| N.C. | Dec 5, 1820
Lead Opinion
This principal question in this case (204) relates to the delivery of the bond, as to which the evidence is that the bank authorized Mooring to take bonds, payable to the president and directors, reserving to itself the right of receiving such as it should approve in payment of Smith's debt. In *100 pursuance of this authority, the bond was taken; and it appears to me that the delivery was complete and irrevocable from (205) the moment it was delivered to Mooring. The language of the books is clearly to this effect. A deed may be delivered to the party himself, to whom it is made, or to any other person by sufficient authority from him, or it may be delivered to a stranger for and on behalf of him to whom it is made, without authority. Shep. Touch., 56. It is true that the bank afterwards refused to accept it in payment of Smith's debt, and returned it to Mooring to be proceeded with as he might think fit. The evident meaning of this was that the bank did not think proper to relinquish the security which it already had, for the sake of one which it deemed weaker, but allowed Mooring to proceed and recover the money from the obligor, if he could. This did not amount to even an attempt to undo the delivery. But if it had been accompanied with even the strongest declaration to that effect, it could not have been effectual; for when the obligee once by his agreement has made the deed good, he cannot afterwards by his disagreement make it void. Shep. Touch., 68. An opposite doctrine would be pregnant with mischiefs; and in this very case all the bonds not selected by the bank must become void, though taken by its authority and with full notice to the purchasers that they were to be so taken. As there must be a new trial, and as the whole record is not now before us, I will abstain at this time from giving any decisive opinion on the other points which have been discussed in the argument. It is possible that, upon a more attentive consideration of the subject, I may doubt the right of the bank to take a bond for a debt due to itself; but from every aspect in which I have yet seen the question, and from frequent perusals of the act creating the corporation, the strong impression on my mind is that the bank may, for debts due to itself, take securities of any form or denomination recognized by law, particularly bonds, bills or notes. Act of Assembly 1804, secs. 5, 7, 11, 12. Whether the bank can take all or any of these securities for debts not due to (206) itself, but merely as a trustee, is a question on which I have not formed an opinion, nor should I willingly pronounce it if I had, until the pleadings shall be amended.
Addendum
I agree entirely with the Chief Justice in the very satisfactory opinion which he has given; and I go further and say that a new trial ought to be granted, even if the previous agreement had not been made, unless the jury were of opinion that the bank had in toto rejected the bond. In that case it would want an essential part of all contracts — the assent of both *101 parties. But it is quite probable, from the evidence, that the jury, if properly instructed, and if their attention had been called to the question, would have been of opinion that the bank only rejected it as acredit to Mooring, and did not intend entirely to annul it; for all declarations or words or signs must be judged of by the intent. The manner in which the judge instructed the jury is, to me, also sufficient to warrant a new trial. He charged the jury that, if they believed the testimony of Stephens, they should find the paper-writing not to be the deed of the defendant. Now, what Mr. Stephens' testimony proved was a thingon which he could not decide; that belonged to the jury. In the opinion of the court, it might prove a total rejection of the bond, while in that of the jury only the qualified and sub modo rejection just spoken of. The nature of the rejection is an inference of fact to be drawn from the evidence, which the judge has improperly drawn for himself and the jury both, leaving to the latter only to say whether the witness swore truly or not. The jury are the constitutional judges, not only of the truth of testimony, but of the conclusions of fact resulting therefrom. I would repel the interference of juries, as far as the law will warrant, in all questions of law, and in like manner the interference of the judge in matters of fact.
With regard to the objection raised in the argument in (207) this Court, that the bond is void because it is not a subject of traffic allowed by the charter of the bank, unless under special circumstances, those the plaintiffs must show in the declaration, and prove, and need not be pleaded. I do not think it would be proper to decide on it on this record; for the pleadings are very defectively stated, and the point is for the first time agitated. Non constat, but that the plaintiffs can (if at all necessary) bring this bond within its capacity to take according to the terms of the charter; and, on the other hand, should it be necessary to plead it, that object cannot be effected in this Court, which can make no amendment.