Marshall, assignee, vs. Morris, claimant. sideration, and sufficient to support a deed; and that if Mrs. Morris was guilty of no fraud, and entered into the contract without notice of plaintiff's debt, she will be protected in the property". The Statute of the 13 Eliz. "against fraudulent deeds," &c. (Sch. Dig. 214,) is the law which this charge violates, if it violates any. That Statute is, for general purposes, well condensed by Prince, into the following words: "Every conveyance of real or personal estate, by writing or otherwise; and every bond, suit, judgment and execution, that shall be had or made to delay or defraud creditors and others of their debts and other rights, shall be void as against such creditors, &c. and them only. But the Act shall not extend to any conveyance on good consideration and bona fide to persons without notice of the fraud”. [5.] The charge is visibly within this Statute. Obviously, it does not offend against this Statute. The other part of the charge is in these words: "that if Marshall was the owner of the note, at the time he signed the settlement, it was his duty to give notice of it to Mrs. Morris; and having failed to do so, he is precluded from setting up any claim against the property". The objection to this charge was, to the word "precluded". It was insisted, that notwithstanding Marshall might have owned the note when he signed the settlement as trustee for Mrs. Morris, yet, he was not estopped from attacking the settlement, unless he knew that "the settlement covered the whole of Morris's property; and also, knew what would be the legal effect upon his rights, of such an act, on his part, as that of signing, as trustee, the settlement." But the settlement did not "cover", that is, convey Morris's whole property; it left in him a life estate in all that property. This is the fact-the fact apparent upon the face of the settlement, itself, which Marshall signed. And a matter assumed to exist in a case, but which does not exist in it, can Marshall, assignee, vs. Morris, claimant. not be made the ground of an objection to a decision in the case. And while it may be true, perhaps, as a general principle, that a man must know the legal consequences of his act, that the act may estop him; yet, it is beyond doubt, also true, that every man shall be presumed to know the legal consequences. of his act. Whether this presumption shall be a conclusive· one or not, is another question, and one which calls for no decision in this case. Say, for this case, that the presumption is only prima facie. Then, if the Court had given the plaintiff the full benefit of it, the charge, in this respect, would have been, if Marshall held the note when he signed the settlement,. he was estopped, unless he was ignorant of the law which made estoppel the consequence of such an act: but that until he affirmatively, on his part, showed himself to have been so ignorant of the law, it was to be presumed that he was not so ignorant of it. Now, if the charge of the Court had taken this form, the verdict of the Jury, of necessity, would have been the same that it was under the form which the charge did take; for there is nothing in the case going to show that Marshall was ignorant of the law in question. [6.] A new trial will not be granted, when it must result in a verdict just like the old one. What is thus said of the charge, disposes of the requests to charge. It was also argued, that "the Court erred in telling the Jury what had been proved". The part of the charge which it was argued did this, is the following: "The note being made payable to Matthew A. Marshall, is presumptive proof that he held the same, at the date of the settlement; also, that he had sued upon the note, and the fi. fa. being transferred back to him, all go to show that the note was in his hands at that time." Does this amount to the expression or the intimation of an opinion, on the part of the Judge, that the particulars recited in this general way, had been proved? (Cobb's Dig. 462.) Marshall, assignee, vs. Morris, claimant. The most that can be said of the charge is, that it silently assumes the particulars to be true; that it treats them as undis puted facts. And such they were. And strictly speaking, to assume a fact as true, is neither to express nor to intimate an opinion, that the fact has been proved. Suppose the Court had said these particulars are true, to my certain knowledge, but they have not been proved to be true? Such a statement, however wrong, would not be inconsistent, in itself, nor would it be a violation of the Act aforesaid. This charge, then, is not within the words of the Act of 1830. And can it be said to be within the meaning-to belong to the mischiefs the Statute was intended to remedy? The Act could never have been intended to prevent the Court from assuming, as true, for the convenience of charging a Jury, those facts, of which there are many, in almost every case, about which there is no dispute between the parties. It must have been intended to prevent Judges from expressing or intimating their opinions, as to whether disputed facts had been proved. For the expression or intimation, by the Judge, of his opinion, as to whether such facts had been proved or not, might, and probably would, have some effect in shaping the verdict; as the Jury would, it is likely, be influenced more or less by any thing coming from the Court. But the expression or intimation of the Judge's opinion, as to undisputed facts, could not possibly have any effect in shaping the verdict. Suppose both parties say to the Jury, we admit this and this fact to be true, and the Court, when it comes to charge, merely in the course of the charge, mentions what is thus admitted, is it possible to say, that although the words of the Statute do not reach this act of the Judge, the intention does; and therefore, a new trial is to be granted? [7.] The Statute, we think, does not extend to a case where the Judge, in the course of his charge, merely mentions such facts in the evidence, as are wholly undisputed. Albertson et al. vs. Halloway, for use, &c. No. 35.-ICHABOD H. ALBERTSON et al. plaintiffs in error, vs. THOMAS HALLOWAY, for the use of David Halliburton, defendant in error. [1.] A plea of failure of consideration, without fraud, may be pleaded to a note which is a joint and several promise to pay by two, which purports to be over the hand and seal of the makers, and has a seal or scroll affixed to the name of one, the other signing with his own proper hand, as security. Debt, in Houston Superior Court. Tried before Judge POWERS, April Term, 1854. This was an action of debt, brought by Thomas Halloway, for the use of David Halliburton, against Ichabod H. Albertson and Stephen Brown, on the following note: "On or before the first day of January next, we or either of us promise to pay, or cause to be paid, unto James Halloway, the sum of Eleven Hundred and Fifty Dollars, for value received. Witness our hand and seal, this the 12th day of March, 1847. ICHABOD H. ALBERTSON, [L. S.] STEPHEN BROWN, Sec'ty. Witness, D. P. SMALL." To this action the defendants pleaded the general issuepayment, and partial failure of consideration. On the trial, plaintiff moved to strike the defendant's plea of "partial failure of consideration," on the ground that no fraud or illegality was alleged in the contract, and the same being under seal. The Court sustained the motion, but allowed the defendants to amend their plea, by charging fraud in the contract, on which the note was founded, and plaintiff excepted. Plaintiff then read the note to the Jury and closed. Defendant then read in evidence the testimony of Dempsey P. Small and two other witnesses, taken by interrogatories, in VOL. XVI-48 16 377 110 170 16 377 123 690 16 377 124 956 Albertson et al. vs. Halloway, for use, &c. substance, "that the note sued on was given to Halloway for two negroes, Westly and Ann; the former, valued at the time of the sale, at $700, and the latter at $450. Had known Ann from the time Albertson purchased her, and she has been, during the whole period, afflicted with rheumatism—unable to work, and worth nothing; at the time of the trade, Halloway said her feet were sore from travelling." The defendant then read in evidence a bill of sale from Halloway to Albertson, warranting the soundness of the two negroes, Westly and Ann, dated the 12th March, 1847. The defendant introduced other witnesses, all testifying that the girl Ann, in her condition, was worthless; but that if sound and healthy, was worth $400. The plaintiff then read in evidence the answers of Albertson, one of the defendants, to a set of interrogatories filed against him, as follows: "that he did, while Halliburton held the note as agent for Halloway for collection, ask him for indulgence on the note; and at that time, it was his intention to pay it, but the negro Ann continuing to be worthless, he changed his mind and determined not to pay so much of the note as included the price of Ann, and so informed Halliburton, who, thereupon, commenced suit on the note. Wm. H. Miller, sworn, testified, "that the parties, Halliburton and Albertson, were together at one time, attempting to settle the matter; and Albertson stated to Halliburton, that he was sorry that he had not notified him sooner, or before he, Halliburton, had bought the note, that he intended to defend it." It was admitted that Halliburton had paid the note to Halloway, who was suing for the use of Halliburton. The defendant requested the Court to charge the Jury, "that if the consideration of the note had partially failed, they should deduct from it the price agreed to be paid for Ann, if she was proved to be wholly unsound." The Court refused so to charge, but did charge, that the instrument sued on, being under seal, partial or total failure of consideration could be plead, only in case of fraud or illegality in the transaction. |