[Miller & Co. v. Boykin.] The bill, as framed, contains no equity, and the demurrer to it should have been sustained. Reversed and remanded. BRICKELL, C. J., not sitting. Miller & Co. v. Boykin. Action on Promissory Note, by Assignee against Maker. 1. Transfer of note as collateral security; rights of holder, and defenses against.-Whatever may be the general weight of authority elsewhere, it is the settled law of this State, that one who takes negotiable paper as collateral security for a pre-existing debt is not a purchaser for value in the usual course of trade, but the paper is open in his hands to all defenses which might have been made against it in the hands of the assignor or original owner; and this principle applies to accommodation paper. But, where one honestly takes negotiable paper, before maturity, as collateral security for a debt contemporaneously contracted, or in pursuance of an agreement made at the time the debt was contracted, he is entitled to protection against equities or defects of which he had no notice. 2. Same.-To constitute a purchaser for value, of notes or paper agreed to be transferred as collateral security for a debt contemporaneously contracted, it is not necessary that the securities to be transferred should be particularly described at the time; an agreement to give collaterals would be sufficient to include any particular collateral afterwards delivered in execution of such promise; the delivery, when made, would relate back to the time of the agreement, and it would be immaterial to the validity of the agreement or transfer, whether the collateral afterwards transferred was, at the time the agreement was made, in the city where the parties then were, or elsewhere. 3. Relevancy of evidence as to time and place of mailing letter.—It being a material question, at what time a letter, sent through the mails from a country post-office in Dallas county, ria Selma to Mobile, was received in the latter city, the postmaster in Selma can not be allowed to testify, "that country postmasters sometimes brought letters, left in their offices for mailing, in person, and mailed them in Selma;" nor that, "at times, when there was a wash-out, or other interruption in the mails, it was not an unusual thing for them to do so;" there being no evidence that the particular letter was so brought and mailed at Selma, such evidence is irrelevant. 4. Same.-The writer of the letter testifying that he mailed it at his country post-office, whence the due course of mails was ria Selma to Mobile, and had no recollection of having ever written to his correspondent at Mobile by boat, though "he may have done so;" evidence as to the course of the mails by steamboat on the Alabama river, between Portland and Mobile, is too remote from the issue, and is properly excluded. 5. Refreshing memory of witness by memorandum.-A witness can not refresh his memory by referring to a written memorandum, nor testify to the contents of the memorandum as facts, when he did not himself make 70 469 95 533 70 469 97 661 70 469 117 476 117 477 [Miller & Co. v. Boykin.] the memorandum, and had at no time any personal knowledge of the truth of the facts therein recited. 6. Official records and documents.-A post-master being required by law, and by the regulations of the general post-office department, to keep a registry of the arrival and departure of the mails, and to certify its correctness to the department at stated times; such official registry is admissible, generally, to prove any relevant fact therein recited, which may arise collaterally on the trial of a cause, not constituting one of the issues to be tried; and it is immaterial whether the facts, as therein stated, are known to the officer having charge of the record, or are based on reports made by others in the discharge of their official duties. 7. Same.-In such case, the officer can not be permitted to read from memoranda taken from the official record, but must produce the original record, or a sworn or certified copy; and the better practice is to require a sworn copy, in the absence of the original. APPEAL from the City Court of Selma. Tried before the Hon. JONA. HARALSON. This action was brought by Thomas P. Miller & Co., bankers in Mobile, suing as partners, against Starke H. Boykin; was commenced on the 16th October, 1880, and was founded on the defendant's promissory note for $2,500, dated Mobile, March 10th, 1880, and payable at the Bank of Mobile, on the 26th June after date, to the order of B. O. James & Co., by whom it was transferred to the plaintiffs. The defendant filed eight special pleas, to all of which demurrers were sustained, except the 5th, 6th, and 8th, which are as follows: 5. "That he is an accomodation maker of said note, and that it was not indorsed to plaintiffs for a valuable consideration." 6. "That he is an accommodation maker of said note, and that said note was indorsed to plaintiffs as collateral security for a pre-existing debt, and that no valuable consideration moved from plaintiffs to said B. O. James & Co. at the time of the indorsement of said note.” 8. "That he executed and delivered said note to said B. O. James & Co., for their accommodation, and without any consideration." The plaintiffs replied to the 5th plea, "that they acquired and became the holders of said note in good faith, and by a transfer to them by said B. O. James & Co., before maturity, in the usual course of trade, and founded on a valuable consideration then paid; and they deny that said note was not indorsed to them for a valuable consideration." Issue was taken on this replication. The plaintiffs demurred to the 6th plea, assigning the following causes of demurrer: 1st, "that while it may be true that no consideration moved from plaintiffs to said B. O. James & Co., at the time of the indorsement of said note, yet a consideration may have moved from plaintiffs to said B. O. James & Co., before maturity of said note, and said plea is no bar to plaintiffs' right to recover;" 2d, "that said plea does not show but that time was given said B. O. James & Co. on a [Miller & Co. v. Boykin.] pre-existing debt, and does not show but that there was a release of other securities by plaintiffs to said B. O. James & Co." This demurrer being overruled, issue was taken on the 6th plea. To the 8th plea the plaintiffs replied, "that they acquired and became the holders of said note in good faith, by a transfer of the same to them by said B. O. James & Co., before maturity, in the usual course of trade, and founded on a valuable consideration then paid." Issue was joined on this repli cation. On the trial, as appears from the bill of exceptions, after the plaintiffs had read in evidence the note sued on, the defendant read in evidence an admission as to what B. O. James, an absent witness, would testify if present: that the note "was signed by the defendant for the accommodation of B. O. James & Co., and was without any consideration whatever; that said note was prepared in Mobile, on the 10th day of March, 1880, dated that day, and forwarded by mail to the defendant on that day, with a letter requesting him to sign the same for the accommodation of B. O. James & Co.; that he obtained from plaintiffs, for B. O. James & Co., on the 16th March, 1880, a loan of $2,500; that he obtained said loan solely on the due-bill of B. O. James & Co., and did not give any collateral security for it at the time he obtained said loan; that he did not, at the time he obtained said loan, indorse or deliver said note to plaintiffs, and did not then have it in his possession; that he had not then received said note from the defendant, and did not receive it until a day or two after he had obtained said loan; that when he obtained said loan from plaintiffs, he did not mention said note, and made no promise to deliver it to them as collateral security for said loan, or for any other purpose; that he did, about ten days after he had obtained said loan, leave said note with plaintiffs, as collateral security for said loan; that when he indorsed and delivered said note to them, neither he nor said B. O. James & Co. received any consideration for said indorsement and delivery, but the same was without any present valuable consideration, and was as collateral security for a preexisting debt." The defendant himself then testified, as a witness in his own behalf, that he received the note, on the 12th March, 1880, in a letter from B. O. James & Co. at Mobile, dated the 10th March, and addressed to him at "Tilden, Dallas county, Alabama;" and that he signed the note, "and returned it to B. O. James & Co. by the next mail leaving Tilden P. O. after the note was received." Both of these letters were produced, and identified by the witness. The defendant's letter, in which he returned the note to B. O. James & Co., was dated March 14th, and he testified that he mailed it at Tilden P. O., directed to B. O. James & Co. at [Miller & Co. v. Boykin.] Mobile, "by the first mail after it was written, and put it in the post-office ready for the mail that left Tilden on Monday, March 15th, about two o'clock in the evening; that the mail left Tilden, about that hour, on Monday, Wednesday, and Friday; that the usual course of the mail was, to leave Tilden at two o'clock P. M., on Monday, thence to Minter Station on the Selma and Gulf railroad, eleven miles distant, where it laid over all night, thence on Tuesday, March 16th, in the morning, for Selma, and thence to Mobile, where it would arrive, by the usual course of the mail, on the 17th March; that he received the letter of B. O. James & Co., inclosing the note, on Friday night, the 12th March, and put his letter in reply, with the note, in the mail, between Friday night, March 12th, and Monday, March 15th, 1880; that mails arrived at Tilden, from Minter Station, by horseback, on Monday, Wednesday, and Friday, and returned the same day in the evening." On cross-examination, said witness stated, in substance, that he had other transactions with B. O. James & Co., who were cotton factors in Mobile, while he was a merchant at Tilden; that he sometimes shipped cotton to them, and they sometimes bought goods for him; that he had obtained advances from them in the early part of the year 1880, and had given his note for $2,500 for such advances: that he signed another note of $2,500 for their accommodation, and inclosed it to them in the same letter with the note sued on; that he lived seven miles from Portland, which is on the Alabama river, and occasionally went there to look after freight; that there were three boats on the Alabama river, between Portland and Mobile, in March, 1880; that he communicated with B. O. James & Co. " almost invariably by mail, and don't recollect writing them by boat at any time, though may have done so." F. Boykin, a witness for the defendant, who resided near Tilden in March, 1880, testified, "that the mails left there on Monday, Wednesday, and Friday, about two, or half-past two P. M., and arrived on nights of same days from Selina; that the mail-rider met the train at Minter Station, going south from Selma, about five o'clock P. M., and brought back the mail to Tilden; that there was no other mail from Tilden but that one; that there was a mail on the river at that time; that three boats were then running, one of which went to Mobile on Wednesday, or Wednesday night, and one on Saturday, or Saturday night; that there was no maii connection between Til den and Portland; that letters mailed at Tilden never went by boat; and that letters leaving Tilden on Monday lay over at Minter Station until Tuesday morning, then went to Selma, and reached Mobile, by the usual mail-route, on Wednesday. The defendant introduced H. Cochran as a witness, who was [Miller & Co. v. Boykin.] the post-master at Selma in March, 1880, and who testified, "that a letter leaving Minter Station on Tuesday morning, March 16th, 1880, by due course of mail arrived at Selma at 8:50 A. M. that day; that it would then leave Selma, by way of Meridian, on 11 A. M. train, arriving in Mobile at 2 A. M., Wednesday that the mail came in on Selma and Gulf railroad, on Tuesday, March 16th, 1880, at 2 P. M., as I find by referring to written memorandum of arrival of mails.' Witness testified, on examination by plaintiffs' attorney, that he had no knowledge of the time outside of the memorandum stated on the paper which he held in his hand, and could not say that he had any recollection of the time independent of the memorandum; that he did not himself make the memorandum of time of arrival of mails, but it was made by ronte agents; that he was not always in the office when mails arrived, and was not always present when ronte agents made memoranda of arrivals. On this state of facts, the plaintiffs objected to the testimony of this witness, as to the time of the arrival of mails on the 16th March," and the court sustained the objection; but, "in order to ascertain what, if any thing, was competent to go to the jury, at this juncture, the court examined the witness, of its own motion," and the witness stated: "I know the memorandum, in reference to the arrival of train being late, was true in fact at the time the memorandum was made. Outside of the memorandum, I have no recollection of the arrival of the train on the 16th March; but I know, when a train was entered on the schedule as being late, it was late on the particular day; and I ascertained that fact from inquiry, and that the fact was true, before I certified to schedule. I know, and can state from this, that on the 16th March, 1880, the train from Minter arrived at 2:10 P. M., as shown by the schedule shown me.' The witness had previously stated, in this connection, that the record which was shown him, and which he held in his hand, was a record of the arrival and departure of mails at Selma, required by law to be kept by the postmaster; that whenever the mail agent arrives, or departs, with his mail, he enters the hour of the day, and signs his name; that it is the duty of the postmaster to see that these entries are correct, as he has to certify them to the department; and that he never certified to the failure of the arrival of a mail in time, on account of a break in the railroad over which it came, without having investigated and ascertained the fact to be true. I signed this record, or schedule,' he said, at the time it purports to have been signed, and then certified to its correctness. On this state of facts, against the objections of the plaintiffs, the court allowed the witness to read to the jury, as a part of his evidence, the time of the arrival of the mail from Minter on the 16th of March, 1880, as shown by said |