1. A recovery may be had upon the common counts in assumpsit, of a bank,
for the value of notes of the bank proved to have been destroyed, without
an affidavit of the loss, previous to the institution of the suit. The Bank
of Mobile v. Williams,
544
BANKRUPT AND ASSIGNEE OF.
1. A suit by the assignee of a bankrupt, must be brought within two years
after the decree in bankruptcy, or after the cause of action accrues; and
if this fact appears on the declaration, it will be reached by a demurrer —
Harris, Assignee, &c. v. Collins and Cartright,
388
BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. One who receives a bill, or negotiable note, before its maturity, in pay-
ment of a debt, is a bona fide holder, and is not affected by any force, or
fraud in obtaining the bill, of which he had no notice. Barney v. Earle,
et al.
106
2. When, upon the purchase of a plantation and slaves, on credit, a number
of notes are executed, falling due during a series of years, if the maker
discharges, or pays the notes first falling due, to the payee, he will be pre-
sumed to have availed himself of any payment, or set off, which then ex
isted, and will not be permitted to make such a defence against an assignee
of notes subsequently falling due. Nelson & Hatch v. Dunn,
3. If the notes so paid off by the maker, were assigned previous to payment,
it was his duty to make the fact appear. Such assignment cannot be in-
ferred from the declaration of the maker at the time of the execution of
the notes, that he intended to transfer them. lb.
259
4. At the time a bill of exchange was drawn, the drawer resided near Selma,
where he had a plantation, and which was his nearest post office. That
about two months before the maturity of the bill, he removed to Talladega
county, with his family, some eighty miles distant, visiting his plantation
occasionally, where his slaves remained; but there was no testimony, that
the plaintiff, who resided in Mobile, knew of this removal, or of the resi-
dence of the drawer, further than might be inferred from his sending the
notice to Selma. Held, that a notice of the dishonor of the bill, sent to
him at Selma was sufficient, it not being shown that he had a fixed resi-
dence in Talladega. Goodwin v. McCoy,
271
5. H purchased bagging and rope from McC, who took his notes for the pay-
ment, and a bill of exchange as collateral security, and gave him a re-
ceipt, which stated the fact of the receipt of the bill as collateral security
for the payment of the notes, and concluding, "the above acceptance of
Thomas Haynes, to be given up on payment of above four notes." Held,
that this did not make the bill conditional, or payable on a contingency,
and that the proof of this fact was merely proving the consideration of the
transfer of the bill. Ib.
271
BILLS OF EXCHANGE AND PROMISSORY NOTES-CONTINUED. 6. If a suit be brought in the name of the payee of a note, for the use of one to whom it has been regularly assigned, this is an acknowledgment that the assignee is the proprietor of the paper; and the assignment being shown, the note should be excluded from the jury. So, if the assignment be stricken out pending the suit, the legal title in the note does not re-vest in the payee so as to enable him to maintain the suit. Bullock v. Ogburn, use, &c.
7. B executes his note to O, in satisfaction of a supposed demand due from the son-in-law of B to O, when in fact no such demand existed. Held, that the note was without consideration. Ib. 347 8. A notice of the dishonor and protest of a bill of exchange, which describes it correctly, but is silent as to the date and time of payment, is prima facie sufficient. The interpretation of such a paper is the province of the court, and should not be referred to the jury. Saltmarsh v. Tuthill,
390 9. A bona fide holder of a bill of exchange for value, which he has received before its maturity, and without notice of any defect or infirmity in the title of the party from whom he received it, may recover upon it, though the person from whom he received it acquired it by fraud. Ib. 390 10. H drew a bill of exchange in favor of C, on B & Co. which was indorsed by C, and one S, on Sunday, and handed by H to B & Co., by whom it was transferred to T, in substitution and extension of a bill for the same amount, on which T had previously advanced money, at a usurious rate of interest, T not having notice that the bill was indorsed on Sunday. Held, that T did not receive the bill, bona fide, in the usual course of trade, so as to exempt the paper in his hands from a defence which would have been available against it, as between the original parties; and that the indorsement on Sunday, being in violation of a public statute, was void. lb.
11. A purchaser of a note, payable to C, or bearer, from one who was not the payee of the note, and had not the right to dispose of it, cannot defend against the true owner of the note, by proving he gave value for it. Donnell v. Thompson,
12. No action can be maintained on a note, which was made upon the consideration of running a horse race, and before the race was run, delivered up by the stakeholder, although it is again put in circulation by two of the makers, upon a valid consideration, one of the makers not being privy to, or assenting to such re-delivery. Brewer and Holly v. Morgan, 551 13. A direction to the holder of a note, "to return it to RS & Co., our agents in Mobile, who will pay it on presentation," is a declaration, that the note will be paid by R S & Co. on presentation, and does not make RS & Co. the agents of the holder when the note is returned to them,
BILLS OF EXCHANGE AND PROMISSORY NOTES-CONTINUED.
whatever may have been their relation to the holder in regard to the note
previously. Cromwell, Haight & Co. v. Kidd & Co.
See Damages, 8, 9.
See Gaming, 3.
CHANCERY.
1. A vendee, holding only a bond for title, cannot resist a recovery at law,
when the vendor sues to recover the possession. His remedy is in equity
to file a bill to redeem. A purchaser from the vendee without notice, is
in no better condition, as it was his duty to inquire into the nature of the
title he was purchasing. Notice to quit previous to the institution of the
suit, is not necessary. Chapman v. Glassell,
2. It is no obstacle to the maintenance of an action at law, by the vendor, to
recover the possession, that he is prosecuting a suit in chancery to fore-
close his equitable mortgage. Ib.
50
3. Although the orphans' court may have taken jurisdiction of the settlement
of an estate, yet if there are assets in the hands of an administrator not
administered, and the settlement in the orphans' court, though it purports
to be final, remains to be completed as to the various sums left in the
hands of the executor, chancery may take jurisdiction. Dement, et al. v.
the Adm'rs of Boggess,
140
4. In such a case, a bill may be filed by the vendor, against the vendee, to
enforce the equitable lien, for the payment of the purchase money, without
making the purchaser of the interest of the vendee at sheriff's sale a par-
ty, though he is in possession of the land, unless it be shown that he is
connected with the equitable title sought to be foreclosed. Driver v.
Clarke & Givens,
192
5. When a fraud has been committed upon a vendee in the sale of land, by
the false representation of the vendor, that he had title, when he had none,
the vendee may resort to chancery for a rescission of the contract, and a
return of the purchase money paid, against the representatives of the ven-
dor, without a delivery of the possession, the vendor having died insol-
vent. Greenlee v. Gaines,
198
6. A party who fails in the assertion of a good legal defence, or omits to
make it at law, may, notwithstanding, avail himself of an independent
ground of equitable relief. Ib.
198
7. A decree in chancery, vesting in the wife certain property of the husband,
to her sole and separate use, upon the allegation that the husband was in-
debted to the wife an equal amount, is void, as against the creditors of the
husband, if the design in instituting the suit in chancery was to hinder,
or delay them, in the collection of their debts. Hodges v. The Br. Bank
at Montgomery,
8. It is only necessary in chancery pleading, to alledge the facts upon which
the relief is sought; and though the proof of the fact consists of the ad-
missions of the opposite party, it is not necessary to alledge in the bill,
that such admissions were made. Bishop's Heirs v. The Adm'r and Heirs
of Bishop,
475
9. It is not a sufficient ground for the interposition of chancery, after a judg-
ment at law, that a witness called by the defendants, to prove that certain
receipts had been paid in money, testified that they had been paid in jury
certificates, by reason of which mistake the party lost the benefit of his
payment. Governor v. Barrow,
540
10. Nor is it any ground of equity, that the witness was intoxicated. A par-
ty who voluntarily goes to trial, with a witness in this condition, does so
at his peril. lb.
540
11. A party who can only prove his defence, by the testimony of a co-de-
fendant, may have relief in chancery, after a judgment at law against him.
In such a case, it seems it would not be proper to file a bill for a discov-
ery, pending the trial at law. Jordan v. Loftin, et al.
547
12. A court of equity, will not entertain a bill to enforce the specific execu-
tion of a contract in reference to personal property, unless compensation
for a breach of the contract, will not give full, and complete redress, ei-
ther from the nature of the contract itself, or from the peculiar character
of the subject matter of the contract. Savery v. Spence,
561
13. All the trustees of a private land company, who have participated in the
execution of the trust, or their personal representatives if they be dead,
should be parties to a bill filed by a stockholder, for the settlement of the
trust estate. McKinley v. Irvine, et al.
682
14. A bill is not multifarious, which makes two trustees, claiming under dif-
ferent deeds, parties, they being trustees of the same property, and hav-
ing a common interest in defeating the claim set up by the bill. Donel-
son's Adm'rs v. Posey, et al.
752
15. The equitable right of a party to a set off, cannot be defeated by a transfer
of the debt to a trustee. lb.
752
16. A bill in chancery is not evidence for the party filing it. Cawsey v. Dri-
818
17. No relief can be had upon a bill, the equity of which depends on a writ-
ten contract, executed to another person, without its production, or estab-
lishing its loss, or accounting for its non-production, and proof of its con-
tents. When the equity is derived from a bond for title to land, alledged
to have been executed to a third person, if he is dead, his heirs are ne-
cessary parties. Heirs of Brewton v. Driver,
826
18. Without the aid of the statute of February, 1846, before a party can go
into a court of equity, to enforce the collection of a simple contract debt,
he must establish a trust in his favor, upon the effects he seeks to subject
to its payment. The fact that the party against whom the relief is sought,
has removed to another State, will not give the court jurisdiction of a
purely legal demand. Reese & Heylin v. Bradford, et al.
See Construction, 1.
See Deeds and Bonds, 1.
See Ferries and Bridges, 1.
See Vendor and Vendee, 9.
CLERKS AND THEIR DEPUTIES.
1. A clerk of the circuit or county court, must issue a writ of error on the
application of any one against whom a judgment is rendered in his court,
make out a complete transcript of the record, and deliver them to the
party, his agent, or attorney, and has no right to require his fees to be
paid in advance. Parker and wife v. McGaha, Adm'r,
CONTRACT AND AGREEMENT.
1. M being entitled under the law of congress to a pre-emption on a cer-
tain quarter section of the public land, agrees with T to abandon his claim
and permit M T to take possession and make improvements, so as to en-
title the latter to a pre-emption, and in consideration of an amount agreed
to be paid him, does abandon his claim, and proves a pre-emption for M
T-Held, that in an action by M against T for the price of his claim, the
contract was void, and could not be upheld. Tenison v. Martin,
2. An agreement by which B sold S certain slaves, and S by a contempora-
neous agreement, covenanted not to disturb the possession of B, under the
penalty of $2,000, is in legal effect a sale of the slaves by B to S, with a
reservation of the right of possession by B, during his life. Scott v. Ba-
ber,
182
3. A father purchased certain slaves, paid for them with his own money, and
took a conveyance of them in the name of his son, after which they were
sold as the property of the father, under execution, and purchased by C.
A few days after the purchase, they were secretly taken out of the pos-
session of C, by the son, and whilst in his possession, were sold by C to
N, by a conveyance reciting, "which said slaves have been removed or
stolen from this county; I therefore convey the chance of said slaves on-
ly, and convey such title as is in me, or all the title I ever had at any
time." Suit being brought by N, against the son, Held, that this was not
the transfer of a chose in action, unless at the time of the sale, the son was
in the actual possession of the slaves, openly asserting a title adverse to
that of C: and that the title thus asserted by him was bona fide. That if
the purchase under which the son claimed title, was made by the father,
and the title taken in the name of the son, to defeat the creditor of the fa-
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