70 Ala. 469 | Ala. | 1881
It is the settled law of this State, whatever may be the general weight of authority on the question, that one who takes negotiable paper as collateral security for the payment of a pre-existing or antecedent debt, is not a purchaser for value in the usual course of trade; and the rule is held to apply to accommodation paper, as well as to other negotiable securities.—Fenouille v. Hamilton, 35 Ala. 319 ; McKenzie v. Branch Bank, 28 Ala. 606.
In all such cases, the paper is, of course, open in the hands of the assignee to all the defenses which could have been made against it while in the hands of the assignor or original owner. 1 Parsons on Bills, 219.
But, where one honestly receives a negotiable bill or note before maturity, as collateral security for a debt contracted simultaneously, or in pursuance of a previous agreement made at the time the debt was contracted, it is quite well settled, that he is entitled to protection against secret equities or defects of’ which he had no notice. — 1 Parsons’ Bills and Notes, 219;
These are the leading principles of law affecting the rulings of the court below on the trial of this cause.
Charges numbered three and four, which were requested by the appellants, contained a corrept exposition of these principles. They were properly refused, however, because there was no evidence before the jury showing, or tending to show, that the note sued on was transferred as collateral security to plaintiff's, pursuant to any previous agreement having particular reference to this instrument specifically, or eo nomme. This is assumed in the charges, and they, therefore, tended to mislead the jury. It is true that the plaintiff, Miller, testified, that “it was understood that B. O. James & Co.” [the assignors of the note in question] “ were to give ample and good security for the loan of $2,500.” And if this agreement was made simultaneously with the negotiation for the loan made by the bank, the jury might construe it to be broad enough to include the note of Boykin, which was so transferred either then or after-wards. In order to constitute a transferree, under such circumstances, a purchaser for value in due course of trade, we see no reason why the particular securities, if any are agreed to be transferred, should be described at the time. We apprehend that an agreement to give collaterals, would be sufficient to include any particular collateral, which was afterwards delivered in execution of the antecedent promise.—Fenly v. Pritchard, 2 Sandf. (N. Y.) 151. The charges under consideration, however, were not framed to cover this aspect"of the case.
The first charge given by the court at the request of the defendant was erroneous, because it entirely withdrew from the jury the consideration of Miller’s testimony, alleging an understanding generally that James & Co. were, to give collateral security for their loan. If such agreement was made at the time of the loan, and the' note in suit was subsequently delivered in pursuance of it, it was immaterial whether the note was in Mobile, or. elsewhere, at this date.
The second charge given at defendant’s request, no doubt, stated a correct proposition of law, but was liable to mislead, by inducing the jury to entirely discard the consideration of Miller’s statement, to which allusion is above made.
The question put to the witness Cochran was irrelevant, and was properly excluded. The fact that “ country postmasters sometimes brought letters, left in their offices for mailing, in person, and mailed them in Selma,” would afford no just ground for a jury to infer that the letter of Boykin was thus mailed at Selma, by the postmaster at Tilden. So, of the other question to the same witness, seeking to elicit a similar answer.
It was clearly not permissible for the witness Cochran to
The evidence showed, however, that the postmaster kept a registry of the arrivals and departures of mails, under authority and by direction of the Post-office Department of the general government; that this was made his official duty, and he was required to see that it was correct, and to certify such fact to the Department at stated times. Public records of this nature, kept by duly qualified public officers, within the range or scope of their duties, and kept in conformity to law, are admissible in evidence, generally, in proof of any relevant fact recited in them, when such fact arises collaterally in the trial of a cause, and does not constitute one of the issues in dispute, as presented by the pleadings. And this is true, whether these facts .are known to the officer in’custody of the record, or are based on the reports of other persons in the discharge of their official duties as subordinates.—1 Whart. Ev. §§ 640, 653, 656, 61. The courts have construed to come within this principle, and have accordingly admitted in evidence, books of the customhouse, prison registers, a record of registered letters in a post-office, parochial registries of marriages and baptisms, poll-books, and other records or registries of like character.—1 Greenl. Ev. §§ 483-4; 1 Whart. Ev. §§ 640, 647, 651.
But, in order to bring a case within this principle, either the original record must be produced, or such a copy as is authorized under the established rules of evidence. In the case of records of. a court, an exemplified copy under seal is allowed, or else any other properly authenticated copy. In records of this nature, the rule is well settled, that an examined or sworn copy ought to be introduced, and, according to the weight of authority, probably, a certified copy may be. The better practice, however, is to require a sworn copy, in the absence of the origmal, which is, of course, always admissible.—1 Whart. Ev. § 114; 1 Greenl. Ev. § 485. It is clear, from these principles, that the post-master could not be permitted to read from mere memoranda taken from the post-office registry, thus giving pa
The testimony of Cochran, as to the course of the mails on the Alabama river, from Portland by steamboat to Mobile, was properly excluded. There was no evidence whatever tending to show that the letter written by Boykin to James & Go. could have gone by this route. The letter is proved to have been mailed at Tilden, whence the due course of mails was to Minter Station, thence to Mobile via Selma. Boykin disclaims any recollection of having written these parties by boat at any time, but admits, on cross-examination, that he c>may have done so.” This admission has no reference to the letter in question; and the possibility of mistaken recollection, to be deduced from it, is too remote and speculative, in our judgment, to render it relevant for the purpose contended.
The demurrer to the sixth plea was properly overruled. If the Boykin note was received as collateral, pursuant to a previous agreement to give good security, the delivery would relate back, in legal contemplation, to the time of the agreement when the plaintiffs negotiated the loan, provided (as there is proof tending to show) that such negotiation and agreement were simultaneous. The plea, as framed, was, therefore, broad enough to include both aspects of the case presented by the demurrer.
The judgment of the City Court must be reversed, and the cause remanded.
