1 Fla. 37 | Fla. | 1846
This is an action of debt, instituted by Robt. W. Williams, Trustee, &c., against Frederick R. Cotten, in the Superior Court of the Middle District of Florida, for Leon county, upon a written instrument, a copy of which is contained in the bill of exceptions, that makes a part of the record in this cause.
The declaration contains two counts — the first upon said written instrument, and the second upon an account stated.
The pleas are — First: Non est factum — (not sworn to.) Second: A special plea, alleging: “ That long after the said writing obligato ry had been signed, sealed and delivered, by John'S. Taylor, John Taylor, and Henry B, Bradford, to Wm. B. Nuttall, Hector W. Braden and Wm. P. Craig, as their joint and several deed, and long after it had been endorsed and assigned by the said Braden, Nuttall and Craig, to the Union Bank of Florida, and long after the death of Wm. B. Nuttall, one of the obligees, the said Union Bank procured him, the said defendant, to sign and seal the same, as one of the joint
To the second and third pleas, the plaintiff demurred specially. To the second: “ Because the same is inconsistent, insensible, irregular, and defective, and is equivalent to the general issue.” To the Third: Because the same is defective in this — that it avers the said bond sued on, was altered and materially changed, without stating that the same was done without the consent of the defendant; and because the same is inconsistent, argumentative, irregular and defective. To this demurrer there was a joinder; and after argument had thereon, the demurer was sustained in the Court below. The case was submitted to a jury, upon the issues made upon the other two pleas; who returned a verdict for the plaintiff, viz : “ That the defendant owed the debt in the declaration mentioned — three, thousand two hundred and six dollars and twenty-five cents, and nine hundred and forty-eight dollars and sixty-one cents damages; making together the sum of four thousand one hundred and fifty.four dollars and eighty-cents, (besides his costs) — and for this sum judgment was entered. On the trial of this cause in the Court below, the defendant tendered his bill of exceptions, which was signed, sealed, and ordered to be made a part of the record, in the words, following:—
Be it remembered, that on the trial of this cause, the plaintiff proved the signatures of John S. Taylor, John Taylor, Henry B. Bradford, Noah Thompson, and Frederick R. Cotten, (the defendant,) to the bond; and the hand writing of Hector W. Braden, William B. Nuttall, and William P. Craig, to the endorsement on the bond, and offered the said bond in evidence.
$3206 25-100. On or before the first day of January, one thousand eight hundred and forty-two, we and each of us promise add oblige ourselves, our heirs, executors, and administrators, to pay to William B. Nuttall, Hector W. Braden and William P. Craig, or their order, the just and full sum of three thousand two hundred and six dollars and twenty-five cents, lawful money of the United States, with interest thereon, at the rate of ten per cent per annum from the time the same shall become due until paid, for value received.— Witness our hands and seals, Tallahassee, the first day of January, one thousand eight hundred and thirty-four.
JOHN S. TAYLOR, [seal]
JOHN TAYLOR, [seal]
H. B. BRADFORD, [seal]
NOAH THOMPSON,
F. R. COTTEN.
Endorsed:
War. B. Nuttall,
H. W. Braden,
Wh, P. Craig.
Defendant objected to the said bond being read in evidence to the jury: Because there was no seal or scrawl to the name of Henry B. Bradford, Noah Thompson, and Frederick R. Cotten, to the bond ; and the same was therefore variant from the instrument declared on, not being the bond or writing obligatory of said persons, or of said Cotten, as declared on.
The Court overruled the objection, and admitted the said instrument in evidence, to which said defendant excepted ; and this bill is signed, sealed, and ordered to be filed, and made a part of the record.
Here the plaintiff rested his case.
Defendant had offered to prove by Henry L, Rutgers, that he was an officer of the Union Bank of Florida, in the months of January and February, 1838, when the bond in suit was negotiated to and
Defendants counsel thereupon requested the Court to instruct the jury:
1st. That unless the jury are satisfied, from the evidence, that,the addition of the names of Cotten and Thompson to the bond, was by the consent of John S. Taylor, John Taylor, and Henry Bradford, it vitiates the bond, and plaintiff cannot recover thereon in this action.
2d. That unless the jury are satisfied, from the evidence, that such addition was by consent of John S. Taylor, John Taylor and Henry B. Bradford, the plaintiff cannot recover in this case, as the proof is variant from the declaration.
3d. That if the jury shall believe that, Wm. B. Nuttall died in the spring of the year 1836, and that the defendant signed said bond after his death, the said bond is void as to this defendant, and plaintiff cannot recover in this action.
4th. That defendant and Noah Thompson, having signed the bond after the death of Wm. B. Nuttall, there could be no delivery of the bond to him, and consequently the proof is variant from the declaration, and plaintiff cannot recover in this action.
5th. That if the jury shall be satisfied that the name of the defendant was added to the bond after it had been assigned to the Union Bank, that then the plaintiff cannot recover in this action.
6lh. That unless,the jury shall be satisfied that the name of Thompson was added to the bond by the consent of John S. Taylor, John Taylor and Henry B. Bradford, the bond was vitiated, and ren
7th. That there being no seals or scrawls to the names of Henry B.' Bradford, Noah Thompson and defendant, the proof is variant from the declaration, and plaintiff cannot recover in this suit by reason thereof.
8th. That upon the whole evidence the jury should find for the defendant.
The Court refused said instructions, and charged the jury that, upon the evidence, they should find for the plaintiff. To which decision and opinion of the Court, refusing, and giving said instructions, and in refusing to admit said testimony, deponent excepted; and this bill of exceptions is accordingly signed, sealed, and made a part of the case.
(Signed) SAML. JAS. DOUGLAS, (seal.)
Dec. 17th, 1844.
Whereupon the defendant prayed an appeal to the Court of Appeals of the Territory of Florida, which was granted. The cause was carried up to that Court,' and was transferred therefrom into this Court, pursuant to the provisions contained in the last clause of the 17th article, (Schedule and.Ordinance,) of the Constitution of the State, which is as follows: “ And all actions at law, or suits in Chancery, or any proceeding pending, or which may be pending in any Court of the Territory of Florida, may be commenced in, or transferred, to such Court of the State as may have jurisdiction of the subject matter thereof.” And also in pursuance of the provisions of the 14th section of the act of the General Assembly of this State, of July 25th, 1845, entitled, An act to organize the State of Florida, which was passed to carry into effect the above mentioned constitutional provision, so far as regarded, cases pending in said Court of Appeals, and is in the following words, viz: “ That all cases now pending in said Court of Appeals, shall be. transferred to said Supreme Court, and tried and decided therein and thereby, except cases cognizable by the Federal Court, which may be organized in this State, which shall be transferred to such Court.” And all writs of error or appeals from judgments, decrees or decisions heretofore given, or rendered by any of the Superior Courts of the Territory, shall be returned to said Supreme Court, and tried, and decided there - in, and thereby.”
On the first day of the present term of this Court, a motion was
First: Because it has no rightful place in this Court; and this Court has no jurisdiction of the sanie, no appeal or writ of error having been sued out, or taken to this Court; and this Court has no appellate jurisdiction in this cause.
Second: Because the judgment of Leon Superior Court is final, until reversed by the proper appellate tribunal, constituted by the acts of Congress of the United States.
Third: Because this Court has appellate jurisdiction only over those Inferior Courts, which the Constitution of the State of Florida hath established, and which compose with this Court, the judiciary powers of the State.”
This motion^ after a full discussion, at the bar, of the questions involved in it, was overruled; and it was intimated that, when the opinion of the Court should be pronounced upon the merits of the case, the reasons for the decision upon the motion would be stated. But since that time, Judge Baltzell has delivered the opinion of the Court, upon a similar motion, upon the same grounds, in the 'case of Charles D. Stewart us. Thomas, Preston, junior, and it has consequently become unnecessary to do more now than to refer to that opinion, in which all the members of the Court concurred.
We proceed, therefore, to consider the errors assigned, which are as follows, to wit :
First: That the Court sustained the demurrer to the two special pleas, and the plea of Nil Debit, improperly.
Second: The Court erred in permitting the instrument of writing, offered by the plaintiff, to be read in evidence.
Third: The Court erred in rejecting the evidence of Henry L. Rutgers, as set forth in the bill of exceptions.
Fourth: The Court erred in refusing to give the instructions prayed for by the defendants, as set forth in the bill of exceptions.
Fifth: The Court erred in instructing the jury that, on the evidence, they must find for th® plaintiff.
The first error assigned, involves the validity of the two special pleas. In one of these pleas, the appellant alleged that the bond was altered by the addition of his own name ; and the other, that it was altered by the addition of the name of Noah Thompson, and also of his. own; but he does not allege in either of them, that the alteration complained of, was made without his knowledge, license or
But it by no means follows, that because this allegation was of a negative character, it was not essential to the validity of his pleas ; or that if he had made the allegation, he would have been required to prove it. There are many negative allegations which must be alleged in pleading, which the party pleading them, is- not by law required. to prove. There is no difference, as to the rules of evidence, between criminal and civil cases ; what may be received in one, may be received in the other ; ‘and what is rejected in the one, ought to be rejected in the other. 2 Russell on Crimes, 588. The King vs. Watson, by Abbott Justice, 2 Starkie’s Reports, -155. And yet, in the case of The King vs. Hanson, where there had been a conviction for selling ale, without an excise license, the information negatived the defendants having a license-; but there was no evidence to support this averment; the only evidence to support the conviction being, that the defendant had, in fact, sold ale. The question was, whether the informer was bound to give evidence to negative the existence of a license. In support of the conviction, it was contended that such evidence was mnecessary, and that it lay upon the defendant to prove that he had a license ; for it is a rule, both of the civil and common law, that a man is not bound to prove a negative allegation; and the. case of the King ns. Turner, was cited, as an express authority upon the point. Abbott, Chief Justice, said: I am of opinion that the' conviction is right. It is a general rule that the proof of the affirmative lies upon the party who is to sustain it. In the ease of the King vs. Turner, all the learned Judges concurred in that principle. 2 Russell on Crimes, 693. 1 Hawkin’s PI. of the Crown, chap. 19, section 17. The" United States vs. Hayward, 2 Gallison’s Reports, 499. Upon the same principle, a very late case, the Apothecary’s Company vs. Bently, was decided: “ That was an action for a penalty on the Statute of
In the case of Speake and others vs. .the United States, 9 Cranch, .37, Mr. Justice Story, who delivered the opinion of the Court, said: “ It is clear at the common law, that an alteration or addition in a deed, as by adding a new obligor, or an erasure in the deed, as by striking out an old obligee, if done with the consent and concurrence of all the parties to the deed, does not avoid it; and this principle equally applies, whether the alteration or erasure be made in pursuance of an agreement and consent, - prior or subsequent to the execution of the deed; and the cases in the books, in which erasures, in-terlineations and alterations in deeds, have been held to avoid them,
The second error assigned, is that, “ the Court .erred in permitting the instrument of writing offered by the plaintiff, to be read in evidence.” ■ . •
One ground of exception relied upon in argument, was, that there was no scrawl or seal affixed to the signature of the appellant thereto, consequently it was not his deed, and therefore-’was variant from the one declared upon. There were five signers to this instrument, to the names of three of whom a scrawl was respectively affixed, as a seal — to the other, two there was no scrawl or seal affixed opposite to their respective names. But the appellant, by signing the instrü.ment, after those to whose names a-.scrawl was respectively affixed as a seal* and which, by our statute, is equivalent to a seal — (see the act to amend an act regulating judicial proceedings, approved 23d Nov. 1828, by the 36th .section of which it is provided, that “ a scrawl, -affixed as a seal, shall be as effectual as a seal; Duval’s Comp, page 96) — adopted the existing seal. .Two persons may make use of one seal in the execution of a bond, and it will be the
In the case of Lord Lovelace, Sir W. Jones, 268, it was admitted by the prosecution that, “ if one of the officers of the Forest put one seal to the rolls by consent of all the verderers, regarders, and other officers, it was as good as if every one had put his several seal; and if divers men enter into one obligation, and they all consent, and put but one seal to it, it is a good obligation of them all,” '■
It was held, in the case of Ball vs. -Demsterville, 4th Term Reps. 318, “ that if one partner in a transaction seal a deed with one seal, for.hitaself and partner, with his consent and in his presence, it is a good execution of the deed for both.” This is acknowledged to bé the rule in the case of Ludlow, et. al., vs. Simond, 2d Caine’s Cases, 1 — 42 and 55.
In the case of McKay, et. al., vs. Bloodgood, 9 John. Reps. 284, in debt on bond, it was held that, where one .partner sighs á bond in the name of the firm, and affixes one seal, it will bind the other who saw and approved it before the signing, and sealing, but who was not present when done. The principle of the two cases last cited is sustained by Philips on Evidence, page 416. .
But it was insisted in argument, on behalf, of the appellant, that to maké the' seal of one obligor the seal of another, it must appear by the instrument itself, that those who sign with that view, recognized the seal of the other party. If it be so, (and it is wnnecessary to the decision of this case to inquire into the soundness of this position,) the document before us concludes with these words : “ Witness our hands and seals.” . All who signed'it, therefore, recognized it as a sealed instrument. The case of Hatch vs. Crawford, Admr. 2 Porter, 54, is in point. It was an action of assumpsit upon a written agreement, which concluded as follows,’viz: Given under our hands and seals.” One signed and sealed, and immediately below his name, the other signed, but made no. separate seal. Plea, the general issue. .
The Court below excluded the instrument from-being read as evidence, under the issue in that form of action, on the ground that it was the deed of both. The Supreme Court of the State of Illinois, in the case of Davis vs. Burton and others, 3d Scammon’s Rep.. 44,
The third error assigned is, that: “ The Court erred in rejecting the testimony of Henry L. Rutgers, as set fqrth in the bill of exceptions.
The defendant put in a plea of non est factum, upon which issue was joined, and this raises two questions; first, whether the instrument declared upon is, or is not his bond; and second, whether if it is his deed, he is not estopped from saying in this suit, that it is not the bond of all who signed it. What the effect may be as to the rights of the parties who signed the bond before him, and at a different time, (if any of them did thus sign it,) we are not called upon now to enquire or decide ; that it is good as to him we entertain no doubt. He had a right to sign it at the time and under the circumstances that he did so, or at least he cannot have any right to set up his own act in this regard, to avoid his own deed. In this opinion we are borne out by the case ofthe The United States vs. Linn et al before cited, which was an action of debt instituted upon the official bond of a Receiver of Public monies. Upon the trial of that cause, after read
By the 34th section of the act “ regulating judicial proceedings, before referred to, Duvals Com. p. 96 ; it is (in substance) declared “ that the assignment or endorsement of any bond, note, covenant, deed, bill of exchange, or other writing, whereby money is promised, or secured to be paid, shall vest the assignee or endorsee thereof, with the same rights, powers and capacities, as might have been possessed by the assignor or endorser ; and the assignee or endorsee, may bring suit in his own name; nor shall it be necessary for the as-signee or endorsee of any instrument assignable by law, to set forth in his declaration the consideration upon which such assignment was made, nor to prove such consideration,1 unless the same shall be impeached by the defendant, under oath.”
It is not supposed that the object of this provision was to place these several classes of instruments, upon a footing (in all respects) with commercial paper, yet the effect of it is to make them negocia-ble by assignment or endorsement. If this were a new Statute, this Court would be inclined to confine the word assignment in.the section last cited to such instruments as at common law did not pass. by endorsement, and to extend the word endorsement only to other classes of written instruments ; but the provision is a convenient one as generally understood and acted upon. The practice of applying it alike to all tjiese various classes of instruments, has long prevailed in the
The rule, said Lord Denman, in delivering the judgment of the Court in the case of Pickard vs.' Sears, 6 Adolphus and Ellis, 475, is, that where one by his words or conduct,, wilfully causes another to believe in the existence of a certain State of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things existing at the same time ; and this principle is affirmed, also, in the cases of Coles vs. The Bank of England, 10 Adolphus & Ellis, 439. Hearne vs. Rogers, 9 B. & C, 586. Groves vs. Key, 3 B. & Ad. 144.
No man can avoid his own deed by which an estate has passed, on account of his own fraud in executing it. Doe ex dem Roberts vs. Roberts, 2 Barnwell & Alderson, Rep. 367. He is estopped from so doing. “ Contrary to the feeling which appears to have pervaded the Courts with regard to other classes of estoppels, their inclination seems to have been to extend the list of estoppels in pais, especially in mercantile transactions, where men are obliged to trust much to appearances. Jenys vs. Fowler, Strange Rep. 946. These authorities are directly in point, for notwithstanding the instrument in question is not strictly mercantile paper, yet it is in the nature (to a certain extent) of such paper. The act referred to makes it nego-ciable. In déaling in it, men are obliged to trust much to appearances. It requires amongst those who deal in it, the utmost fairness and good faith, and the principles deducible from the cases last cited are deemed applicable to it, and the question before us. ■
If we are right in the views which we have taken of these mat
There was another point taken for the appellant, upon the argument of this cause, which deserves a passing notice. It was that the assignment should have been under seal. The remarks heretofore made, respecting the 34th section of our judiciary act, aiid its bearing upon this class of casés, would seem to be a sufficient answer to that position. But lest it may not be so considered, we refer to the case of Clark vs. Rogers, 2 Greenleaf’s Rep. 148 ; in which Chief Justice Mellen, in delivering the opinion of the Court, remarked, that “ for many years, Courts of Justice have been gradually becoming more and more inclined to protect equitable interests. Less form is necessary now than formerly as to the mode of creating such an interest. The object is to ascertain that it is an interest founded in equity and justice, and on good and adequate consideration,” and for the correctness of that opinion, he cites Perkins vs. Parker, 1 Mass. Rep. 123. Dix vs. Cobb, 4 Mass. Rep. 508. Brown vs. Maine Bank, 11 Mass. Rep. 153. Quiner vs. Marblehead Insurance Company, 10 Mass. Rep. 482. Mowry vs. Todd, 12 Mass. Rep. 281. Jones vs. Witter, 13 Mass. Rep. 304, and particularly Dunn vs. Snell, 15 Mass. Rep. 481, (which very fully sustain the position assumed,) and in the case of Vose vs. Handy, 2 Greenleaf’s Rep. 334, he repeats the remark; again cities the same authorities, and , adds, that the Chief Justice in the case of Jones vs. Witter, (above cited) says, “ there are cases in the old books, which show that debts, and even deeds, may be assigned by parol, and we are satisfied, (he says) that there is no sensible ground upon which a writing shall be held necessary to prove an assignment of a contract, which assignment has been executed by delivery, any more than in the assignment of a personal chattel.
In the case of Jones vs. Snell, the Court went still further, and decided that the mere delivery over of ,an execution, was an assignment of it, and of the judgment. And in the case of Prescott vs. Hall, 17 John Rep. 284 ; Spencer Chief Justice, delivering the opinion of the Court, and speaking of the validity of assignments,- says* “ I do not consider the want of a seal essential, the mere delivery of the chose in action would be sufficient, even were it a specialty,” and we fully concur in this view of the law.
The'assignment of the bond in this case was in writing, and, by virtue of the státute referred to, vests in the appellee the legal inter
The Judgment of the Court below is affirmed with costs.
Per totdrn curiam.