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JULY 1329.



"How, then, can the Court assume on itself!o say that if the possession remains with the vendor, it is conclusive evidence of fraudulent intent, not to be controverted by any testimony to shew the fairness of the transaction?' It is contrary to the genius of our government, and against express legislative enactment, that Courts should encroach on the peculiar privileges of the jury, in determining on the facts of a case. A long course of practice in England has sanctioned such encroachments in her Courts. It is not unusual for the Judges there to arrest a cause from the jury, by declaring that the evidence offered is not sufficient to prove the facts averred and put in issue by the plea, and either direct a nonsuit, or order a subservient jury in the box lo return averdict, not on their own conviction of the truth, but according to the wishes of the Judge. Such assumptions of authority render the boasted trial by jury a mere farce. This is an evil that has, to some extent, crept into the judicial tribunals of our own country, from too close an adherence to English authority. Its influence has been irresistable in some of the States; and I can but think, with all due respect for the supreme judiciary of the United States, that it has no where been more perceptible than in Hamilton v. Russell. That decision is confessedly based on Edwards v. Harben, a foundation so frail that if it has not been overruled, it has at least been considered very questionable authority, in the very Courts where it was pronounced. This case, so often questioned, and so often departed from, is the foundation of all the State adjudications that support the same doctrine. In the case under consideration, it does not appear that the plaintiff in execution had been injured by the property remaining in the possession of Estell, nor does it appear that the debt had been contracted, and credit gained on the faith of that possession. If Hobbs had permitted his property to remain in the possession of Estell, without using some means to give publicity to his right, and an innocent creditor had been imposed on by the false colours it enabled Estell to hold out, his property in such case might have been subjected to the payment of another's debi, on the principles of the cominon law, and the soundest rules of morality.

The charge of the Court was so broad, that it woulă not even have admitted evidence that Bibh knew of the sale to Hobbs. It rests on the isolated fact, that possession re eining with the vendor, Estell, made the sale void. It should have been in the language of Lord Eldon, that Estell being

JULY 1829.



in possession, the law would presume that he was the owner, but that this presumption would give way to proof that he was not. The proof of the sale and subsequent hiring should have gone to the jury to determine whether the sale was made with a fraudulent intent or not. Courts can never exercise too much vigilance and zeal, in administering the laws for the preventing of fraud. But that zeal must not seduce them from their proper sphere of action. If sound policy requires that he who has once owned a chattel shall never have possession of it after he has sold it, by hire, loan or otherwise, it is a proper subject for the attention of another branch of the government. Courts should never undertake to distort the words of a statute, to effect any object, however salutary. If they do so, Legislation will be at an end, in the constitutional way, and the whole legislative functions will be swallowed up by the judiciary. The legislative and judicial departments have distinct duties to perform. The Legislature can alone make the law, and it is the exclusive privilege of the judiary to expound it. Let us then not tresspass on the rights and privileges of a co-ordinate department; but content ourselves with expounding what the law is, and not what sound policy requires that it should be.

Judgment reversed and cause remanded.

Judge Saffold having presided below, did not sit.
Judge Taylor not sitting.

See the case of Ayres v. Moore, decided in this Court at January Term 1330; and the case of Richards v. Hazard, at July Term, 1831.

JULY 1889.




In July 1819, P. as principal, with E. as security, gave their note payable in

six months to B. for $3000, to bear interest at five per cent a month. In March, 1821, B.without the consent of E. at the time, entered into a new contract with P. who secured the payment of $3500 in one year and $-1000 in two years, by a deed of trust on twelve negroes, and B. agreed to remit the remainder on said sums being paid. P. absconded with the negroes. In January 1822, E. under the influence of alarm and mistake as to his legal rights, consented to give B. his notes for $6,600, and received an as. signment of the original note and deed of trust: both believing that five per cent a month was recoverable on the original note till paid. E. on those notes paid $4,400 and was notified by his principal not to pay more than

was lawfully due on the original note, at his peril. It was held. Ist. That B. on the original note was only entitled to interest at five per cent

per month till its maturity, and at eight per cent per annum afterwards. 2. That the extension of time given, released the security. 3. That the potes of E. for $6,600, were not void for usury. 4. That E. being a security, was entitled to relief in chancery againstall but

the balance of the original debt, computing interest at five per cent a month till due, and eight per cent per annum afterwards.

Richard Ellis, in January 1826, filed in Franklin Cirduit Court a bill in chancery against Thomas Bibb, for a discovery and relief, and to enjoin a judgment at law which Bibb had recovered against him. The cause at April term 1827, was by consent, submitted for a final decree on the bill, with the several accompanying exhibits, and the answer; and a decree was rendered by the presiding. Judge, dissolving the injunction previously granted and dismissing the complainants bill.

Ellis, assigns in this Court for error, that the decree was improper; 1st. Because he was discharged from liability as security of Pettus,' by the enlargement of time given for payment without his knowledge or consent, and therefore that the note sued on was without consideration; 2d. Because the several notes given by the complainant,amount to more than was due from Pettus to Bibb, and therefore were void for usury; 3d. Because as more than principal and legal interest had been paid, the injunction should have been perpetuated.

The principal and material facts of the cause appear and are stated in the opinion delivered.

By JUDGE SAFFOLD. By the bill, exhibits and answer, it appears that William Pettus, in July 1819, and while the statutory restraints on usury stood repealed, aceording to the provisions of the act of 1918, executed his note to the defendant for $3,000, payable six months after date, to carry interest at the rate of five per cent a month;


JULY 1829. F. Pettus and complainant also signed the note, as securities

of said William. The consideration of the note was MisEllis

sissippi Stock, which had been purchased several years Bibb. previously at a discount of about fifty per cent, but which

at the date of the contract between these parties was worth its nominal amount, being receivable in payment for public lards as so much cash.

Pettus, the principal, at the time of executing the note, was possessed of considerable property, and his circumstances were reputed good. Sometime after the debt fell due, the defendant instituted suit against the principal, but before service of process on complainant, in March 1821, he entered into a new contract with W. Pettus, by which it was stipulated and agreed that certain negroes therein described, (about twelve in number,) were conveyed and transferred to said defendant and Daniel Coleman, to secure the payment of the debtand interest aforesaid: and on the condition, that if Pettus should pay to the defendant $3,500, within twelve months from the date thereof, and $4,000 within two years, in good current bank notes, the defendant would accept the same, and remit the residue that might be due, and the deed should become void; but if Pettus should fail to make payment as aforesaid, said Coleman as trustee should, upon the first failure to pay, take possession of the negroes.and sell them, or so many thereof as should be sufficient to pay said note und the interest then due thereon, at public auction, &c. The defendant also as a consequence of this contract, dismissed his suit against Pettus.

It does not appear that complainant was consulted in rclation to this contract at the time it was entered into, or at any time previously, or that he had ever consented to any extension of the term of credit to the principal. The complainant charges that he was then absent in a remote part of the state, without the means of knowing, much less of consenting to the same; but that afterwards at Cahawba, the defendant informed him of the arrangement he had made, and asked complainant if he was satisfied with it; to which complainant agreed, and said he was glad of it. He fura ther states that he was induced to make this reply from a conviction entertained at the time, and since, that he was thereby discharged from all liability as security to the note; in as much as defendant had of his own accord taken other security, extended the term of credit, and dismissed his suit; nor would he ever have entered into a contract or compromise to the contrary, but for the influence of counsel he

JULY 1829.



afterwards received, and the alarm excited in his mind from the rapid accumulation of interest, in addition to the amount of the original debt. The bill also charges various importunities and advice intruded upon him by the counsel of the defendant, urging him to the compromise, after his discharge as aforesaid; in consequence of which, together with the advice of an attorney consulted by him, and in whose opinion he had great confidence, he was induced to accede to the terms proposed, and executed his several notes to the defendant, for sums making together $6,600, which was 800 or 1,000 dollars less than he at first insisted on as being due him on his original note. It is further stated, that pursuant to the terms of the compromise, said original note, and the deed of trust from Pettus, were by the defendant assigned to the complainant, without recourse on the former; but which were believed to be of little or no value, as Pettus had fled to one of the Mexican states, and taken with him all the property conveyed by the deed of trust; and that the absconding of the principal debtoras aforesaid, together with the co-security, was the chief cause of the defendant's extraordinary exertions and ingenuity to get the complainant re-bound for the payment of the debt, and of the alarm and apprehensions of the latter for his own safety; whereby he was rendered more accessible to the influence of erroneous counsels. The complainant also tenders a redelivery of the note and deed of trust as described, should the Court so direct, as the terms on which he can be relieved from this contract. He further states he has paid defendant on his said notes exceeding $4,400, and exhibits the receipts; that defendant has since prosecuted suits on the residue of his notes, and recovered judgments against him for the balance promised; which exceeds, by several thousand dollars, the amount which he could ever have recovered from Pettus, or which complainant can ever recover from him, either in law or equity, more especially as he has absconded. The bill contains also a statement of chancery proceedings, by Pettus, against complainant and defendant; and a notice from Pettus to complainant, that if he made payment to defendant, it would be at his peril; with other matters, deemed immaterial to the merits; and concludes with a prayer for a perpetual injunction of the judgments at law, and such other relief as justice and equity may entitle him to.

I omit to notice the asperity of the bill and answer, with which the record is unnecessarily encumbered, giving

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