7 Port. 466 | Ala. | 1838
— The arguments at the bar have presented these points:
First — As to the sufficiency of the declaration.
Second — The propriety of the refusal by the court, to permit the plaintiff to ask the defendant’s witness, what answer St. John <fc Leavens made to the demand by witness, of the notes in dispute.
Third — Was the transcripts from the District court, evidence to show an excuse for the non-delivery of the notes by St. John & Leavens, or to prove the insolvency of the makers, by the marshal’s return of nulla bona ?
Fourth — Were O’Connel & Brenan entitled to a return of the notes of F. & C. McLemore, and Curry, Jackson &. Co., upon the re-payment by them to St. John &, Leavens, of the advances upon the paper, these notes were pledged to secure?
Fifth — Did the fact of having put the notes in suit in the names of J. D. Beers & Co., amount to a conversion —if so, what should have been the measure of the defendant’s damages ?
Sixth — Could St. John & Leavens retain the notes to satisfy any other demand, they might have against O’Connel & Brenan ?
First- — We do not discover any available objection to the declaration, in charging St. John & Leavens, as partners. To authorise a recovery, it is only necessary to show that the conversion complained of, was a transaction in the course of the partnership dealings, or in the conduct of the affairs of the concern. Suppose property be placed in the hands of warehouse-men or factors (who are co-partners) for a particular purpose, and instead -of
Second — The precise question embraced by the second point, was made in Dent & Cade vs. Chiles’ adm’r—(5 Stew. & Por. 383.) In that case, the plaintiffs in error, who were defendants in the court below, were sued in trover, for the alleged conversion of slaves. On the trial, the plaintiff introduced a witness, who proved a demand by him, of the slaves of the defendants, previous to the commencement of the suit; whereupon the defendants offered to prove by the same witness, the reply which they made to the demand. But this was refused by the court, on the ground, that to permit the defendants declarations at the time of the demand, would be to enable them to make evidence for themselves.
The plaintiff further proved, that at the time the demand was made, the defendants omitted to deliver the property sued for — whereupon, the defendants proposed to prove by the same witness, the reasons stated by them for their failure to comply with the demand — hut this was also denied, for the same reason that caused their first proposition to he refused. This’court affirmed the judgment of the inferior court, — considering that though the evidence sought to be elicited might be legal in itself,
In the case cited, the court say, “ If the reply was such as made it an exception to this rule, and amounted to a reasonable qualification of the refusal, the party wishing the advantage of such an exception, should have shown it. By informing the court what the nature and purport of that reply was, if proper testimony, the court would have been hound to allow it to go to the
In the case at bar,' the court was not informed of the facts expected or desired ■ to be proved by the witness, and the question framed accordingly; but a mere general question proposed, to which the answer might have disclosed either legal or illegal testimony, depending upon the character of the reply to the demand of the notes. The case cited is direct to the point, both in its facts as well as principles, and as it settles a question of practice, even were we dissatisfied with it, we should yield sufficient homage to the maxim of stare decisis, as to accord to it its full influence.
Third — The records of the suits, judgments and executions, by J. D. Beers & Co. vs. F. & C. McLemore, and J. D. Beers & Co. vs. Curry, Jackson & Co. were properly rejected. It is an established general rule, that records of the proceedings in courts of judicature, are only admissible as evidence between parties and privies. In Chapman vs. Chapman, (1 Munf. R. 398,) it was determined, that the record of one suit cannot be used as evidence in another, on the ground, that the defendant and one of the plaintiffs in the latter suit, were parties to the former, and that the same point was in controversy in both —another plaintiff, and the person under whom both
There was no forfeiture of the notes eifected by operation of law, upon the failure of G’Conriel & Brenan to discharge their paper as it fell duo; and St. John & Leavens, if they were under such an impression, certainly did not think of claiming a forfeiture, else why did.they render their account to O’Connei fy Brenan, and receive the amount of it from their agent'? The purposes .for which the notes were placed in the hands of Sí. John & Leavens, having been fully answered by the reimbursement to them of their advances, O’Counel & Brenan had a right to demand them.
Fifth — There are a variety of acts, which, in point of fact, will amount to a conversion of a personal chattel, though the first taking was lawful. An illegal assumption of ownership — an illegal using or misusing — or a wrongful detention, are all satisfactory indicia of a conversion — (1 chit. Pl. 140, 141.) And a temporary conversion will suffice to render a defendant liable; for a conversion which has once taken place cannot be cured; therefore, if one man take another’s horse and ride him, and afterwards return him, yet trover will He, and the re-delivery will go only in mitigation of damages— (Countess of Rutland’s case, 1 Roll’s Ab. 5, (e.) pl: So in Wyatt et al. vs. Blades, (3 Camp. R. 395,) Lord Ellenbo-rough decided that a sheriff who had talced the goods of a bankrupt in execution, after a secret act of bankrupt
In what other light can the act of St. John & Leavens be viewed, in placing the notes in dispute beyond their control, than a conversion; — -beyond their control, we say, for whatever may have been their intention in suing these notes, or the opinion of their witness of the extent of their powers over the suits, it is clear, that in point of law, the interest in the judgments must be regarded as in J. D. Beers & Co. A Court of Equity might possibly divest this interest, but a Court of Law would consider it paramount. St. John & Leavens, it may be remarked, do not appear, from the proof, to have been partners of J. D. Beers & Co., but that house was merely interested in the business of St. John & Leavens. In this view, it is apparent, that St. John & Leavens have transcended the authority'conferred by their contract — have exercised an unauthorised control over the notes in dispute, by placing it beyond their power to return them, when the purposes for which they were pledged we're satisfied; and upon the authority we have cited, are chargable with their conversion.
Sixth — The remaining point embraces the question as. to the right of St. John & Leavens to retain the notes, placed in their hands, after the purpose for which they had received them was answered, on the ground that O’Connel & Brenan were indebted to them on another account. The law, on this point, is so clearly stated by Mr. Justice Story, that we Will content ourselves with a quotation from that learned author, and a reference to-the cases which sustain him — (Story’s Bailment, 205.)— He says: “If there are any subsequent accessorial engagements, which either tacitly or expressly, arc by the parties intended to be attached to the piedge, the pledgee.
In regard to the expenditures made by St. John &• Leavens, in the payment of costs, &c. in endeavoring to collect the notes in controversy, inasmuch as these must have been made,in aid of the suits or judgments in favor of J. D. Beers & Co., O’Connel & Brenan are not chargeable with their reimbursement; because the conversion was previously complete.
We think there is no error in the record, and the judgment is therefore affirmed.