Canal Bank & Trust Co. v. Brewer

Co. 1927] March, Trust Syllabus. Grocery Company, appellee, the to the Greenwood As by May company, rights final of decree of the fixed affirmed; as the reversal will but inasmuch 1926, be 12, necessarily change toas Mrs. Parker will of the cause rights paragraph fixing the of Mrs. Norah Grocery clause B of secondary Com- to Greenwood D. Parker pany the prior complainants Toler in Stone and to the and paragraph eliminated; will that clause of notes, as to Parker hold- and the reversal of decree Mrs. as bidding by ing at to her former bid commissioner’s May final sale, decree ordered be- be set and the court sale will aside commissioner’s made, fix sale to be in order the date for new low will parties may protect in their interests accordance all judgment; in and, with as decree, such modified securing selling to lands the Stone addition after commissioner, notes, court will direct the Toler selling with Toler notes lands, to credit Stone and sell then sale, lands at the amount such bid said public outcry thereon notes at for the balance due opin- apply proceeds in with this thereof accordance ion. part part remanded.

Reversed affirmed et Co. et al. v. al.* Canal Bank & Trust cases). (two 1927.) (In Banc, Suggestion Error Oct. 1927. Overruled June 26344, 26527.] Nos. [113 So. 522. Injunction. assignments Preliminary spected assignment attorneys, assignment to and retained as to daughter. (Affirmed by court.)

to divided Appeal EJujob. Case cannot he remanded without deсision for .2. and hearing newly-discovered evidence.- supreme

Case cannot be remanded1 from court without decision hearing by newly-discovered for chancellor- of which evidence was unknown at time case was tried in lower court. Judges. injunction Motion preliminary in vacation to dissolve 3. granted by special judge agreement attorneys under held im- of properly presented (Heming- to chancellor another district way’s Code, 716, 718, 262; 1890, sections Constitution section 165). . agreement Where member of the bar in accordance with of at- torneys (Hem- 1890, as authorized Constitution 165 section ingway’s Code, 996]), 190-6, ap- section [Code 716 section pointed preside place regular judge, disqualified, who was therein, was issued such in- motion to dissolve junction improperly presented in vacation was to chancellor of regular district after another certification of chancellor’s dis- qualification Hemingway’s Code, (Code 1906, under section 718 189-2, 922].), [Ann. section 998- section 262 Code since section (Code 1906, 506), expressly providing may section that chancellor try parties with consent solicitors causes deliver opinions sign vacation, regular decrees in is not limited to

chancellors. opin- On motion to correct decree. Motion overruled. For former ion, 113 So. see 552/ per damages appeal cent on is in nature Costs. Five 1. unsuccessful aрpellee incurred, expenses compensation to successful 3’407). (Hemingway’s 1927, Codie section damages 1906, per under section Allowance of cent Code 1927, 3407), (Hemingway’s unsuccessful in case of Code section ap- compensation appeal, to the successful the nature of is in through wrongful appeal pellee expenses incurred him for adversary. his damages aippeal allowing must be on Law unsuccessful 2. Costs. (Heming- party against strictly construed claim successful 3407). way’s 1927, Code section March, 1927] Canal Bank & Trust , Appellants. Brief 1906, (Hemingway’s 3407),

Code section section Code cent, per allowing damages appeal, in case of unsuccessful must party. strictly construed the claim of the successful construing Statutep. courts in should "be aim statute Chief Legislature’s intention; bringing reach about real construction unjust possible. untho.ught-of will be avoided results if construing statute, be to reach real In chief aim of courts should bring Legislature, will which and construction intention unjust manifestly unthought-of will be results avoided about such, necessafy results, possible, and, will courts to avoid if if statute. widen or letter of narrow appeal damages authorizing in- held Law unsuccessful

4. Costs. (Hemingway’s interlocutory appeal applicable decree from 3407). 1927, sections Code 3407), Code-1927, (Hemingway’s section section Code appeal, damages per providing unsuccessful case’of cent for 5 appeals only in- from applicable not to final decrees held chapter terlocutory Laws under decrees joint requiring 9), 1927, (Hemingway’s action section Code appellant. court and Juris-Cyc. * Corpus Appeal Error, 4CJ, p. 1116, n. and References: 20; 82; 57; 8CJ, 620, 7CJ, p. 349, Notes, p. Bankruptcy, n. n. Bills and 64; 1036, 78; Injunctions, 32CJ, Judges, 33CJ, p. p. 427, Mort n. n. 98; p. 11; 280, 41CJ, 508, Costs, p. 241, p. gages, p. 15CJ, n. n. n. 36Cyc, 1106, 29; p. New; p. 5'6; Statutes, p. 285, 286, n. 43 n. n. 38., 40, 46, 47, 48, p. 1112, p. 39, 35, 1108, As n. n. n. primary legislature as consideration of real intention of certainment Supp. 1435; statute, L. L. 25 R. R. C. see C. construction of C„ 1355'; Supp. Supp. Supp. 1494. 6 R. L. L. 5 R. C. R. C. L. comity, chancery Sec- court Coahoma from Appeals’ ond district. Special and Hon. N. Chancellor,

Hon. S. I. E. Osborn, Sledge, Chancellor. Company another and & Trust Canal Bank

Suit From decrees others. and dissolv- Earl Brewer complain- granted injunctions ing preliminary therein, cross-appeal. Af- separately appeal, defendants ants appeal, other, as to and reversed as to one firmed remanded. case 112 So. 394.

See, also, Canal Bank & n Trust1 v. Appellants.

Brief [147 Maynard, appellants. & Venable, FitzGerald Judge Sledge. opinion I. Jurisdiction In our stipulation governor appointment of counsel and the himof Judge constituted Sam I. Osborne the sole power to exclusive hear and determine Cause No. earthly power in all of its branches and no could remove position impeachment. him from that other than Kelly Kiersky, absolutely 79 Miss. 168, no has bear- ing Judge on juris- whether Sledge could exercise by Judge diction herein. As stated Gashin McGowen Code, Murphy, 138 Miss. 853, 995-,996-,998, “Sections (Hemingway’s 718) of 1906 Code, sections 716 and comprise Mississippi contain and all the law of on the subject disqualification judge of the of a aside from the statement contained the Constitution were under the common See, also, McCloud, law.”- McCloud Miss. 729. is

It our first contention that chancellor no act out can of his own district in can act vacation, and out of his own only by district in term time virtue of section 717, Hem- ingway’s (Code 996). Mississippi, Code section This plainly Kyzer, in Adams v. aimounced

Our idea of the statute based statment Hemingway’s (section law, Code Code). however, If this court should differ with us (section that under section hold Code Hemingway’s Code), disqualification rightful judge chancery of the Seventh district judge a certification him that chan- Third cery Sledge district, N. the Honorable R. had right chancery to come va- into the Seventh district in there, then, cation and hear still nevertheless, a cause we say agree- fear of that under the without contradiction appointment gov- Exhibit A ment, hereto, and Harvey Exhibit B ernor, hereto, the Honorable McGehee already disqualified had been that the Honorable Sam in judge presiding I. Osborne was the exclusive sole and 889 1927] Canal Bank March, Trust & v. Appellants. Brief for 147 -chancery 38-51 the court district Cause No. Seventh Mississippi. appellees that to this decision answer under the But the Kiersky, Judge Kelly Osborne, v. Sam I. appointed by special governor, being chancellor (1) reply to That act in vacation. Our this is: could Judge appellees agreed having that could Osborne position, try in no his vacation were without case disqualification, to ask other certificate of chancellor objection appellants; Judge (2) under act, authority Sledge act until it certified no been had had by Judge Judge he, Osborne, him Osborne disqualified. Sledge hearing Judge non before N. B-. was coram

The ground judice, case and this should be reversed on alone. liability & II. to the Canal Bank Trwst Company Mc- on the Cidden Townsend notes .of Company

Nally. these The Canal Bank & received security thousand as collateral for the five hundred 890 Trust Co. v. Brewer. Canal Bank & Appellants. Miss. [147 Brief for are Brewer’s defenses untenable and fallacious. He is estopped up voluntary to set that his endorsement was accommodation; and this cannot or be true for the Earl reason that Mr. Brewer and Mr. Ed. Brewer en- taking- these notes at the time of dorsed their the bank. Benjamin Cartwright, v. 81 Pearl Miss. 300; Stubblefield Roper al., et Miss. v. 136

The other that Mr. Brewer notes defense makes these is that the notes have been subordinated. This no is de- fense. This court has in Tarleton decided v. Bank of EnglaAid, although, proceeds 23 173, Miss. aof mortgage pro among should be rata all the distributed mortgage, yet, notes nevertheless, secured may, all owner of the notes if he desires, so subordinate payment certain ones these notes to the of certain other ones or of said notes and the maker co-maker or en- complain. dorser of all the cannot Pac, 523, 15 A. L. R. 430. 280'; Mont. assignment fraudulency

The Mr. to from Messrs. & Chancellor Osborne, Cutrer well as Smith. Sledge cause that Chancellor in this held the transfer and assignment Judge to Messrs. Cutrer & Smith valid. held Cutrer & Osborne that Messrs. were Smith “bona-fide purchasers for value notice.” without produced, produced any can No case has been or thing court, which holds that there can be such a as bona- purchasers without of an for-value notice undivided fide interest a chose in action. Under common law assign only by one not in action could chose and Hemingway’s virtue section 497, Code, that a chose assigned in action can be transferred in this and state. provides give assignment, It that in order notice of required assignment it is that statute should .papers point be filed with the in the cause. On this see, Assignments, page 2 R. L., 595; C. section sections 3, pages Sprate, 630; 618-19 26, 39, 27 and Ford 2 A. v. (Ky.) 12 Am. Dec. 528, 439; Minor, K. Marsh Natchez v. Clarke, 9 &M. 544; 466; Weit, S. Duke v. 58 Miss. Field v. Scott, & M. 28 Miss. v. Anderson Metcalf, S. Assignments, Williams, J., v. 24 Miss. 5 C. page 962.

150, Company Bank & the Canal Trust was the While pledgee possession Bobo notes, of the G-atesand Brew- attempted January, er in .December, 1923, convey torneys equity by assignment Kaufman

ney, 100; 50 Miss. 429. If the Martin, Price v. 46 Miss. great, entirely difference value is transaction is a small void; amount, if for thе void difference. 12 R. page C. L., 587; v. 21 L. A. Szwanek, 2 Miss. Dec. Griswold R. 22 and Thompson note; Harrison, Bice v. 403; v. Morgan, Hester, 55 Miss. 656; Graham v. 83 Miss. 601. (3) Relationship parties. The court will close- ly family. scrutinize transfers between of a members Whitney, 109; 50 Miss. 12 R. L. 668; v. C. Kaufmcvn v. Clark Ball.

(4) proof usually upon creditors; The burden of is upon discrepancy price any but fraud, shown, pur- shifts to burden the defendants show value and to chase without notice of fraud. Richards v. Vaccaro Co., 516; S Miss. 67 Ott 68 Miss. Atkinson Smitz, 773; v. Graves, v. 70 Miss. 42. In this connection the need fraud impute active, be will in- the law fraud in certain Bradley, stances. Mark v. 69 Miss. 1.

By great weight conveyance authority from proof husband to is wife, the burden of the wife to adequate. show was real the consideration 1927] March, v. Bank & Appellants. Brief Spencer, page B. A. 56 L. 689; Adoue v. L., B. C. Dwyer, seq.; page v. Miss. 763. Virden 78' et

notes, on on merits canse is not trial its This Conclusion. only question presented for this the court.

before injunction whether or not the should is court’s decision complainant is 26,527, No. dissolved Cause finally put proof either as to the merits, on the not liability & Townsend Brewer on the Bidden Mr. McNally but the sole thereof, or the alteration notes, enough question doubt or not there is to whether as injunctions and court to hold the of this matter preserve hearing property on intact until final merits be heard. these can injunctions power grant as to dissolve as well

“The necessarily in must rest the discretion court and injustice.” prevent exercised so should be Bowen Alcorn, Miss. Alcorn v. Miss. Hoskins, 188; 906; v. Griffith Pr. in Miss., on Ch. injunction showing an

Where motion dissolve unsatisfactory, court must retain the proof: Bynum Meyer, until there has been full v. 48 So. Hudspeth, Ann. Coleman 49 Miss. Cas. 1915B v. Harpeth Bank, Belzoni ‍​‌‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​‌​​‌‌‌​​​​‌‌​‌​​​‌​​‍Nat’l Citizens McCrory, McKenzie Evans Hay, Saddiler, 101 Miss. Alcorn v. 66 Miss. Injunc- County 679; Hill Madison on Hudspeth, Paxton, Chancery, tions, 93; Walker, 90; Coleman v.

49 Miss. 562, ibid. fully appellees protected

In are both cases the these money payment case into both bond injunctions damages, court; if the are dissolved full pe- imagine, we and the allowed; will be for and asked fully indemnify- step titioner desires to take no without ing parties any possible final from loss until decree can be rendered.

894 & Trust Appellants. Brief for [147 Miss. appellants. Green, & Potter, also, Green dissolving I. The erred as to Sup’rs <& Cutrer Smith. 56 Miss. Paxton, Board v. Injunctions, 679; Bowen Hoskins, 189; v. 45 Miss. Hill on Hoaglandv. 108; Titus, 1 McCart, 83; Griffith’s Miss. Ch. 456g Pr., section Alcorn Alcorn, v. 70 Miss. Alcorn 922; v. 66 Miss. Sadler, 221. aspect

II. Creditors’ Bill. The in its bill as a credi- conveyances tor’s bill to set aside the fraudulent to Cut- rer & Smith and Mrs. Earline Brewer is based Shelton Hemingway’s section 313, Code. this Under stat- holding ute the chancellor correct in that the bank convey- file bill could to set aside these fraudulent ances, as creditor of E:arl Brewer. assign- holding The

III. chancellor that erred ment to Cutrer Smith was not fraudulent, Cutrer purchasers & Smith valu>e, were bona-fide <§> the was not exorbitant. Emanuel White, Barnett v. fee 56; 34 Miss. Brown Freeland, 181; v. 34 Miss. Bank v. 74 Miss. Ause, Conner, Couret v. Harvey, ¡.Liénkauf

So. 34 C. J. Thompson, Edward F. Gerber 7 A. L. W. Va. R. 1012. C. J. Assignment being

The Cutrer & Smith a Louisiana performed governed contract, in Louisiana, lаw, Code, Louisiana under of the Louisiana article 1978'- being Brewer is a constructive fraud and void insolvent, n under Kidder, the laws of Louisiana. é Stone Bep. Hodge La. Ann.' '552; Martin, Blank v. 2 Bov. La. Morgan (1824), (N. S.) La. Martin Johnson v. n , Levy, Marm 1091La. 27 C. J. note So. (cid:127) — assignment Ex- Shelton, to Mrs. Earline original hibit “I” also Louisiana con- bill, reasons as tract, fraudulent void for the same the Cutrer &> n Smith assignment. & Trust Co. 895 1927] Canal March, Bank Appellees. Brief for Miss.]- holding in that the Canal Bank IV. erred precluded asserting any Compcmy $ claim is from pledge days notice; on five (4) Hemingway’s That 718, Code, authorizes any adjoining from an to hear mat- the chancellor district disqualified regular judge in ter in which the either .va- time.; cation or term

(5) disqualified prop- being That Chancellor McGehee erly Sledge requested Chancellor hear matter complied Sledge and that Chancellor vacation with right request gave appellees hearing their a Clarksdale, at the court where the house case only pending, place cause could be law- where the fully tried. discharged II. The subordination the notes sued on of 419; Miss. Allen,

Brewer as endorser. Davidson v. 36 521; Gage Terry 410', 5 & 43 Am. Dec. v. Iler, v. S. M. Pugh 6 & M. 45 Am. Dec. 27 Woods, 1319, 274; Holt, v. S. 461; Buchanan, 386; Miss. v. 49 Miss. Green v. Wooten Banking 550; v. M\orris, Go, 78 So. Interstate Trust <& Young, Sawyer Sutherland, 65 State Bank v. So. 115 493, James, 36 N. Dak. 162 N. Runnels v. 696;W. Bridges 42 Miss. Brown v. Winters, Miss. v. Prophit, Key Gross, '53 v. 23 Miss. Miss. England Cole, 111 39. Lauderdale v. Miss. Bank of point. 173¡,

v. 23 is not in Goar v. Mc- Tarleton, Miss. Miss. is favorable to Gandless, 60 us. proceeds judgment The all as rеndered III. thereof

'against Bank in 25200 had been as- Cause No. Canal long signed prior good consideration and valuable present Hirsh, to the institution suit. v. Schoolfield 71 55. court belotv IV.There was error committed no Fagin. deposition A with to the H. A. reference pending change bearing no the state of facts has Trust -897 1927] March, Bank & v. Appellees. Brief for 147 appeal. appeal judgment an taken from Where appellate considering’ court, an inferior its will correctness confine itself to the state the ease at anything will it was time rendered and look record; subsequent appearing in thereto the. Johnston George (1854), (1886), Md. 452; 6 v. McJunMn Boone (1830), Paige (N. White v. Buloid 164 Y.); (1854), (1 Appeal Harris) 'Martin 23 Pa. St. Vattghan, (14 Wall.) S. See, also, U. L. 258, 20 Ed. 807. judgment

This reverse court cannot of an inferior arising judg- court for fact after the rendition such Hemphill Supreme (Divi- ment. Smith, Court sion) April 17, 1922, Miss. So. A. — R-. 1456; L. Co., Vandiver American Can So. Yarborough headnote So. Co., Sivift La. 244. party

A will not cause be remanded enable to in- troduce evidence which he to avail declined himself LeBlanc, at the trial. v. 48 921,121 Schlater So. 919. La. preliminary injunction appeal A must stand or fall on possessed granted. on the merits it when it was N.ew (4 Mining <& Smith) Boston F. Co., Coal 54 Pa. P. 164. & Wells, Jones, Smith, Stevens Cutrer é P. Low- H. rey Lowrey appellees. & Lamb, also, things-

I. All matters and in this raised cause are res judicata under the rules of the cause number 25200. See Canal Bank Breiver, 430; v. Earl 108. So. Martin v. Evans, 218; 85 Md. 36 L. R. A. Durant v. Bodley, Essex 74 Co., U. 19 S., Ed. 154; Law Waltоn v. Hughes 39 156,10 U. S. 398; Law S., Ed. -v.U. 18 Ed. Law Bigelow Cray, 305; v. 1 Winsor, 301; v. 1 Gibbs, Eoote Cray, Lyon Mfg. Perin 412; Co., v. 105 U. S. Gee By. Law31 839; Ed. Adams, Y. & M. V. Co. v. 77 266, 28 Miss. 1231,128, 395; Ed. 226, 433, 15 Law S.U. 35 Fed. 814; 4 550; 565; 116 Miss. L. R. A. 28 Fed.

147 Miss —57.

898 [Sup. Bank & Co. v. Appellees.

Brief for [147 Miss. 4 L. R. 46; A. "sections L. A. Digest, 3847-3848-3849; R. Bean Supervisors, 418; 268; Board 1917-C v. 135' Miss. Shotwell, v. 27 Miss. v. County Cromwell 630; Lofton Bates 63'6; Strickland, 94 U. Sac, 357; S. v. 139 Mi-ss. Sorrell, 782; Starling McNeil, Duncan v. 134 Miss. v. (cid:127) Henderson v. Winchester, 704; 31 Miss. 290; Cooper, Cannon Slater v. 39 Ekirling, 784; -v. 66 Wahlenmaier, Lamb v. 444-448; Rep. Am. St. 103 A. S. 66; R. Freeman on sec. on Judgments, 282; Black Judg Taylor sec. ments, 761; Ed.), on Evidence see. (9 1699; Dunn, Goodrich, Timmons Howell v. 680; v. 4 State, Ohio Litch Clinch, Mc 536; 69 EL 579; v. 136 111. 26 N. Nicholas v. Lake, Ehle 987; 13 Col. Pac. v. 164, 56 App. Bingham, Baker 7 494; Barb. Stinchfield, 363; v. 57 Me. <&N. B. S. B. Co. v. 56 Heinlein, Ala. 368; Jermison v. Springfield, West Case 13 Co. Gray, Mfg. Moore, 544; v. 119!Am. St. Rep. 933; Tuttle v. Harrell, 527; 144 N. C. Wagon Piedmont v. 456; 85 N. 460; C. N. Byrd,-119 C. Co., v. Copper Dimock Bevere Tyler v. 559; 117 U. S. Dobson v. 125 N. Caphart, Pierce, 112 C. N. Y. 156; Sw,eet Brockley, Me. v. McPike, Wernse 100 Mo. v. Harriman, Weeks Breichlin v. Night H. 65 N. Hawk Am. Mining Wash. Co., reported 198> St. 24 Am. Rep..863; Eng. Enc. (2 Ed.), 799; Law 1232; Plant Carpenter, Gould Cyc., Wash. Co., Evansville B. B. N. B. P. B. U. v. S. C. Slaght, Co., Cain v. U. Ins. U. S. 123 Ky. Life Am. 59, 124 St. Rep. 313; Cooley Constitutional Limi Holt, Ed.), 58; Henley (5 tations 59 Conn. Am. St. Rep. 71-74; Equitable Smith, Trust Co. v. 77 Fed. 677 (see specially).

II. It this improper bill, injunc- file issue the tion, and hear and a grant decree cause while number 113 was pending, wherein the prayed for was same identical property, against the same defend- and said bill was then ants, pending the United States district of concurrent court, court jurisdiction, being 899 v. March, 1927] & Trust Bank Appellees. Brief for 147 the: between- property over same the same litigation par- v. Water 88 Miss. 371, Works, au- ties. See Griffith Loan Farmers Go. v. Lake St. cited; thorities Go., B. Peck v. Gen- 667-671; 44 Law Ed. Elevated B. Howe, Freeman Ed. 24 ness, 12 612, 841; 7 How. Lаw v. 749; Moran 154 U. Sturgis, 16 Law v. S. 450, Ed. How. Stephens, Central Nat. 981; Ed. v. 169 256, Law 38 Wadley, Harkrader v. 807; Law 42 172 U. 432, U. S. Ed. vol. 1-2 U. 399; page 2312, Digest; S. Law Ed. S. 148, 43 1550; 1541, 1543; Page 2315, section 1534, Sections 1536, 2319, 1575; section 23H8, Page section Page 1573; 806. Rep. 130 Fed. file this bill, injunction, It error to grant

III. cause, therein, render decree while hear this in the United States district cause was pending McCrory of exclusive jurisdiction. a court bankruptcy, 48 Donald, Trustee, Montgomery, Allen v. 80' 643; So. v. Go., Acme Go. Beekman Lumber Harvester 101; v. Judson, Everett v. 57 (U. 208-213-214; 56 Ed. Law S.) Go., v. Baker Ice 60 Law Ed. Bailey 927, 929'; Law Ed. Wills, Steam Shovel Go. v. 60 Law Ed. Fairbanks 275; Pekin 310; v. Go., Plow 112 Fed. 841; Ghatfield 101 Fed. Col- App. O’Dwyer, Cir. Court Ed., 657, sub-section- (13 1923), page lier Bankruptcy & Webre 213 Fed. 658; Matthews Son v. Go., “G,” page 396,15 C. J. section sued Canal,

900 Co. Bank & Trust v. Appellees.

Brief for [147 Miss. 22516 Schwarts 453; 14 Me. Me. v. Wilmer, 9 136; Md. Long, Jordan v. 19 109 Ala. 1 414, So. 843, 979, R. C. L. section R. 13,1 967, C. L. section 4 (see special),; Sanders Bagwell, v. 7 L. A. 743; R. Hemingway’s Code, 2641; sec. y. Skinner Mahoney, 140 Lauderdale 625; Miss. ¡L. 111 Cole, 39, v. Miss. 21 R. Inter- C. 53; state Trust db Banking Go. v. Young, 65 So. 611 au- Martin v. Thomas, 16 Law cited; thorities (U. Ed. S.) y. Stewart, 689 Miller ; 9 Wheat. 702,; v. County Glenn Jones, Ann. Cas. Reeve -v. U. 764; 2 S., 19 Law Ed. '541; Weiss, Sahister v. 19 L. A. People v. 182; R. Wills, 93 Am. 1 521; Joyce Dec. Defense Commercial Paper, N. 61-63; 95 751; W. sec. 283. Hemingway’s Code, Appellant pleaded Y. its sworn that bill the judg- ment on its cross-bill rendered cause number 25200 that court was full jurisdiction clothed with subject-matter parties decide cause. De- fendant admitting jurisdiction this. answered y. McGrow, Parkhurst the court was settled thereby. Davis, Cornwall v. 24 4 L. A. R. Hender- 134; 563; Miss. 504; Hughes son v. Stamford, 105 Mass. v. Dimdee Mort- gage Co., Investment M. Ohio R. R. 40; 28 Fed. Go. v. Law McConley, 96 U. S. 24 695. 267; Ed.

YI. The record- shows the Canal Bank did сome into court with -clean hands this case. The doors court closed it. Chancery Griffith’s Prac- 4 L. R. Deweese v. Rein- tice, 45; note; A. page hart, Ely Dean v. ton Land 757; 165 U. 44 Law Ed. S. Pace, East Co., Ala. 21 213; 521; 113 So. v. 57 Ala. y. McCray, Tarrison Taylor, Mullens 37 Ala. 132 pages 1 to for full R., A. L. discussioiL see pages to 79. A fiduciary a confidential pledgee occupies

VII. aiLd relatioiL. Boswell McLemore Thigpen, D’Arcy, Dibert Hawkins, Mo. Bank & Trust March, 1927] Opinion of the Court. Morris v. Windsor Trust E. 63 N. v. Ferran, Breiton Go., Cyc. 226, 598, 599, N. E. (cid:127) A when sued by pledgor

VIII. pledgee, against rendered property return of the trust decree M'c- in default a wrongdoer. him for the property, Thig- Hawkins, Boswell 715-719’; v. Lemore v. 46 Miss. Bank, Laclede Hagen v. 182 Mo. pen, 319; 308; 75 Boardman 279; v. Richardson, National 186 Mo. v. Bank Kilpatrick, 204 39 Flores, —.; v. Mo. 559; 37 Mo. N. Dodge v. Supp. 19 Y. Lawson, 598', Cyc., 226', 600; secs. 153; Stephenson v. 21 N. Burnah, Nichols v. C. 904; W. Co., Trust 105 Morris v. Winsor Burdett, 10 L. A. 576; R. 22 Ferrin, 75; Breiton v. (special); E. N. E. 954 N. Bank, Nat. Merchants 869; Myers Enc. v. Eng. Law, Am. Am. Law, Enc. 1016; 266; Ann. 28 Am. & Eng. Cas. ¡Ene. 376; Pe- Bowman, 99 Pa. Tagg v. & Eng. Law, Detroit Bank, Tenn.’224; Savings ters v. Nashville 58 Mich. Works, Barman Wire First National Bank v. S., Law Ed. Bank v. U. County Cook Nat. v. Goodrich, 60 111. Henderson Knowles v. App. ¡L. Williams, 38 Miss. Joor v. O’Connor, 13 B. A. Ellis, v. 261; Pressley

Story’s 322, page sec. Equity Juris., 166; Gilly Miller, Gillenwaters Mis§. Jackson, La. 747; Young Ann. Roumieu', 11 La. Ann. La. Code of Be vised Civil 901 of the 810.; 2956, page Art. no- injunction without It IX. was error grant au- 445, and Practice, tice. Griffith’s Chancery thorities therein cited. Green, FitzGerald, Marcellus orally by Gerald

Argued J. P. H. Loiorey, F. and H. for appellants, Jones, Montgomery, ‍​‌‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​‌​​‌‌‌​​​​‌‌​‌​​​‌​​‍M. Stevens and V. B. appellees. of the court. J., opinion C. delivered

Smith, from decrees dissolv- cases are appeals Both of these case; in the same injunctions preliminary granted ing Cañad Bank & Opinion [147 of the Court. together argued both were before the banc, disposed begun bewill here so The suit was of.. purpose setting creditors’ bill for the filed two aside alleged assignments by fraudulent in- Brewer, who is promissory pur- solvent, several notes, and for the pose proceeds subjecting pay- of these notes to the might ment of decree be rendered joining on the claims of his creditors in the suit. Company, bill filed the Canal Bank & Trust joined one other of Brewer’s creditors afterwards there- joined party in. This creditor has not in, and is not a to, appeal in case No. 26344. by promissory one, The suit the bank is on six notes, McNally May executed Frank to the Richardson & Planting Company, forty Land Limited, for thousand five dollars, five; hundred executed E. and J. Town- May send Planting Company, B. and W. to the Richardson & &, Gidden Land thirty-nine for thousand one hundred eighty dollars all which each, bear the indorsement May Planting’ Company, by the “Richardson & Land & personal Earl Brewer, President,” and’also the indorse- pledged ment of Earl Brewer. All of these notes were by they to the bank P. Holland, W. whose hands into security had come due a c’ourseas for hun- debt five a'large dred which he dollars, owed, thousand and part promissory of which he bank. owes, still notes, assigned alleges fraudulently by which the bill were by consist of notes Brewer, six C. G. K. executed and B. thirty-two Bobo, each for thousand two hundred dollars, aggregating ninety-three one hundred two hun- thousand eight by dollars, dred and L. notes, Gates, executed W. eig’ht aggregating each for sixty-eight dollars, six thousand hundred eight A half in- hundred dollars.

thousand by assigned terest & these notes was Brewer to Cutrer lawyers composed firm of Smith, a of J. W. Cutrer and Smith, E. W. and the interest therein was as- other half signed by daughter, Mrs. Earline Brewer to his Brewer Shelton.

March, 1927] Co.u. & Trust .Canal Bank Opinion of the Court. money the bank borrowed, was to for indebted Brewer pledged to were and Bobo notes bank and the Gates security paid Brewer debt, therefor.- him as and Bobo notes. surrender Gates the bank declined clearly the Canal disclosed, reason, For some Company Bobo notes to forwarded the and & Gates Trust they in the Miss., were Clarksdale, and bank at while possession Bank, Brewer sued that bank of the Clarksdale Company possession for the the Canal Bank & and against judgment for Canal Bank notes, and the. money Company on the notes. it had collected Trust& Company, in claimed its answer, Bank Trust The Canal & pledge right under a Brewer par- parties not be made suit, to the were not and could by suit resulted means of a cross-bill. This ties thereto by adjudging the for which a decree Brewer contract security pledged for Hol- he Bobo the Gates and notes pledged not that Brewer had bank, void; land ’s debt to the security on indorsement the for-his the notes to bank as McNаlly was notes; that he the Gidden-Townsend misap- acounting bank liable the not for an belonging propriation dissipation -the of -the assets ax, Can Trust Bank & Opinion [147 of the Court. May Company; Planting Richardson & Land & that the Gates and Bobo notes to him; delivered that Company pay fifty-one the &Trust him thou sixty money adjudged sand nine hundred dollars, to have by been collected on notes. This decree was affirmed appeal on to this court in the case the Canal Bank & Trust Co. v. Brewer, 146, 108 143Miss. So. 47 A. L. R. to which complete reference is here made for a more statement of facts therein. represented litigation by

Brewer was in that Cutrer assigned & Smith, and he Gates and Bobo notes to them a half interest in the any money might he re- Company, cover from the Canal Bank & Trust the con- legal being sideration recited therein services to be ren- by possession recovering & dered Cutrer Smith judgment obtaining notes and money bank by assignment collected it on the notes. This prior dated to the suit institution therein con- templated, but disclosed until after the termina- tion of the case in the trial court. It was filed for record thereby public pending- made while that case was appeal supreme in the court. While that was in case supreme assigned, writing, court, Brewer also half daughter, interest in the Gates and Bobo to his March, 1927] Canal Bank & Trust Co. v. Brewer. Opinion of the Court.

by failing writ error; and, to obtain an order from this directing court pending the receiver to hold notes by supreme the decision of the case court of the United Company States, Canal Bank & Trust filed a bill up setting litigation the Federal district court then pending with reference to the and Gates Bobo notes, appeal supreme of the case to the court of the United prayed injunction against States, for an all of the necessary parties restraining disposing them from of the by notes supreme until the case be decided could court of the restraining United States. No order was injunction, hearing bill, issued and the on the application therefor, was denied. The Canal Bank Company &Trust then filed the bill here under considera- tion, afterwards the Federal court dismissed the bill injunction pending for the therein. present

Prior to the institution of the suit, the Canal Company Bank & Trust other of Brewer’s creditors petition praying a filed in the Federal court, that Brewer adjudged bankrupt property disposed be and his accordingly. complaint The bill of here involved was filed bankruptcy petition pending while the and before any adjudication dispo- thereon had been made. What finally by sition was made thereof the Federal appear. does not here maturing-

The five Gidden-Townsend notes are the last by notes of a series ten that were executed Gidden and Planting- May to the Townsend Richardson & & Land Company, by were of trust on land. secured deed McNally note sued on is one of a of ten Clarksdale,

Planters’ of for a con- Miss., valuable president sideration. Afterwards of the Plan- Holland, ’ personal Bank, ters borrowed on Ms note four hundred from the Missouri Life thousand dollars State Insurance ’ Company pledged the use Bank, Planters and security as Nally all and Mc- therefor Gidden-Townsend requested

notes. Life Holland Missouri State Company permit him to five Insurance withdraw the maturing last notes the four last Gidden-Townsend and maturing McNally In- notes. The Missouri Life State permitted Company surance and him to returned this, do maturing to him the five Gidden-Townsend and last notes McNally- maturing’ notes the four on his last agreement trust bank’s that in the event deeds of by should be notes the Missouri foreclosed, the retained Company paid. State Life Insurance be first This should agreement by a contract, written and also was evidenced by by Hol- notation on the back of the notes withdrawn a McNally note here land. The notation the back of sued on reads as follows: (10) notes secured

“This is of ten one of series assignment on -condition is made trust and deed subject junior that the lien of this note shall be (6) maturing first as described lien of the notes six the six trust, case of foreclosure said deed paid (6) maturing in full before first shall be notes payment applied proceeds of sale shall this note.” notes Gidden-Townsend notation on the back of the except language in- to five it refers

is same that in the we maturing claims, of six last notes. stead agreement. of this shall that he informed assume, was the former case contentions One of Brewer’s liability on these as indorser he was released from agreement by Hol- notes virtue of this subordination ’ company the insurance Planters Bank with land and the March, 1927] Canal,-Bank & Trust Opinion of the Court. expressly adjudicated court, in its decree, thereby. he had not been released present

The.chancellor for the district in which the suit disqualified pending acting from therein, and so representing certified to the Governor. Counsel all parties agreement into a entered written that Hon. Sam I. Osborn, a member the -bar of Leflore county, try special Miss., should the case as chan- request, appointed by cellor, and he was at also, their preliminary the Governor as A such.

granted restraining Cutrer & Smith Mrs. Earline disposing Brewer Shelton from of the Gates and Bobo finally until Osborn, Chancellor who the as to dissolved Cutrer & Smith, retained it as to Mrs. Earline Brew- brought er Shelton. From that the decree, case was by appeal this on court direct Canal Bank & the Trust Company, cross-appeal by appellees. and on a the appellees following

The three contentions of the are without merit: by chancery

First. The decree in the rendered the court case of Earl Brewer v. Canal-Commercial Trust & Sav ings (now Company Bank the & Canal Bank Trust Earl Brewer), ap No. on thereof, the docket on affirmed peal adjudi dismissing to this сourt, cross-bill, bank’s cates that Brewer not liable to Canal & was Bank Company Trust on his of the Gidden-Town indorsement McNally liability seLid notes. Brewer’s on these presented LLoteswas not, could not been, have for de cision in that case. complaint

Second. That the bill of herein should be dismissed the reason that was while the suit filed in ‍​‌‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​‌​​‌‌‌​​​​‌‌​‌​​​‌​​‍the Federal court, to, district hereinbefore referred injunction restraining for an Cutrer Mrs. & Smith and disposing Earline Brewer Shelton from of' the Gates supreme and Bobo notes until the court of the United pending. States should decide case, was Bank & Trust Opinion [147 of the Court. That bill Third. should be dismissed for the rea- bankruptcy proceeding's that it was filed while the son pending. Remington 7 C. J. 349; 1 (3 Bankruptcy Ed.), section 463. Whether the court a final below’could render decree herein before the Fed- disposed bankruptcy proceeding eral has Orgill here which connection involved, see Bros. Coleman, So. 291. In case, former the claim of the Canal Company to a lien on the Grates and Bobo notes by pledge, pledges reason aof thereof made Brew- security any er the bank indebtedness due presented him or one bank, else to the for deci- adversely sion, bank, decided to the and is therefore res judicata. right The bank’s in the at case bar is that now only of an creditor. unsecured liability

Brewer was not released from his as indorser McNally оn the Gridden-Townsend and because of notes agreement by Holland that, Planters’ Bank mortgages securing in the event the should notes proceeds ap- be foreclosed, the thereof should be first plied payment to the those of the notes held Company. appellees’ Missouri State Life Insurance agreement contention this is, effect, fraudu- way lent alteration of the notes. The were notes in no agreement. only altered with It deals and affects application proceeds to the agreement security, affecting is one collateral not. provisions embraced within of section 120 of the Ne- gotiable chapter Law; Laws 244, 1916; Instruments of Hemingway’s Negotiable section Code; Brannon’s (4 Ed.), p. but is Laws controlled Instruments (section Code), Hemingway’s 196 thereof which reads follows: provided any case in this act the “In not rules ’’ equity govern. including merchant

law the law shall 1927] March, Bank Miss,] Opinion of the Court. agreement, applica

When this with reference to the proceeds securing tion of the deeds of trust all the notes notes, made, held were the Plant right assigning Bank; ers’ and had some themof agree assignee paid that the be first out should proceeds of the deeds of trust. 41 C. J. Bank England, Pugh Tarleton, v. 23 Miss. 173; Holt, 27 Miss. College Prentiss, Trustees of Jefferson only rig*ht McCandless, Goar v. 60 Miss. 244. The this action if is that the manner in which the security impaired for the notes here dealt with the value security, operated injury, of that to his he would liability released from as an indorser on the notes to injured thereby. Payne the extent that he has been v. Com Clopton mercial Natchez, Smedes M.& Spratt, 52 Miss. Barkwell Swan, So. Shantz, Picard v. So. 544; 8 injury C. J. R. L. 1279. C. No shown have agreement resulted to Brewer because made ’ Holland and the Planters Bank with the Missouri State Company. probable, Life Insurance He must show, injury indulge actual, therefrom, and we cannot any speculation might happen. as to what question

The bank claims that ad- decided versely litigation, to Brewer in the former also that estopped claiming liability he is from release from agreement, because of this for the reason that when the bank made him one of the loans under consideration in litigation, agreed, the former make he before bank would loan, that he would not claim to have been so necessary express any released. It will not be for us to opinion on either of these contentions. setting validity

Without forth the evidence as to the assignment vel non of the of the Gates and Bobo notes by Brewer to Shelton, Mrs. & Smith, to Cutrer it will say be sufficient to that the court below committed no retaining injunction against error in Mrs. Shelton until Judges the case should be tried its merits. Mo Canal Bank & Trust Co. v. Brewer.

Opinion [147 of the Court. opinion and Holden are also of the Ethridge, Gowen, injunc- dissolving in that no was committed error Judge Smith; tion but Cutrer & Andеrson, Cook, opinion injunction are of the this and Smith that should until have been the case tried on its merits, retained say meaning thereby that when' the case tried should no event its merits be dis- merely sufficiently appear but solved, that does not from presented assignment that the evidence now this will be finally held to be valid. being case No. a heard,

While 26527 was motion was hearing made to continue the a suffi- overruled length appellants cient deposition time enable the to take the they just a who, had witness, discovered, testify they to facts which would demon- claimed would assignments strate the Brewer to Mrs. Shelton and to Cutrer Smith to be fraudulent. The existence this appellants was evidence unknown to the when case No. they tried in court below; have filed requesting a motion in that this the case be re- hearing decision, without a for the the chan- manded, newly-discovered cellor of evidence. this have no We precedent authorizing remanding statute of cause hearing to the court below for the of evidence discovered judgment appealed after the or decree from is rendered. inject procedure So to do into of this court a would though probably novel, commendable, element; new and opinion are of the as the law now is the mo- we consequently, sustained, and, tion cannot be it will be overruled.

Coming to case No. 26527: After case now No. complainants appealed sup- court, filed plemental setting forth that exe- below, bill the court garnishments being were on the de- cutions and issued litigation first cree between bank rendered assign- which decree was also Brewer, included & Smith, ments Shelton and of Brewer to Mrs. Cutrer money permitted pay prayed ad- that it Canal, Bank & Trust 1927] March, Opinion of Court. judged into decree and that court, to Brewer money pend- appointed and the be to receive receiver hold present litigation; ing' the in- termination of the junctions attempts restraining to be further col- issued money by adjudg-ed lect to that decree; the Brewer and necessary for certain relief not here to be forth. other set prayer appointed A in with receiver was accordance the supplemental money adjudged of this the bill, and to be by paid by to him due the court was over the injunction, bank. A motion was made to dissolve this to discharge pay money receiver, the to direct him to and the assignees. in Brewer, his hands or Brewer’s This over to presented special motion to chan- Osborn, was not .the appointed agreed trial case, cellor on for the Sledge presented but to of the Third dis- was Chancellor by accompanied the chancellor trict, a certification from pending, in the district, the which case was Seventh try disqualifiсation requesting cause, his to the Sledge to act therein in his stead. Chancellor Sledge Chancellor district, the Seventh Clarksdale, went to in in vacation. When the heard motion decided the appellants filed a trial, was written motion the called by Sledge. objection being This to heard its Chancellor objection grounds: Sledge First, on two was based power the out- motion was without to hear and determine elected; and, which he had been side the district for by be- that the motion should heard Osborn second, agree- appointment and the his Governor cause of the parties to the into the ment relative thereto entered litigation. the and after overruled; This motion sup- granted injunctions on heard, evidence discharged plemental dissolved, the receiver bill were money pay by him to Brewer’s held and directed to assignees. Sledge objection jurisdiction of Chancellor

The to Consti- 165' sustained. have been Section should attorneys engaged recognizes right ain case tution disqualified regular judge or chancellor in which &¡ Cu. v. Brewer. Opinion [147 of the Court. agree “upon preside a member of to the bar his place;” (Hemingway’s Code and section of 1906 716), expressly provides Code, that such attor- agree. neys may sections so These of the statute and the provide appointment by also Constitution special judge try or of a chancеllor to case Governor regular judge disqualified which the or chancellor is when attorneys agree fail in the case a member of try the bar to it. ’ appellees contention this connection is: That by agreement bar a member of the selected of counsel appointed try the Governor case in which the regular judge disqualified chancellor is vested there power only with no act in case in vacation, power time; with so to do term and that matters that regular judge in in in vacation a which the arise case disqualified presented chancellor is must be to and acted by judge on of a or chancellor another district, under sec (Hemingway’s 718). tion Code, Code of section by Kelly case, The relied them State, 79 Miss, 49. That case in 168, So. was a circuit the court where special by judge, appointed in a the Governor of because regular disqualification judge, disposed and heard being a case in vacation, of the character of the case such that could been and have heard vacation determined in by regular judge. the The court, hesitation, with some only special judge that a in could act term and time, held questions arising that in in case vacation be sub a should by regular judge mitted to and of an determined other district under section of Code same (Hem now statute numbered section of 998, Code 718). ingway’s appears section In case Code, that there agreement to have been no counsel relative to mat right recognition The ter. section of at torneys engaged agree in a it case to that be tried shall by recognize right member a of the bar seems to try dispose agreed the bar to member of so questions might whether in all arise in the case & Trust 1927] March, Opinion of the Court. 996«, and section Code of vacation, term time or 716), (Hemingway’s not, section it Code, unless should right. that, expressly provides, so be construed narrow preliminary where a has been In most cases necessity passing on a motion to dissolve issued, prac- frequently the decision of which vacation, arises good ap- tically brings no end, the case an reason legislature pro- pears why have intended to should attorneys agreement the case that such hibit an special chancellor in va- motion should be acted on (Heming- section Code of Moreover, cation. expressly provides way’s 262), that a chan- Code, parties may, or their solici- the consent cellor with opinions “try sign causes and deliver and make tors, in vacation.” statute is not limited therein This decrees regular see no reason for so limit- chancellors, to ing and we thereof. construction strained agreement with trial reference entered into every phase of coverеd of the case Chancellor Osborn try stipulates expressly dis- it, and he should pose arising either in term time 'or therein all matters regular district had chancellor of the vacation. The disqualification already and there case, in the certified his disqualifi- again certifying such occasion his was no try Sledge requesting him to cation to Chancellor injunction. This certification to dissolve the the motion right Sledge’s request nothing to Chancellor added (Heming- try of 1906 998, Code for section case, application, way’s 718), as there no has Code, agreement special of the the who, under chancellor power attorneys, dis- with to hear and full was invested injunction. pose The chan- to dissolve the the motion of jurisdiction for being hear the motion to cellor without necessary just for us not be it will forth, set the reason having the of heard his effect his decree determine the by coun- Questions discussed case outside of his district. opinion, are specifically in this not sel, and referred decided. not Miss.—58. Bank &

Separate Opinion. [147 Miss. The decree rendered Chancellor Osborn in caseNo. affirmed, will the be and decree rendered Chan Sledge in case No. 26527 will be the reversed, cellor and appeals in both be remanded. case will in case reversed in No. case No. 26527. Affirmed

Separate Opinion.

Ethridge, J. powers Judge Sledge,

In to the of desire to reference I Judge say agreement Osborn, I think the under appointment by power Governor, to deter- had in the suit both in vacation and mine all issues involved of time, term under section 165 which Constitution, follows: reads as any preside judge

“No- court shall on the trial of of any parties or be cause, them, where the either of shall consanguinity, affinity or or with him where connected may except same, in the the consent he interested any parties. judge judge of the Whenever any supreme judge or the or chancellor of dis- any reason, be unable or shall, trict this state dis- any qualified preside court, at term of or case attorneys engaged agree therein shall where preside place, in his member the bar to Governor knowledge, may law another, commission or others, disability during preside or or such dis- such term at judge judges qualification place dis- so ’’ qualified. this section It will’be seen from Constitution regular provided judge is dis- therein in the cases qualified judicially that the Constitution all, to act at appoint- providing for the constitutional scheme vesting disqualification, judges ment of case regular judge powers appointees all the with such judge fully completely regular could exer- as such disqualification powers existed. if such no cise said Bank & Trust Co. Brewer. March, 1927] Separate Opinion. Kelly State, 79 Miss. 168, So. the court 49, In 165 of the Constitution- at hut all, refer section did not special judges said with reference to said what was was upon of section 922 of the of 1892. a construction Code Lopez 461,

In later case Jackson, the special judge appointed that a -court held So. the empowered of the Constitution under section 165 was stenographer’s sign approve notes of evidence and to the by special exceptions cause such hill of in a the judge, tried although 920 of the Code of the and p. inconsistent therewith. Laws of seemed to be 1896-, opinion, the court said: In the course of the inconsistency to be some between sec- “There seems 920 and 921 of tion of the Constitution' sections and brought being from'the which, forward the Code of 1892, as to were not revised so harmonize with Code spirit the Constitution; said section 165 of the may though seem- out, the ingly is to be carried Constitution subject. upon think with the We conflict statute appointed person com- makes the and the Constitution preside at the trial of Governor missioned particular being court for the time case in the circuit judge, judge the trial court, for that case the perhaps judge; the court the minutes of that, while judge, signed regular all orders the. to be are all pertaining conduct, bills to its merits or case special judge, exception . . . be made such should ’’ by him alone. 40 So. Crook, In Commission Hall judge regular the su that where a court held 20, spe preme disqualified illness, reason of during appоinted try judge such illness cases cial regular judge participated after the decision, suggestion it was recuperated filed, of error participated judge special therein, disposed of, and overruling the the order a suggestion made to set aside motion was special ground upon of error judge regular as- judge’s authority expired Canal Bank & Trust v. Separate Opinitin. [147 Miss. suggestion suming duties, his of error should composed disposed regular the court be judge of the Judge opinion, In thereof. said: Whitfield- special judge appointed a “The law seems clear that try part special every- to a case will take in the decision of thing relating suggestions to that cause, etc., error, p. on included. Courts and Their Jurisdiction, Work clearly, Judge That is not this case. Here, Harper’s power special judge period to act aas to the limited Immediately upon sickness of Chief of the Justice. disability say, the termination of that is to when —that power Justice resumed his duties—the Chief of the special judge at terminated.” once discussing

After two the court authorities, continued as follows:

, “The cases to in on referred Work Courts and Their p. special Jurisdiction, notes are cases of try judges appointed special to are, causes. We there- opinion, fore, both on these authorities rea- principle, power special judge son and that the of the only during in this cause of the Chief еxisted sickness upon resumption Justice, and ended of the bench say, upon expiration the Chief Justice —that is to disability (sickness) of the Chief Justice.” special It will a be seen from these authorities that judge appointed try special a has can exer- cause powers regular judge. in cise all the vested Hemingway’s Of under Code of course, (section Hemingway’s 1927), judge Code of may disqualified disposed matter he is set a which adjoining judge district, of in vacation an the- certify disqualification if he Governor, his to the should special judge, appoint the Governor should under may judge special Constitution, section 165 of the such dispose or matter before him whether in vacation term regular terms time under the same conditions and as judge special

judge for the could. The scheme is judge particular purposes he cases to be the for all March, 1927] &¡ Trust Co. Dissenting Opinion. appointment, period during his in which

tries under presides. he points by Judge

On the McGowen dis- covered his expressed concur sent, I with views therein. the' McGowen, J. (dissenting). agree with the conclusion announced in the

I do opinion, agree- main the effect of the subordination by the Life ment entered into Missouri State Insurance subordinating Company Holland and W. P. several payment of notes to the like number of the series prior point of time due the subordinated series, notes. McNally statement on the face of note: contained this each

herein ‘‘ ’’ by of This trust even herewith. Secured deed of dаte . face of executed, was on the the notes when statement by subsequent to' execution and when indorsed delivery, part of be was material the notes and any part they as as of altered, were much so other fore Bay Shrader, 50 Miss. the touch 326, said, it. In point: ing or such memoranda” indorsement was this “If they “when executed, “on the of the” notes made back ” part Key Cross, of the 23 Miss. constitute contract. entry Effinger the 540. The on Richards, immediately face on the the notes sued reduced back of any It a, market in the world. was of the notes in value patent Company & Trust the Canal Bank alteration, and seeking It the on notes. took them with to recover the is seeking patent to recover the is now alteration, to on his indebtedness to be credited Holland, benefit of shape in their the notes altered it took therefore it, knowledge alteration. the with- controlling, before material, alteration was

The they they were secured fact that were altered to an- inducement secure been an deed must have trust especially when the this true is them; other indorse to v. Canal Bank & Trust Opinion.

Dissenting [147 Miss. they record were indorsed at a time shows when the surety obligation any was under no kind indorse Before, they plainly the' notes. were altered, the notes provided they pro a- receive share would with rata proceeds all the other notes of the of a sale under the pro ‍​‌‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​‌​​‌‌‌​​​​‌‌​‌​​​‌​​‍equal trust deed, rata and share other agreement notes. After the was entered thereon,, right destroyed, legal effect note ma- - terially changed, rights parties of all the obviously changed. the contract It makes no difference whether this subordination agreement was written on the face or opinion degree cited the main do not in the remotest question surety, affect the of the release upon surety effect of an alteration of this kind under existing statutes.

Section of Uniform Laws of Annotated, volume 5 Negotiable (Hemingway’s ¡Act Code, Instruments 2697), section reads follows: as 1‘ Discharged. negotiable Instrument; instru How —A discharged: isment 1927] March, Bank & Opinion. Dissenting . .

“1. .

“2. n . . “3. . discharge simple any By will a other act which “4. ’’ money. payment of contract for Negotiable Instruments Act, Uni- 125 of the Section 2703), (Hemingway’s Code, Ann. form Laws vol.'S defining is, material alteration, what constitutes a part, follows: as changes:

“Any which alteration ...

“1.

“2. . . . “3. ...

“4. place payment where adds a of . . Or which “5. . change specified, place payment or other is no of cmy the instrument alters the addition which effect ours.) respect, .(Italics a alteration.” material is (sec. Hemingway’s act 124 of same Section Code), as is follows: ‘1 nego Instrument; Alteration of.—Where Effect materially as altered without tiable instrument except as parties avoided, it is thereon, liable sent of all party as authorized or made, himself who has subsequent indorsers. alteration, sented materially altered has been instrument “But when an not a course, in due holder in the hands payment may thereof party enforce he alteration, to the original according tenor.” to its being collateral as for.the sued

These notes are the altera- made holder, Holland, note. Holland maker’s or the consent Brewer’s tion without himself, consent. subject case of alterations, (Ind. material

On the Sup.), N. E. Fayette Born v. Auto Co. La illuminating effect as to the that court is this statement by the Negotiable Act adoption Instruments said: that court states, several wherein Trust Co. & Bank Canal [147 Motion to Correct Decree. On adoption Negotiable of this “Since Instruments (Law arrangement the tentative it under have uniform policy throughout it all of the states has been the of the liberally the law in the courts construe interest of uni formity. Many opinions of different have courts stated the material that the law relation to alteration of an public policy, upon instrument in that, rests to maintain integrity surrounding party relations, commercial no- permitted guise to be should benefited under obligation of alter the written another without his au thority open or assent. To do otherwise would a door perpetration to the of all kinds of inasmuch fraud, as especially paper, written instruments, and commercial are passed through the hand, from hand to hands of citizens, many clearing banks, houses, hundreds and even party parties miles thousands of distant from the to be possession bound, who have whatever over no control pre of such on account instruments, and of which cannot any person possession doing vent in the thereof from might therewith as his inclination dictate, in utter disre gard honesty good conscience.”

When this note came into the hands Company & Trust this alteration was as manifest and open paper clearly as to view shown out on the Mississippi, as chalk marks In blackboard. we Negotiable are controlled Act; Instruments might whatever have been law act, before this under the decisions of our courts now the statute in Mis- sissippi discharges that a alteration material the instru- ment. opinion. JJ., concur Ethridge,

Holden On Motion to Correct Decree. opinion of J., delivered the the court.

Anderson, appeal This cause was before the court on from an interlocutory principles. governing to settle decree its Canal Bank al., 525. The Trust Co. v. So. et 1927] March, Canal Bank & Trust Opinion Court. . appellees decree the court below was as to affirmed interlocutory appealed Cutrer and Smith. The decree injunction temporary restraining ap- from a dissolved péllees disposing Cutrer and Smith from of certain notes. Appellees affirming contend that the decree of this court appellees the decree of the below toas Cutrer and they Smith erroneous, in that were allowed five per damages against appellant cent value the of the disposition by appellees the of notes, which Cutrer and enjoined; appellees being Smith was the claim of such allowance should have been made under section (Hemingway’s of question Code 1906- Code 1927, section 3107). presented The on motion decision by appellees, suggestion which will be a treated as of er- respect. ror, to correct the in decree question upon proper turns the (Hemingway’s involved construc- tion 1926-,Code of 1906 Code 3107), 1927, section in taken connection with section chapter (Hemingway’s Laws o'f sec- Code 9), tion which follow in the stated: statutes order Judgment (3202). “3107 in Certain Case. States of judgment —-In case the decree or court below be the appellant prosecute appeal affirmed, or the fail to his supreme judgment against to effect the court- shall render appellant damages, per the at the rate of centum five judgment costs, as follows: If or decree affirmed upon money, damages be for such sum of shall be a possession judgment If or sum. decree be for the personal property, damages real or shall assessed be property.; judgment or on the value of the if the decree injunсtion for the restrain- be dissolution an or other process damages ing’ chancery, in at or shall be law computed appellee en- on the amount which was due joined judgment or if or for the restrained; decree be restraining proc- dissolution of an or other property, personal, certain ess real or or certain property, judgment in or for the interest decree or be satisfy property, a sum it, sale of or in some interest [Sup.' Ct. Trust Canal Bank Opinion [147 of the Court. proceeds sale, or to of the enforce or establish out upon prop- charge claim or interest or or some lien complained erty, only appeal on the matter and the particular property claim on as to some or is the decree damages computed be on the shall value it, the property property or interest in if the value of the it, judgment than or or against it be less decree interest property or it; but if the value of interest judgment greater or than the amount decree it be damages shall be the amount of the it, the judgment decree.” or Interlocutory Appeals Decree, How Order “9. from may appeal Allowed.—An sound discretion

and When granted by vacation, time, in term or in the chancellor whereby money any interlocutory or order, decree from possession paid, property requirеd to or the is be changed, having or a de- or when sustained overruled may appeal proper think an in order murrer or motion he principles controlling the the in all to settle involved delay; expense exceptional cases to avoid or in cause, given applied appeal be and bond but such must appealed thirty'days order or within after the decree proper in whether the be from is the office decision filed appeal if must in term or in vacation. Such time allowed by chancellor, he shall be court or deter- allowed the operate supersedeas appeal shall as mine whether the may approved by appeal the court or but the bond be not, appeal is case such an chancellor, clerk; or or the may it nevertheless be allowed refused the chancellor provided supreme judge in section as the Mississippi 1906.” 4908, Code apply interlocutory as statute to well Does the former per damages as final decrees? It cent allows five penalty applies against unsuc- which it cases appeal. appellant wrongful allowance This for a cessful compensation to the successful in the nature also through appellee expenses him incurred adversary. Tigner wrongful appeal by McGehee, his March, 1927] Bank & Trust v.- Opinion of the Court. Boyd Applewhite, Miss. 185, 85 So. 87; Davis Wilkins, So. The stat strictly ute, therefore, must be construed party. claim language of the successful It true the enough appeals the statute is broad to cover from inter locutory decrees as well as final decrees. construing

In statutes, however, chief aim the legis courts be to should reach the real intention of the bring manifestly A lature. construction which will about unjust unthought-of pos results if will avoided, necessary sible, and, if to avoid such results, the courts will Kenning widen or narrow letter statute. Hemingway, ton v. L. 39 R. A. 57 So.

(N. S.) Kennington 1914B, Ann. Cas. 392. In quoted, approval, case our court with what was said Queen Lord Clarence, L. R. B. Di Coleridge Q. vision 65. In that case Lord used the follow Coleridge ing language:

“In such a matter as the construction aof if statute, logical apparent language construction of its leads impossible results which is believe those who passed contemplated, framed those who statute judgment and from which own recoils, one’s there is in my opinion good believing reason for that the construc- tion which leads to such results cannot be the true con- ’’ n struction statute. apply interlocutory

We think statute to decrees many unthought-of bring cases would about and un just contemplated legislature results never results, the adopting Take, the statute. for the illustration, case appeal interlocutory in hand —an from an decree. There appellees was an affirmance as tо Cutrer Smith, but the whole on cause remanded for trial its merits. entirely On another trial an different case its facts may presented be for the decision of the court. The may appellees court reinstate the toas Cutrer permanent, Smith, make it under the law justified may doing-. the if facts be so that And, v. Canal Bank

Opinion [147 Miss. of the Court. ap be, result will if the the statute done, should be appellant plied, been will of have mulcted that thousands wrongfully up damages bringing this cause dollars of to this court. interlocutory appeal from an under

In decree order (Hemingway’s chapter of 1924 Laws section joint 9), it the action section takes Code appellant appellant. wrong If the commits and the appeal, appellee taking grant- the the court the appeal appeal party wrong. ing An under is a interlocutory an decree to settle that from statute appeal principles all for the the case an benefit parties purpose It for its the correct to the cause. has progress guidance in the of the trial court further appellant may Although unsuccessful, case. may appeal be as much the benefit result of such an appellant. appellee We cannot believe ap- legislature punish an unsuccessful intended to the pellant pro- mulcting damages him in the in such case (Hemingway’s of 1906 Code 4926', Code vided 3407). opinion, therefore, are of 1927, section We only applies de- decrees, to final such the latter statute complaining party gives to the crees which the as to law applies right appeal; that the alone an statute absolute appellant is the sole cause to cases where the unsuccessful wrong appellee. That is not done the successful interlocutory appeals true of from decrees. impression. question first All of the is one of per damages know where five cent cases have we appel- the successful been allowed under státute appealed from final and hot interlocu- lee decrees were tory damages have been allowed in decrees. If the interlocutory appeal involving decree, an from case an point objection without the occurred has without being presented court. and decided appellees’ It these views that motion follows from should be overruled.

Overruled. attorneys assignment properly held dissolved as to insolvent assignment daughter. legal and retained services alleged Preliminary injunction, fraudulent as- suit to set aside notes, therein to signments interest one-half insolvent recovering pos- legal attorneys services in consideration for Canal Bank & Syllabus. [147 Miss. notes, daughter session of and one-half interest to for a recited assumption consideration of cancellation debt her by assignor wife, debt properly due to his held dissolved as re-

Notes

They owing received to it Holland. dollars Mr. were present good bank faith, loan occu- and in purchasers pied position and now then bona-fide Security, sec- for value. holders Jones Collateral Ed.), (10 Tyson, page Pet. 105; tion page v. Swift Brooklyn, Bank, R. Co. v. Nat’l etc., R. 865; Tidly, Smith 456; La. Ann. 26 L. Ed. Diccv. 454; U. S. Gaiennie, La. Ann. La. Bank v. Isaacs, v. State Ann. Mamvell, Ann. 27 La. L-a. Gardner Steeg (La.), Bank First Nat’l So. Godifer Joyce on Defences to Commer- McGrath, Paper, N. 169 C. Hill, cial Nat’l Am. Security, section E. Jones on Collateral 85 S. Brewer or to collect If the bank failed to sue had McNally its notes to the best of Gridden& Townsend and ability, failure. to Holland such would liable

See Goar v. Pugh 468; 248; Hold, 60 Miss. v. 27 Miss. McCmless, Cheesborough Prentiss, Trustees v. 29 Miss. v.' Mil- 494); (7 liard, 1 John. Ch. Am. Dec. Union Bank Marylcvnd Edhvard, v. & First J. Nat’l Bank Gill v. Powell, Swann, 149 S. Barkwell v. Miss. W. Spratt, Clopton Shants, Picard v. 70 Miss. Payne Telliaferro, Miss. Chaffee Bank, Commercial 6 S. M. 24. entirely solely All of the cases have reference above surety this case insist that the notes. In we Mr. surety, cousin, Brewer, Brewer is not nor is Mr. Ed. his surety; they equity are both in in law co-makers England, and under the decision of Tarleton they McCanless, and Goar v. say absolutely nothing- with to whether have reference the others not some of the notes are subordinated point security the trust deed. under Heming- Negotiable Act, The Instrument may way’s provides dis- instrument be Code,- how an secondarily charged parties concerned, liable are so far as discharged. way only can March, 1927] Bank & Trust Appellants. Brief for suretyship abrogated by Negotiable question Instrument Act. Nat’l Merchants Bank v. '59 Smith,

at- his these his say regardless daug’hter. his We pledge, any or or the renewal notes written whether “paid,” possession of the Gates had marked been complete Bank full and Bobo notes the Canal assignees actual constructive notice to the right claim and title that the Canal Bank had to Pondir, Bobo notes. Muller 55 N. Y. said Gates and Securities, 14 A. R. Jones on Collateral sec- S. Appellants. [147 Brief for Payne, page 99; tion Buck Brown v. (Miss.) 5 TIow. 387. Smith, assignment fraudulency Mr. Brewer from E'arline Brewer call the at- Mrs. Shelton. court’s 'We points following tention to the law denominated writ- being badges ers as of fraud: (1) Failure to record within time. reasonable In this connection we call attention to the fact the as- signment daughter from Mr. Brewer to his was dated January and not 24, 1925, recorded until November assignment 1925. The made Mr. Brewer to attor- his neys, Messrs. Cutrer & December Smith, was dated 1923, and not recorded until December 2, 1925. See page L., B. Polk, C. Polk (2) property The value of the exceeds the amount page the debt. R. L., See C. v. Whit-

reason con Bobo Gates to the hundred, and two hun in renewal notes tained one and, twenty-five dollars, thоusand executed Feb dred ruary, November, 811, 932; 1922. C. J. 1922,and due Hardy O’Pry, (Miss.) 290’; v. Boone, v. 86 So. Richmond Pi- effect, to the Hart v. See, also, 197. same 102 Miss. Hamilton 67 Miss. card, State, 75 Miss. v. Perry 443.; 49 Miss. C. 847, 941, 943; Lewis, C. v. J. Judgments, Keokuk 2 Black on J. 858, 152 Ú. S. Missou-ri, S State Western R. R. Co. S., 258 S. !L. Mac. Co. v. U. U. 450; United Shoe 38 Ed. L, R, page 950; J. L., 466 Ed. 15 C. C. 456', citing 214 Fed. Drake, 536-, Co. v. Union Central L. Ins. 82. C. C. A. appellees. Yerger Cook, Roberson, Sledge plea jurisdiction Chancellor I. The to the properly interposed by overruled. the Canal Mis- is well contention, It the law our settled authority special judge sissippi, vacation has no jurisdiction. Kelly 168-. Section State, 79 Miss. or point. Hemingway’s Adams v. See, also, Code is 718-, Kyser, O’Brien, Martin v. Buckley, Grinstead foregoing the fol- decisions -and the the statutes From appear propositions lowing settled: to he well disqualified, (1) regular chancellor That if the try may agreed upon or the cause member of the bar may the decision Governor, be commissioned given approved must be of the bar member judge, regular judicial signature who force authority judicial con- under the with alone is clothed stitution ; appoint- agreed (2) special judge thus That a powers him in va- decision ed has no vacation judice; am cation is cor non Bank & Trust Appellees. [147 Miss. Brief for (3) in an That defendant suit has right statutory move a dissolution of undoubted ’

McNally IV. The Gidden Townsend and altered materially changed, herein had been liable Hem- thereon released. secondarily and a party Schrader, 50' Miss. Bay v. ingway’s Code, Bichards, Gross, v. 326; Kay Effinger '598; v. 1 R. L. note 799, 977, _ sec. 15. C. Extended é Kurth Farmers Merchants Rep. 115; Am. St. note Bank, State Extended Rep. Am. St. Davis Sims, 33 Ark. Anderson Am. Rep. St. Band, Farmer Eppler, Pac. Kans.

which hold security the debt due-it it thereof as a had made to pledges had or more and under two Holland, security indorsement notes as for his made to it of the McNally notes, and the Gidden-Townsend president alleged of the Rich- that Brewer was cross-bill Company, May Planting Limited; ardson & Land & dissipated appropriated thereof, the assets he had proceeds among Gidden-Townsend were which McNally liable to account- for which he notes, was Company, May Planting & Richardson Land & Company right should be Bank Trust whose accounting. subrogated, prayed an for such Gidden parties McNally suit, to the were not Townsend and sought Brewer on his indorse- no decree on. In cross- notes, the ones here ment their sued they the fact that the bank to reference made bill,

Mrs. Earline Brewer Shelton, consideration recited being therefor cancellation a debt due to Mrs. Shelton of fifteen thousand dollars, and the as- sumption by Mrs. Shelton a debt due Brewer to thirty-three amounting- his wife, four thousand hun- forty-three assign- dred three dollars and cents. This days assignment ment was a few after recorded Cutrer & Smith was recorded. supreme On the affirmance case court, Gates notes, Bobo which then were in the hands of a dispose receiver, had who been to hold and directed might as the decree, them rer delivered to were Cut- Smith and Mrs. Shelton the receiver. The case supreme was carried to the court of the States United

series May McNally & the Richardson & executed Land Planting Company, deed trust on secured any stipu- land. Neither of these deeds of trust contain giving any thereby priority lation of the notes secured application proceeds over the others thereto of the of the in the land event the of trust should be fore- deeds closed. The notes weré Richardson & indorsed May Company Planting Land of which Brewer was & Trust Opinion [147 Court. president, personally, and Brewer delivered to the

the case heard; should be and motion appellees ‍​‌‌​​​​‌​‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​‌​​‌‌‌​​​​‌‌​‌​​​‌​​‍for its dissolution was filed heard

the mort- gages by they In which are secured. other words, the

The Gidden-Townsend and sued

Burgess back. 1 R. L. 799; Id. 977, C. section 15; Rep. Blake, Am. St. 115, section 2; Kurth v. Farmers’ S.) (N. 77 Kan. Bank, 798, M. 94 P. 15 R. A. L. Rep. 127 Am. St. 1 R. L. 967, C. section 4; Sanders Bagwell, v S. C. S. R. E. 7 L. A. . Cole, Lauderdale v. So. separate upon Those notes on here are sued debts which liability defendant determined instrument bility not what itself, and the defendant’s lia- may may paper.- not be some other question presented right recovery against here as - paper presented the indorser on the as as altered. Nei- ther the Canal Bank nor could Holland contend Company opposition the Missouri State Life Insurance agreement. They to their solemn were bound it, surety, did bind maker or the the cases

Case Details

Case Name: Canal Bank & Trust Co. v. Brewer

Court Name: Mississippi Supreme Court

Date Published: Jun 6, 1927

Citation: 113 So. 552

Docket Number: Nos. 26344, 26527.

Court Abbreviation: Miss.