawn between that case and this.

Let the judgment be reversed, and the case remanded.


author: COLLIER, C. J.

text:
    SMITH vs. RAYMOND.
    1. An averment in a declaration on a note payable in bank, that the same was presented at the bank, when due, is a sufficient allegation of a demand of payment.
    Error to Wilcox Circuit court.
    Assumpsit on note.

      J. A. Campbell, for plaintiff in error.
   COLLIER, C. J.

The plaintiff was sued as the endorser of a promissory note, “ negotiable and payable at the Rank of Mobileand a judgment by nil dicit, on plea withdrawn, having been rendered against him, he prosecutes a writ of error to this court, and here insists, that the declaration is defective, in not alleging a presentment and demand of the note for payment.

The declaration states, that the note “ was presented at the Bank of Mobile, on the day the same became due.” A presentment at the bank, implies that the paper was shown to the proper officer of the bank — and more, it supposes that the act was effectual, and such as is usual, and therefore, it will be held to include a demand.

The declaration, in the particular objected to, being sufficient, — the judgment is affirmed.


text:
    CAVENDER vs. FUNDERBURG.
    1. The Circuit court has cognizance of all breaches of contract, sounding in damages merely.
    2. If a contract does not in terms, or by necessary implication, furnish a rule by which the damages for its breach can be computed, it is a case sounding in damages merely, and the jurisdiction of a justice of the peace is ousted.
    Error to Talladega Circuit court.
    Case for the breach of a parol contract, tried before &'hortridge, J.

    The jury assessed plaintiff’s damages at thirty dollars, whereupon the court non-suited plaintiff, because the recovery was less than the court could take cognizance of —which was assigned for error.

      Leftwick, for plaintiff in error.
   ORMOND, J.

The decision of this question, depends on the construction to be put on the act defining the jurisdiction of the courts, which provides, “ if any suit shall be commenced in any court, for a less sum than such court can legally take cognizance of, or if any person shall demand a greater sum than is due, on purpose to evade this act, in either case, the plaintiff shall be non-suited, and pay costs; provided always, that if the plaintiff, or any person for him, will make an affidavit, (to be filed in the clerk’s office,) that the sum for which the suit shall be brought, is really due, but that for want of proof, or that the time limited for the recovery of any article that bars a recovery in that case, such plaintiff shall have a verdict and judgment, for what appears to he legally proved — (See Aik. Dig. 269, sec. 67.)

The contract set out in the declaration, is, that the defendant agreed with the plaintiff, that if he would, with two workmen,which he then had in his employ, building a house, aid him in erecting a cotton press, that he would immediately after haul for the plaintiff, twenty thousand feet of lumber, from a mill in the neighborhood, at four dollars per thousand — that he complied with the contract on his part, but that the defendant did not perform his agreement — that he was thereby put to great delay and expense, and was compelled to pay eight dollars per thousand for hauling his lumber.

If an action could not have been maintained before a justice of the peace, for the breach of this contract, the court erred in directing a non-suit. The jurisdiction of justices, is thus defined by the statute: “ all debts and demands, not exceeding fifty dollars, for a sum or balance due on any specialty, note, bond, cotton receipt, contract or agreement in writing, or for goods, wares and merchandise sold and delivered, or for work or labor done, or for money lent, or for specific articles, or for any balance due, either by written or verbal contract, or assump-sit, in any case not sounding in damages merely, are hereby declared to be exclusively cognizable and determinable before a justice of the peace.” “All contracts for the payment of specific articles, or for the performance of services, when the value of the article contracted for, or of the services to be performed, does not exceed fifty dollars, shall be cognizable and determinable by justices of the peace” — (Aik. Dig. 291.)

To authorise a justice to take jurisdiction in cases of this description, the contract must itself furnish the measure of damages, or the rule by which they are to be ascertained. If no criterion is established by the parties themselves, or, does not necessarily flow from the contract, the action must, in the language of the act, sound in damages merely, and the justices jurisdiction is ousted.'

To apply these principles to this case, the damages which the plaintiff may have sustained from the breach of the contract, by being delayed in carrying on his work, could not be ascertained from the contract itself, nor does it expressly, or by implication, afford any rule by which they can be computed. The right to damages, then, is a consequence of the breach of contract, sounding in damages merely, and which a jury alone could assess, and if this action cannot be sustained, the plaintiff is remediless. The court, therefore, erred in directing a non-suit, and its judgment must be reversed, and a judgment rendered for the amount of the verdict of the jury, and the costs of the court below, and this court.


author: GOLDTHWAXTE, I.

text:
    HINTON vs. THE BANK OF COLUMBUS.
    1. If the acceptorjbf a bill of exchange put it in circulation, he admils it to be a subsisting bill, and cannot be allowed, when sued on it, to allege that it was before that time paid.
    Error to Mobile County court.
    Assumpsit. — This is an action of assumpsit, by which the defendants in error sought to recover of the plaintiff in error, the amount of the bill of exchange described in the declaration. The bank claims title to the bill, through the endorsement of an individual of the same name with the plaintiff in error, who is sued as the acceptor, and his personal identity with the last endorser, was established by evidence produced at the trial. A demurrer to the declaration was interposed, on which judgment was rendered in favor of the plaintiff below. On the trial of the general issue, the identity of the endorser and acceptor having been shown, the defendant below moved the County court to instruct the jury, if they were satisfied the acceptor had paid the bill and took it up, if he afterwards endorsed it to the plaintiffs, they ought not-to recover on the bill. The court refused to give this charge, but instructed the jury, “ that a bill of exchange, drawn payable to order, and put in circulation, charges and binds all parties to it, until its maturity : that it might be endorsed, and change hands a hundred times, and the acceptor might even pay it before maturity, yet if he put it in circulation again, the parties were chargable until its maturity.” To this charge, and refusal to charge, the defendant below excepted, and now seeks to revise the supposed errors in these several decisions of the County court.
    Dunn, for plaintiff in error.
   GOLDTHWAXTE, I.

The question which is supposed to arise from the circumstance of the acceptor and last endorser being one and the same person, is not shown in the declaration, as the sameness of the name is not sufficient to warrant the legal conclusion of identity ; therefore, the demurrer was properly overruled, without the consideration of this point.

The evidence before the jury did not prove, nor tend to prove the payment of the bill by any person, but if it Was paid by the acceptor, and afterwards put in circulation by him, it would not be with him to insist on such a defence. By putting it in circulation, he admitted, and, in effect said, to every holder, that it was a subsisting bill, and the legal presumption arising from his aet, would warrant any other inference than that of payment.

The County court was therefore right in refusing to give the charge asked for, and in relation to that after-wards given, it is sufficient to say, that we do not conceive ourselves called on to examine its correctness. If admitted to be erroneous, — and such it was unquestionably, when considered as ascertaining a rule for the decision of other cases, — it could, by no possibility, have prejudiced the defendant, as there was no evidence before the jury, to impair, in the least, the plaintiff’s right to a recovery. To determine so grave a question as the one which might arise on this bill, if any other of the parties to it was the defendant, would be to pre-judge the case, without any sufficient warrant from the facts in evidence.

No error was committed by the County court, to the .prejudice of the defendant below, — and the judgment is affirmed.


text:
    THE UNITES STATES vs. FAY.
    1. The Tombeckbee Banlr is not authrrised by its charter to discount a note, unless it be expressed on the lace of the notef that the same shall be negotiable at said bank.
    Error to Mobile Circuit court.
    Assumpsit on note, tried before Taylor, J.
    The plaintiff in error, as the assignee of Stow, Ellis Co., declared against the defendant, on a promissory note of the following tenor:
    “ $1361 47-100. Mobile, April 4th, 1827.
    “Sixty days after date, we promise to pay to the order of Messrs. Stow, Ellis & Co., one thousand three hundred and sixty-four 47-100 dollars, payable and negotiable at the Bank of Mobile.
    “Biles & Fay.”
    The defendant pleaded—
    1. Non-assumpsit; ,2. Payment.

      On the trial, in the Circuit court of Mobile, the presiding judge sealed a bill of exceptions, which discloses that “the plaintiff offered the note described in the declaration, and proved that it had been discounted at the Tombeckbee Bank before its maturity, and that it had subsequently been transferred to the United States, by the bank, for a valuable consideration. The defendant proved that he was the legal owner, for a valuable consideration, of a paper in the following words, to wit: * Good for twenty-five hundred, eighty-three 25 ICO dollars, on demand, for value received. 20 May, 1826.
    Srow, Ellis & Co.’
    And that he held the same before notice of the discount of the note declared on by the plaintiff, by the bank, and before notice that it was the property of the bank. The plaintiff objected to this paper in off set, on the ground, that the note declared on, was not such an one as entitled the defendant to any off set on any account whatever: the court overruled the objection, and permitted the paper to be read to the jury, and allowed in off-set. To all which the plaintiff,”&c. excepted, &c. Andjudgmennt having been rendered against the plaintiff, a writ of error is prosecuted to this court for its revision.
    Hopkins, for plaintiff in error.
    Stewart, contra.
   COLLIER, C. J.

It will be observed the note sued on, is not, in express terms, made negotiable at the Tombeck-bee, but at the Mobile Bank. Had the note been discounted by the latter bank, there could be no doubt, but the off-set offered by the defendant, would have been inadmissible; or had a writing been simultaneously executed by the defendant to Stow, Ellis & Co., showing the intention of the parties, that the paper was to be put in market, all sets-off against a holder, who acquired it in the regular course of business, would have been waived. Thus far, the case of Emanuel vs. Atwood, (6 Porter’s Rep. 384,) is directly in point. Whether the case at bar comes within the principle of that decision, we need not enquire, as we shall presently see, that the admission of the defence by the Circuit court, if erroneous, was an error by which the plaintiff could not have been prejudiced.

By the third section of the “ act to establish the Tom-beckbee Bank,” &c. it is enacted “that if any person or persons shall be indebted to said corporation, as maker or endorser of any note, bill, or bond, expressly made negotiable and payable at said bauk, and shall delay payment thereof, it shall be lawful for the corporation, after having given at least ten days notice thereof, and producing to the court before whom the motion is made, the certificate of the President of the Bank, that the debt is really and bona fide the property of the bank, to move for ■judgment and the award of execution, against such debt- or or debtors, his, her, or their heir, or heirs, executors, or administrators, in any court of record within this territory : Provided always, that if the defendant or defendants shall appear and contest the claim, the court shall instanter empannel a jury to try the issue, and thereon give judgment accordingly: And provided, also, that no note, bill or bond, shall be negotiable at said bank, unless it shall be expressed on the face of such note, bill of bond, and all debts from the said corporation, by bond, bill, note or otherwise, to any individual, or body corporate, may be sued for and recovered in like manner”— (Toulmin’S Laws of Ala. 44.)

It has been argued for the defendant, that the second proviso of this section, clearly inhibited the Tombeckbee Bank from discounting the note which the present action was brought to recover — that the bank did not acquire the legal title by its purchase, and consequently, could not make the plaintiff the legal proprietor of the note.

For the plaintiff, it was insisted that the proviso, When correctly interpreted, does not confine the discounts of the bank, to paper made negotiable there in totidem ver-bis, but is Only intended as a denial of the summary remedy provided by the first part of the section, on such paper as does not express on its face, that it is there negotiable.

If the argument for the plaintiff is well founded, the proviso must be quite unnecessary, for, from what precedes it, it will be seen that the remedy by notice and motion, is only given where the note, bill or bond, is expressly made negotiable and payable at the bank. It is a cardinal rule in the construction of statutes, that they must be so interpreted, that if it can be prevented, no clause, sentence or word, shall be superfluous, void or insignificant — (Dwarris on Statutes, 658.) We think it entirely practicable, to give effect to the entire section, including its provisoes, without the rejection of any term as unmeaning. In truth, it speaks its own meaning, with so much clearness as to leave but little room for the application of the rules of interpretation. The proviso was evidently intended to declare what description of paper the bank might purchase by an advance of money. The word “ negotiable,” as used in the proviso, means “that maybe passed by assignment or endorsement, to vest the property in the bank” — (2 Bouvier’s Law Dic. 169) — and the term “ discounted,” as employed in the bill of exceptions, signifies “an advance of a sum of money, less than that expressed in the note, on. the payee’s transferring the title to the same to the bank. The act of discounting, was then in derogation of the charter, and inhibited by it, so that the bank did not acquire a legal title in the note, and consequently, could make no transfer, which would invest its assignee with the right to maintain an action.

If, from aview*of the charter in all its parts, the intention of the Legislature appeared to be adverse to the conclusion we have stated, we should endeavor to give effect to that intention, if it were possible, without doing too great violence to the language employed. But we cannot discover that a literal interpretation of the second proviso is opposed by any thing found in the act, and, judging by the acknowledged rules for the exposition of statutes, we cannot say that the Legislature intended any thing else, than they have there said.

We have said that the plaintiff, claiming title through the bank, could not recover in this action; because, the bank never having had the legal property in the note, could not transfer it to the United States. It is, then, clear, that the plaintiff was not injured by the allowance of the off-set by the Circuit court, and therefore, whether the decision of that court was conformable to law, is entirely immaterial.

That the Tombeckbee Bank might, under some circumstances, have acquired an equitable interest in the note, we think more than possible — and only determine, that it could not have “ discounted" it, according to the sense in which that term is understood in banking operations.

The result is, that the judgment must be affirmed.


text:
    FORD vs. THE BANK OF MOBILE.
    1.In a proceeding against defendants, on a notice from the bank, the judgment must shew that the court had jurisdiction.
    Error to Mobile Circuit court.
    Proceedings on a notice from the bank. Judgment for plaintiff below.
    There were three several cases between the same parties, brought up by writs of error, to which the subjoined opinion is applicable.
    The errors assigned were—
    1. That the evidence of the note set forth in the record, is not such as gave the court jurisdiction of the motion;
    2. That the bank had no right to sue in a summary manner, upon the note described in the record;
    3. That the bank did not make the motion on the day specified.
    J A. Campbell, for plaintiff in error.
   ORMOND, J.

This was a motion in the court below, by the bank, against the plaintiff in error, as endorser of a promissory note.

The judgment does not show, that the note on which the motion is founded, was negotiable at the Bank of Mobile: it does not, therefore, appear that the court had jurisdiction. This fact does appear in the notice; but as no action of the court was had upon it, it cannot be considered as part of the record. The judgment must therefore be reversed, and the cause remanded for further proceedings, on the authority of the cases of Jos. Bates, jr. vs. The Planters’ and Merchants’ Bank, and Henry S. Levert vs. The Planters’ and Merchants’ Bank.


author: GOLDTHWAITB, J.

text:
    BROWN vs. LIPSCOMB.
    L Where the title of a mortgagee becomes absolute by a forfeiture of the condition, a subsequent payment cannot, at law, divest him.
    2. A stranger cannot be permitted to question the validity of the sale of trust propeity.
    3. Adverse possession of a personal chattel, may be wrongfully obtained, and depends upon the bonafides of the claim, and is therefore a question of fact, for the consideration of the jury.
    Error to Marengo Circuit court.
    Detinue — tried before Chapman, J»
    Brown mortgaged a negro to one Pistole, in eighteen hundred and twenty-nine, for five hundred dollars, to be paid ,in three years. The money was not paid, and in eighteen hundred and thirty-two, Pistole assigned the mortgage to one Calpe. Calpe executed a deed of trust pf the negro, in eighteen hundred and thirty-four, to Nathan Lipscomb, as trustee, to secure the payment of ,a sum of money to the firm of William C. Lipscomb & Co., with power to sell the slave, and pay W. C. Lipscomb & Co., and if there was money arising from the sale over after paying the firm, to pay it to plaintiff, in extinguishment of a debt he held against Calpe. This deed was attested by defendant below, as subscribing witness. The services of the slave were worth one hundred and fifty, or two hundred dollars per annum. After the execution of the deed of trust, the slave went into possession of Wm.- C. Lipscomb. Before the sale which was- made by the trustee, the slave was taken possession of by the defendant, who claimed him as belonging to his children, and publicly forbade the sale. Plaintiff bought the' negro at the sale, and took a bill of the sale of the trustee.
    On this evidence, the defendant moved the court to' charge the jury, that the hire of the slave, while in possession of Pistole and Lipscomb, discharged the mortgage, and that if at the time of the sale, defendant held the slave adversely, plaintiff could not recover. This- the court declined, and charged, that the hire could not be taken in account in this suit, and that if defendant acquired possession, as a trespasser, or fraudulently, his possession would not avail him, and plaintiff was entitled to a recovery. The charge*' of the court was assigned as erroneous. Yerdict and judgment for plaintiff below,

      Erwin, for plaintiff in error.

      Murphy, contra.
   GOLDTHWAITB, J.

Three points have been made by the counsel for the plaintiff in error, which, he insists, are warranted by the evidence stated in, the bill of exceptions.

1. That as the value of the services of the slave, while in the possession of the mortgagee and his assignee, was shown to amount to more than the principal and interest of the mortgage debt, it was extinguished by operation of law. The title, therefore, re-vested in the mortgagor, and he was entitled to re-take and retain the slave, against the mortgagee and his assignees.

2. That the sale under the trust deed, having been made when the slave was absent, and not within the custody or power of the trustee, so that no delivery could be made, — it was for this reason inoperative and void.

3. That as the plaintiff in error was in the adverse possession of the slave, when the sale was made under the trust deed, claiming to hold him in spite of and adversely to the trustee, and not under any title connected with the mortgage or trust deed, the sale was illegal and void, as against public policy, it being, under these circumstances, but the transfer of a right of action.

These positions will be severally examined in the or-, der they are stated.

1. The validity of the mortgage from Brown to Pis-tole, was not disputed on the ground of usury in the Circuit court; but the argument is, that it is a harsh and un-conscientious contract, which neither equity nor law will enforce to a greater extent than the interest of the sum lent or secured, and that the value of the services beyond this, must be applied in extinguishment of the original debt. We think it may be inferred from the evidence, that the mortgagee was placed in possession of the slave, when the mortgage was executed, but we cannot infer what time the precise terms of the contract, in relation to the nature of the services, if any, was made, in point of fact. If there was no stipulation, the law would annex the condition to the mortgage, that the mortgagee should render a due account of all the income, profits and advantages — (Story on Bail. 232.) If it was stipulated, that the services should be set against the interest, it would be a circumstance from which an usurious intent might be inferred, if the then value was greatly more than the accruing interest, and it is very questionable whether equity would not interfere, to relieve against such a contract, (although not usurious in fact,) so as to compel a just account of the profits — (Story on Bail. 233.) By the contract of mortgage, the title was vested in the mortgagee, subject to be divested by the payment of the money, on or before the day stipulated. On the failure to pay, the title became absolute, and the mortgagor had nothing but an equity of redemption,'the possession having accompanied the mortgage.

At the period fixed for the payment, the value of the services, did not amount to the sum due, even if a court of law was competent to ascertain and settle the account between the parties, and no subsequent payment could, in law, have the effect to divest the title of the mortgagee, become absolute by the forfeiture of the condition, or revest it, in the mortgagor — (Story on Bail. 197.) These principles were recognised by this court, in the case of Hamer vs. Harrell, (2 Stew. &Por. 323,) which is decisive of this feature of this case.

2. It is not perceived, that the- rules governing sales by trustees, should be different from those which obtain with respect to all other persons. It may not be denied, that any circumstances of unfairness attendant upon a sale by a trustee, might be enquired into by competent parties in a court of equity, and if ascertained to be irregular or unjust, it might be set aside; but there is no rule which requires a sale to be public, or accompanied by delivery, peculiarly applicable to a trustee. In the present case, it appears that the sale was made with the assent of the grantor in the deed, and the cesluis que trust are not heard to complain. The plaintiff in error is a mere stranger to this proceeding under the trust deed, and cannot be permitted to question the validity of the sale, on the ground that the slave was not present, or delivered, when sold.

3, The remaining point to be considered, is that which relates to the adverse possession held by the defendant, when the sale was made; and before entering on its examination, it may not be improper to recapitulate the facts disclosed in connection with this point in the case. Shortly before the day appointed for the sale of the slave, he was taken from the possession of the trustee, without his knowledge or consent, and on the day of the sale, was in the possession of the plaintiff in error, who claimed him as belonging to his children. At the time of the sale, the trustee, cestui que trust, and the defendant in error, were publicly notified by the plaintiff in error, that he forbid the sale; — whether these persons were also informed that the slave was in his possession, under claim of title adverse to the title of the trustee, is not stated, but is perhaps properly inferrable from the other facts which we stated in connection with the sale. There were certainly facts from which a jury might infer an adverse possession, as it is certain the party did not claim to hold the slave by any title derived from, or having any connection with the mortgage or deed of trust. But it is equally certain, that the jury might have inferred, that the taking of the slave was tortious and wrongful, though taken under claim of title. The case, therefore, presents a different state of facts from that of Goodwin vs. Lloyd, (8 Porter, 237,) in which this court decided, that possession taken and held, under color of title, was sufficient to render a subsequent sale by the person having title, inoperative and void. It is clear, that the possession of the slave was not with the trustee: it is also clear, that no right of possession was claimed through him, but the slave was held adversely, and in spite of him. It cannot be denied, we think, by any one, that he had nothing but a right of action, if the taking was not a larceny, as there was a denial and disclaimer of all right in the trustee.

The statute of limitations would commence running from the time of such a denial and disclaimer, and it would rebut every presumption of the possession being held under, or in accordance with the actual and true title. There may be, and doubtless are cases, in which a denial or disclaimer of a title would not avail a party in possession of a chattel, as, where it was held by a guardian, bailee or tenant — in these, and the like cases, the title, though denied and disclaimed, could never be questioned, until the possession itself was actually restored to the person from whom it was derived. It may be admitted, in relation to the possession of. chattels as well as lands, that the ordinary presumption to be drawn from an entry or seizure without title, would be held to be in subordination to the title, but this would always be a mere presumption, which would be rebutted by actual proof of a disclaimer, o'r actual conversion, known or communicated to the holder of the true title.

This rule is perfectly familiar when applied to real estate, and is supported by numerous decisions — (Brant vs. Ogden, 1 John. 156; Jackson vs. Camp, 1 Cowen, 605; Jackson vs. Sharp, 9 John. 164; La Frombois vs. Smith, 8 Cowen, 589; Livingston vs. Penn. Iron Co., 9 Wend. 511.) But the cases are very rare in which it has ever been necessary to apply the rule to personal chattels. This has probably been owing- to the inferior value of property of this description, when compared with real estate, and from the fact, that delivery almost always accompanies the transfer of the title. In two of the States which, hold the same description of property as that which is the subject of this suit, similar questions have arisen to that which is now presented, and the courts of those States have held the rule of law equally applicable to personal, as to real ‘estate — (Stedman vs. Reddick, 4 Hawks, 29.; Stagdale vs. Fugale, 2 Marshall, 136.) Nor is the doctrine of these cases disputed in any decided case in this country, so far as our researches have enabled us to ascertain, except the case of The brig Sarah Ann, (2 Sumner, 206.) In this, even, it is questionable whether the learned judge intended to be understood as denying the application of the general rule to personal chattels. His observations are these: “the sale is not, under such circumstances, (a sale, when the vendor was out of possession,) the sale of a right of action, but is a sale of the thing itself, and good to pass the title against every person not holding the same under a bona fide title, for a valuable consideration, without notice, and a fortiori against a wrong doer.” Now, it seems to us, that the conclusion which the learned judge draws, is not warranted by the premises, for if it is admitted that the title cannot pass, if the possession is held adversely by one claiming bona fide and without notice, may not the claim of a wrong doer be equally bona fide and without notice ? If possession will defeat a sale, when held under a merely colorable title, why should the right be different, when that possession is acquired by a trespass'? This is not, in our opinion, the true foundation on which the rule rests, but it grows out of the policy of the law, which will not permit one to litigate a question, which properly belongs to another. The sale and purchase of rights of action, is the evil to be prevented, and it is equally the sale of such a right, whether the possession is held under color of title, or under a tortious and wrongs ful taking, accompanied with a bona fide claim of title; If an owner of a personal chattel is not in the actual possession, but it is withheld by another, and he is ignorant of the fact, and under such circumstances, parts with the title, it is conceived that his purchaser would succeed to his rights, but if the owner is dispossessed by one, bona fide claiming title, and the fact of the dispossession and bona fide claim is known to, or communicated to him, his title is changed into a chose in action, which cannot be conveyed or transferred to another.

As the bona fiies of the claim, and its assertion with the knowledge of the seller, as well as the actual posset sion, are necessary to be ascertained, before it could be determined to be adverse, the question is one proper in all cases, for the consideration of the jury — (Jackson vs. Joy, 9 John. 102; Clapp vs. Bromagham, 9 Cowen, 530.) The court cannot, in any case, pronounce that a case of adverse possession is made out, as it depends, as before Stated, on the bonafides of the claim of title. When this is ascertained, and a sale has been made With a knowledge on the part of the true owner, of such actual possession and claim by another, any sale made by him, Will be inoperative and void.

The charge requested by the counsel for the plaintiff in error, assumed the question to be determined by the jury, but the charge actually given' was erroneous, and Well calculated to mislead the jury from the true question before them, on the evidence in proof. That was not Whether the defendant below • had acquired the possession by fraud or violence, but whether, at the time of the sale, the possession was held by him under a bona fide claim of title, known to the true owner. If the latter was the case, then the sale was inoperative, and the defendant below could not be compelled to litigate his title with the assignee, of the right of action remaining With the owner of the title.

Our conclusion is, that the Circuit court erred in the instructions givén, and the judgment is reversed, and the case remanded.


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    MINTER vs. BIGELOW & CO.
    1. Where a sheriff doubts whether a defendant in execution is the rightful owner of personal property in his possession, it is his duty to dimaod a bond of indemnity of the plaintiff:— otherwise,- in a proceeding against him- for a failure to make! the money,- the burthen will be cast upon him,- by shewing that the property was in reality not liable.
    Error to the Circuit court of Dallas.
    Notice to the sheriff.
    This was- a proceeding in the Circuit court of Dallas,against the plaintiff in error, as the sheriff of that coun-ty, under the statute, for failing to make the money on a writ of fieri facias theretofore placed in his hands, at the suit of the defendant in error, against John G. Abrams and another, which it was suggested might have been made,by the employment of due dilige ice. An issue was made up and submitted to the jury. On the trial, the presiding judge sealed a bill of exceptions, from which it appears that the main question before the jury -was, whether two slaves, in the possession of the defendant in execution, (John G. Abrams,) were the pro¡ erty of himself, or of his father-in-law. There was evidence tending to prove that Abrams had no other property in his possession, and that he owned none, unless the slaves belonged to him.— There was no proof that the plaintiff in error made any effort to collect the money of Abrams, on the execution, but that it was returned, “ no property found in my county.” The judge, in his charge to the jury, instructed them, that it was incumbent on the plaintiff in error, to show that the defendant in execution had no property during the life of the execution, out of which the money could have been made, or that he had used due diligence to find property. The jury found a verdict against the sheriff, who sues a writ of error to this court, and here assigns for error — That the judge of the Circuit court erred in his instructions to the jury, as shown by the bill of exceptions.

      J. B. Clarke, for plaintiff in error.

      Edwards, contra.
   COLLIER, C. J.

If the instructions to the jury could he considered as the operation of abstract legal propositions, we should not hesitate to conclude, that the Circuit court misapprehended the law. A sheriff, when charged with a neglect of duty, is not bound to acquit himself of fault, by proof, until a prima facie case is made out against him. The law accords verity to his official return, until its falsity is shown, or such a state 'of facts proved, as authorises the inference that it is not true. When, therefore, a sheriff returns on a fieri facias, that there is no property to be found in his county, out of which it can be satisfied, it is incumbent on the plaintiff in execution, if he would gainsay it, to show that the return is presumptively false. This may be done by showing that the defendant in execution is in possession of property, and if he is not the owner of it, or it is not subject to the payment of his debts, it will devolve upon the sheriff to show, by proof, that such was its condition. He will, however, be relieved from this burthen, where the title to property was doubtful, if lie has used the precaution, while the execution was in his hands, to require a bond of indemnity of the plaintiff, who has declined complying with the requisition.

Let us consider the charge to the jury, in reference to the facts shown by the bill of exceptions. It appears, that the defendant in execution, (Abrams,) had property in his possession, thoug.i it is nut expressly stated, yet we suppose, more than sufficient to satisfy it. The title to this proyerty was doubtful, yet the plaintiff in error required no bond of indemnity, but took upon himself to say, that it was not liable to the execution of the defendants in error. This being the true state of the case, the law required, that as the possession by the defendant in execution, of the slaves was shown, it would be presumed that they were his property ; that as the plaintiff in error had impliedly affirmed the rev’erse to be true, it devolved upon him to make good Ais return, by proof. If, however, he was mistaken as to the liability of the slaves to the debts of the defendant in execution, he might still have discharged himself, by showing that they were claimed by another person, or that the title was otherwise doubtful, and that a bond of indemnity' was demanded of defendants in error, and not given. The charge to the jury, we think, states the law, substantially as we have laid it down, and is consequently free from exception.

The judgment of the Circuit court is for the amount of the execution, with damages, interest and cost, down to the time of its rendition.' The plaintiff in error is only liable for the amount of the execution, with interest, on the judgment against Abrams and another, to the time of its issuance, and damages and costs — (Bondurant vs. Lane, at this term.)

The judgment will he here amended accordingly, at the costs of the plaintiff in error.


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    BONDURANT vs. LANE.
    1. Upon a suggestion against a sheriff, that the money could have been made on an execution, by due diligence, the measure of damages, is the amount of the judgment, and interest thereon, to the time of the issuance of the execution, together with ten per cent, on that amount.
    Error to Marengo Circuit court.
    Notice to the sheriff.
    This was a motion against the sheriff and his sureties. The defendant in this court, (plaintiff below,) suggested that the money could have been made on the execution, by due diligence. An issue being made up to try the fact, the jury found for the plaintiff below, and the court rendered judgment against the sheriff and his sureties, for the amount specified in the execution, together with interest thereon to the rendition of the judgment, and also ten per cent, damages on that amount.
    Murphy, for plaintiff in error.
   ORMOND, J.

The only assignment of error necessary to be noticed, is the one which questions the liability of the sheriff, for interest which may have accrued after the execution came to the sheriff’s hands.

In cases of this description, the act declares, that the sheriff and his sureties shall be liable “for the sum of money specified in the execution, together with ten per cent, on the amount of said execution, as damages, and also the costs of suit.” This is a penal statute, and, according to well established principles, cannot be extended beyond the fair import of its terms. The amount speeU fied in the execution, cannot include the interest which may have accrued up to the time of the trial of the motion against the sheriff, unless we extend the statute, by construction, beyond its letter.

The terms employed by the Legislature, may, we think, include the interest which had accrued at the time the execution was issued, which period will always appear from the writ itself; and as the execution, either in its body, or by the endorsement of the clerk, will show when the judgment was rendered, the judgment, and the interest accruing since its rendition, is the amount specified in the execution. Had it been the intention of the Legislature, not to charge the sheriff with any interest, after the rendition of the judgment, it is not probable they would have referred to the execution, as a criterion of the amount for which he was to be liable, but would have taken the judgment itself, as the measure of dama-' ges. Had they designed to charge the sheriff with all the interest accruing at the trial of the motion, the terms, amount specified in the execution, would not be very appropriate to signify such intention.

No injury can accrue to the plaintiff, from this construction of the statute. It is always in his power to make the motion at the return term of the execution, when he will, under the construction we put on the statute, recover the amount of his judgment and interest, and six per cent., in addition, as damages: a contrary construction would enable plaintiff to lie by for years, and saddle the sheriff, not only with the amount of the judgment and interest, but with ten per cent, on such aggregate amount. We cannot, in a cage- of this character, by construction, enlarge the penalty.

Let the judgment of the court below be reversed, at the cost of the plaintiff in error, and judgment be rendered in this court, for the amount of the judgment of the court below, and interest thereon, to the time of the issuance of the execution, together with ten per cent, on that amount, as damages.


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    THE STATE vs. MURPHY.
    1. The venire to the grand jury, and the names of the grand jurors, are a part of the caption, and need not be introduced in an indictment.
    Error to Mobile Circuit court.
    This was an indictment for selling spirituous liquor
    i
    to a slave, without the permission of the owner.
    A motion.was made .to quash the indictment in the court below, because,
    1. The indictment does not show that the grand jury who found the bill were then and there empanneled, charged and sworn, thereby omitting a venire to the jury;
    2. That the indictment does not contain the names of the grand jurors.
    Stewart, for plaintiff in error'.-

      Attorney General, contra.
   ORMOND, J.

The objections to the indictment cannot be sustained. The venire to the grand jury, as well as the names of the grand jurors, constitute a part of the caption, and need not be introduced in the indictment. In the case referred to, of The People vs. Gunnsey, (3 Johnson’s Cases,) the objection was to the caption, not to the body of the indictment.

The judgment is affirmed.


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    ROWLAND vs. LADIGA.
    I. The title of an Indian reservee to his improvement, did not vest, under the treaty with the Creek tribe, until the reservee was located by the agent of the United States.
    Error to Benton Circuit court.
    Trespass to try title, tried before Booth, J.
    Defendant in error brought her action of trespass, to Irecover a half section of land, which she claimed as her reservation, under the treaty with the Creek tribe of Indians, of the 24th March, 1832. Defendant demurred to the declaration, and also plead the general issue. Defendant exhibited in evidence, a patent from the United States, for the land in question. Verdict and judgment for the plaintiff below.
    On the trial, the court charged, that “if plaintiff was the head of a family at the time of making the treaty, and entitled to her reservation, as such, which reservation included her improvement, (the land sued for,) the patent passed nothing, the title having vested in her by operation o,f the treaty, of which she could not be divested by any subsequent act of the United States government, or its agents.”
    This charge of the court was assigned for error.

      Cochran, for plaintiff in error.

      Martin, contra.
   GOLDTHWAITE, J.

The omission to state in the bill of exceptions, such of the facts in evidence before the jury, as might enable this court to determine the propriety of the instructions requested, prevents us from expressing any opinion on them, — nothing being shown to relieve them from the character of mere abstract propositions.

In this position of the case, we should, so far as the bill of exceptions is concerned, deem it our duty to decline any response to the questions presented, if the Circuit court had not also stated an affirmative charge, as well as its refusal to give the particular one demanded.1 This refers to that part of the bill of exception, which informs us that the Circuit court “ charged the jury, if the plaintiff was the head of a family at the time of making the treaty, and entitled to her reservation aS such# which reservation included her improvement, (the land sued for,) then, the patent passed nothing, the title having vested in her by Operation of the treaty, of which she could not be divested by any subsequent act of the United States government, or its agents.” This charge enables Us to review its correctness, in conformity with the? rule laid down in the case of Pedin vs. Moore, (1 Stew. & Por. 71;) though it would have been more satisfactory if the evidence was disclosed, as greater precision might then be given to the decision, than can be, when the court remains uninformed of the exact facts, to which the charge given was intended to l e applied.

The charge of the Circuit court assumes, that a title' to the land in question, vested in the defendant in error; by the operation of the treaty, if she came within the class of persons described as heads of families in the se--cond article, and if the land sued for included her improvements. We think such a construction of the treaty cannot be supported, and that it is at variance with many of its provisions. That the individuals who were the heads of families, have a just claim on the government ■ of the United States, to allot to them each a half section of land, according to the intent and spirit of the second article, cannot be questioned: but there is'nothing in the terms used in it, which authorises the belief, that a title of any description whatever, vested by the mere operation of the treaty. So-far as the present question is concerned, this is evident from the provisions of the second article, which directs “ that a census of these persons (heads of families,) shall be taken under the directions of the President, and the selections shall be made so as to include the improvements of each person within his selection, if the same can be so made, and if not, then all the persons belonging to the same town, entitled to selections, and who cannot make the same, so as to include their improvements, shall take them in one body, in a proper form.”

These expressions show conclusively, that the ascertainment of the individuals entitled, was to be confided to an agent of the government, appointed by the President, and that the respective Indians were to be located on the lands under his directions. It would be impossible, otherwise to ascertain what portions of the ceded lands could with propriety be sold, as the government would be continually in danger of invading on the rights of the Indians, if those particular lands were not ascertained and allotted. It is equally clear, that many Indians might have made improvements on the same half section of land, and in such a case, no rule is provided by the treaty, to determine the priority of right. Again: the government does not stipulate that the Indians shall b.e invested with any other than a mere possessory right, coupled with' a power of sale, until after the period of five years, and then only in the event “ of their being desirous of remaining.”

In the case of Jones and Parsons’ heirs vs. Inge and Mardis’ heirs, (5 Porter, 327,) and Fipps vs. McGehee et al. (id. 413,) the nature of those titles, derived under the treaty is very fully examined, and they are pronounced legal titles, capable of sustaining an ejectment, and of being transmitted to au approved purchaser. But these decisions turn mainly on the ground, that the treaty stipulates that the Indians shall have a possession of the lands located to them, and provides that the government shall put them in possession. In the latter case, the court holds this language: “ To deny to the peaceful action of courts of law, a power which has been claimed to be exercised, on a summary application by an executive officer of the government, would present a solecism, which we are not disposed to admit.” Now, under the treaty, it is clear that the right of possession is consequent alone on the location, on the recognition of the right of the Indian by the government. Until then, he has no title: he has, indeed, the same claim as all others on the government, that the utmost good faith shall be used toward him, but he can compel the government to locate him on the land to which he may be equitably entitled, or recover its possession from another, on the mere strength of such a right. If the United States should so far forget the obligations of good faith, as to grant these lands to other persons, as the title remains with them, the Indians are remediless in courts of law. Such a supposition can never be admitted, however, and if wrong, as done in individual cases, it must arise from the want of correct information, or because the necessary means have not been taken by the Indian to establish his claims.

We do not intend to intimate any opinion, whether a patent wrongfully issued could be collaterally impeached. Such a question as this does not arise on this record, and from the generality of the terms used, wé are compelled to presume, that a patent lawfully issued was shown in defence. This being the case, the title of the defendant in error, if dependent alone on the treaty, and unascertain-ed or unrecognised by the United States, by the act of location, was not of sufficient dignity to prevail in a court of law. We thus limit the expression, not that we entertain the belief, that an application to a court of equity would be more appropriate, but because, in cases of this nature, necessarily affecting classes of persons, we do not deem It prudent to go beyond the precise question presented.

It is not necessary to examine the question supposed to be raised on the demurrer to the declaration, further than to determine, that the first count is liable to no valid objection, and consequently, would sustain the decision of the Circuit court, even if the second count was defective in substance.

For the error in the charge, as given, the judgment is reversed, and the case remanded.