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JANUARY 1830. Brandon the plaintiff in execution and the claimants, was

had al March term, 1828, when a verdict was found for Brandon

the claimants. Snows and By a bill of exceptions taken by Brandon, it appears Cunningham. that before the jury he proved his judgment, execution,

and levy, and that the slave was in Wyzer's possession. The claimants proved the existence of an older judgment against Wyzer, in favor of one Bullock, and that an execution had issued under it, which was produced with the following return: “Levied 16th January 1924, on one house and lot, and one negro woman named Joicy.

W. Y. GLOVER. Sheriff.“Also one negro boy named Jacob, taken as the property of J. Wyzer, at the suit of J. Bullock, and the said boy was sold, the 2d of March, 1824, to Snows and Cunningham. I certify that from the word “Joicy," the other words are added by leave of the Court, this 13th of October 1827. The words “16th January, 1824,” are also added by leave of the Court as an amended return.

"W. Y. GLOVER.” The former sheriff Glover, deposed that he did in fact sell the negro at sheriff's sale under this execution to the claimants for $255, which they paid him, and that he delivered him to them, and gave them a bill of sale. The bill of sale was not produced, nor was it recorded, but its loss and contents were proved. It was further proved that in a short time after the sale by the sheriff, the slave went into the possession of Wyzer, and remained in his possession two or three months, without any stipulation for loan or hire, express or implied; that after that period the claimants hired the slave to Wyzer at $20 per year, and that this was a reasonable rate of hire; that the claimants had regularly paid the taxes for him; it was also proved that Wyzer was indebted to the claimants at the time of the sale, in a small amount. There was no proof produced of any notice or advertisement of the sale, nor that ten days notice was given, or any other time, nor was the place of sale proved. On this proof the counsel for the plaintiff in execution requested the Court to instruct the jury;

1. That it was necessary the claimants should prove that legal notice of the time and place of sale had been given according to statute; and that the sale had taken place at the appointed time and place, and in the manner required by the statute.

2. That the right of Brandon could not be prejudiced or affected by the amended return of the former sherifi,

Snows and

on Bullock's execution, when those rights had accrued JANUARY 18304 anterior to the making of the amendment.

Brandon 3. That the slave going into the possession of Wyzer, a short time after the sale, and remaining there two or three

Cunningham months without any stipulation of loan or hire, when the relation of debtor and creditor existed between them, rendered the transaction fraudulent.

The first instruction the Court refused, and instructed the jury that they were bound to presume that the sheriff had done his duty, and that all the requirements of the law had been observed by him, unless the contrary was shewn by the opposite party. The second instruction was also refused; and the Court charged the jury that the sheriff's amendment had a retrospective effect, and related back to the original return, and had the same effect on the rights of all parties, as if the amendment formed a part of the original return. The Court also refused to give the third instruction requested.

The charge given by the Court to the jury was also excepted to on account of its form, and the language employed; these expressions having been used, "If you believe the evidence introduced by the claimants, then is the case made out for them."

Brandon, the appellant, assigns in this Court for error, the decisions made as above stated.

BARTON and STEWART, for the appellant.

CRABB and P. N. Wilson, for the appellees.

By LIPSCOMB, CHIEF JUSTICE. The plaintiff in error supposes the Circuit Judge to have erred in refusing the instruction first prayed for, and in giving the instruction he did in relation thereto. In some cases it has been holden, that when land has been sold under execution, the advertisement required by statute must be proven, and that it is an essential muniment of title to the purchaser; but this rule has never been applied to personal property; no paper evidence is necessary for the conveyance of personal property; title to real property is always supposed to be sustained by documentary evidence: perhaps this distinction sufficiently shews the reason of requiring proof that real property had been advertised, while it is not required of personal property.. We think then that the charge of the Judge was right.

Snow and

JANUARY 1830. We do not however decide that such proof would be ab.

solutely necessary, even in the case of a sale of land. Brandon

The second crror assigned is, that the Court charged

the jury, that the amended return made by the sheriff Cunningham.

at the trial, on the execution under which the defendants purchased, related to the time when the original return was made. If the sheriff had sold the slave levied on and neglected to make the return on the execution required by statute, such neglect surely could not operate prejudicially to the purchaser; and the sheriff, as a ministerial officer, would be so far protected, as to be permitted to amend his return so as to make it true, at any time.

The third error assigned is in relation to the possession of the property remaining with Wyzer. We believe that there was no error in refusing to give the charge prayed. There had been a great contrariety of decision on the question, whether the property remaining with the vendor after an absolute sale was fraudulent per se, or only a badge of fraud; but under the most rigid construction, a purchase made at sheriff's sale was an exception to the rule of the possession being fraud per se; and the law is now settled, that in no case, does the mere fact of possession remaining with the vendor constitute fraud, but that it is only a badge of fraud, from which the jury must draw the inference of its existence, if not rebutted or explained.

Exceptions were taken to the terms used by the Judge in his charge to the jury, such as “if they believed the evidence offered by the claimants of the property, then is their case made out.” It would be impossible for this Court to say whether there was error in this charge or not, unless we were informed what testimony had been introduced by the claimants. If the record does not shew enough to satisfy this Court that the charge was erroneous, we cannot presume such error. It is certainly competent for the Judge to sum up the testimony, and nothing can be fairer, or more in the sphere of his duty, than for him to tell the jury, that if they found such facts proven, that the law was in favor or against a party plaintiff or defendant. We believe there is no error error, and that the judgment must be affirmed.

JUDGES CRENSHAW and Collier not sitting; the former having presided below, and the latter having been of counsel in the cause.

JANUARY 1830.

SAYRE V. LUCAS.

A note under seal made payable to A. B. or bearer, is not transferable by

delivery, so as to enable the bearer to maintain an action on it in his
own name.

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In an action of debt, in Montgomery Circuit Court, W. Sayre declared against W. B. Lucas, on a specialty, relying on his title there to as bearer. Lucas craved oyer of the instrument and demučed; on the ground that such an instrument was not transferable by delivery, so as to enable the bearer to maintain an action in his own name. The instruments set out on oyer was as follows:

“$354 20. On or before the thirtieth day of December 1825, we or either of us promise to pay Jonathan Battelle and George Wilkinson, agents of the Alabama Company, or bearer, the sum of three hunder and fifty-four dollars 20-100 for value received. Given under our hands and seals, this sixteenth day of November, in the year 1822.

W. B. LUCAS, (SEAL.]

M. ANDREW, (SEAL.]” The case was tried at March term 1828, when the demurrer was sustained, and judgment was rendered for the defendant, Judge Wute presiding.

The error assigned by Sayre, the appellant in this Court is, the decision made on the demurrer.

a 3 Burrows THORingtoy and Gordon, for the appellant. The 1855-1516. instrument was not at common law a writing obligato- 3 Term Rep. ry, it is an instrument of modern use, and intended by

Raymond, the makers to pass and be negotiable without assign- 180. 1 Bur. ment. Almost every State in the Union, and our State rows. 452,4 among

the rest, has declared all instruments for the pay- 19 Johnson ment of money, negotiable. The intention of the makers 399. 7. Cowen and the policy of our law should prevail, rather than the Cases 259, antiquated notions and rules of the common law, restrain- ? Cain. 149. ing the negotiability of choses in action, as being injurious 59. I Crauch to the poor, &c. especially as instruments of this class 389. 2 John.

161. Chitty were not then in use. a

on Bills 64.

3 Barn. and GOLDTHWAITE argued for the appellee.

Cress 15, 10
Com. Law

Rep. 15. 1. By JUDGE CRENSHAW. The only question to be Mason 264. decided is, whether the bearer, who is not the obligee i Coke 3-a.

. 4 Joba. 55.

177, 1 Lord

Lucas.

a

JANUARY 1830. named in the writing obligatory or single bill, can main

tain an action in his own name, against the obligor? Sayre

On this question there has been heretofore a diversity of opinion, and it affords us some satisfaction that a case now occurs in which the practice can be settled by a legal adjudication.,

I did believe that it had been settled by the decision in a Minor's Ala. the case of Howell and Smith v. Hallett,when this Rep. 102.

question was directly before the Court. In that case the declaration stated that the defendants, Howell and Smith, made their writing obligatory, payable to William N. Thompson or bearer, and which was transferred by delivery to the plaintiff Hallett. The judgment was reversed on the ground that the declaration concluded in assumpsit, yet some of the Judges were inclined to reverse on the ground that the bearer of a note under seal, not being the obligee or assignee, could not maintain an action in his own name against the obligor. It was then said, that by the law merchant, notes under seal were not negotiable either by indorsement or delivery, though like other choses in action, the assignment of them would be protected in equity, and would operate as a warrant of attorney to the assignee to sue at law in the name of the obligee, and recover to his own use.

If the judgment in the case of Howell and Smith v. Hallett was not decisive of the question now under consideration, the reasoning embraced in the opinion has a direct application, and I shall insist on its full benefit. I lay it down then as an incontrovertible proposition, that at common law, no chose in action was assignable, so as to authorize the assignee to sue in his own name; that by the law merchant, which was incorporated into the body of the common law, bills of exchange became negotiable; and by the aid of certain English statutes, inland bills, promissory notes, and checks on banks were also made negotiable; and that those are the only contracts or choses in action which are strictly negotiable at this day in England, and on which the assignee can maintain an action in his own

These positions are clearly 6 Page 4–11. illustrated in Chitty on Bills.

If then, writings obligatory or notes under seal are not negotiable or assignable at the common law, so as to authorize the assignee to maintain an action in his own name

against the obligor, if the action be at all maintainble, it cLaws of Ala. must be by virtue of our statute of 1812;c but that statute

name.

69.

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