8 Ga. 421 | Ga. | 1850
By the Court.
delivering the opinion.
The Court below did not, in our judgment, err in admitting the interrogatories of the witness, Spain, tendered by the plaintiff. The action was trover, brought to recover a promissory note by Kinsey, the original owner, against the administrator (Mr. Thomas) of Bell, who had bought it of the witness, Spain. The great question in the case was, whether the title of the purchaser was good against the title of the first owner and payee of the note. The plaintiff below took out a commission for the purpose of examining, and did examine Spain, relative to the owner
The objections to the admissibility of these interrogatories arc two—
1. Because, although the commission issued before the death of Bell, yet it was executed after his death, and before his representative was made a party.
2. Because the second cross interrogatory (quoted above) was not answered.
As to the first exception, it is sufficient to say, that the commission issued during the life of Bell, and when there was a case fully represented in the Court, and the evidence was offered after the representative of Bell had been regularly made a party in that cause. In view of the exception, the time of executing the commission is immaterial. The defendant was deprived of no right, by reason of the fact that the commission had been executed after the death of Bell, and before his administrator had been made a party. The witness had been cross examined during Bell’s life. The cross examination went out with the commission. What other right had the defendant touching the examination of the witness? The action did not abate by the death of Bell — it was only in abeyance.
1. The Act of 1799, requires a party desirous of taking the testimony of a witness out of the County or State, to give ten days’ notice to the adverse party, and to serve Mm with a copy of the interrogatories. When this is done, and not before, is he entitled to a commission. In this case, the Act has not been complied with. The interrogatories propounded by Corwin, were not served upon the adverse party ten days before the issuing of the commission ; indeed, at no time were they served upon him. The reason of this requirement is very clear. It is to enable the adverse party to cross examine the witness in relation to all the subject matters of the direct examination. Prince, 425.
2. The presence of counsel for one of the parties, taking part in the examination by propounding questions, prevents its impartiality, and vitiates the whole. Our law makes no provision for the presence of the parties; the examination is in writing, confined to the questions put to the witness before the commission issues, and confided to impartial commissioners. The commission issues in blank, and is filled by the party suing it out. At best, this is a very unsafe mode of taking testimony, in which the party seeking it has the advantage. We cannot guard it too carefully from abuse. In Glanton vs. Grigg, this Court held, that depositions taken by a student at law of an attorney in the cause, and in the office and presence of the attorney, are inadmissible. 5 Ga. Rep. 424. See, also, Tillinghast, Starke & Co. vs. Walton, 5 Ga. Rep. 335. This is a stronger case than either of these. Manifestly, impartiality in taking the depositions cannot be presumed, when one party is present by his attorney, and participating in the examination, the other being absent. It was said in the argument, that this is not an objection to the execution of the interrogatories, but to the testimony itself, and, therefore, the an
The general rule of the law of this State and of Great Britain is, that no man can acquire a title to a chattel personal, from any one who has himself no title to it. A contrary rule would subvert the foundations upon which property rests, violate natural justice, and make the law the agent for outraging the first principles of morality. If property found or stolen, or obtained by violence or fraud, could be sold, and the title in the purchaser be maintained against the real owner, then would the law pander to injustice and patronise immorality. However innocent the purchaser under such circumstances may be, and however great his loss may be, and although he is, in fact, the victim of villainy, his title is subordinate to the title of the true owner. He gets the title of his vendor and no more, which must yield to the title of the owner, whenever that is established. This rule is of general application, and embraces all kinds of personal property — applying, generally, to notes, bills and other negotiable se
Does this exception extend to notes, bills and other securities past due ? It does not. There are cases, which upon slight perusal, seem to be cases of over due securities; but upon careful examination, they are found to be cases of premature securities. Such is the case of Peacock vs. Rhodes, (Douglass, 636,) relied upon by Col. Foster. I think it may be safely said, that there is not to be found a single judgment of a single Court of any authority, which has extended it to paper over due. Certainly I have found no such judgment. Then, the question here made, is disconnected with all the learning in the books, which applies to the exception I have been considering. Bills, notes and all other negotiable securities, after they are due, are subject to the great property rule first announced. That is, that he who, bona fide and for value, buys it from one having no title, acquires none. He buys with it the title of his vendor, and does not get a title better than the rightful owner.
We are invoked to extend the exception to this general law of property, to paper transferred after it is due. Upon expediency we ought not, and upon authority we dare not, respond favorably to the invocation. It is argued, that the same necessity of commerce, which at first suggested, and which now justifies the exception as to paper not due, will authorize its extension to paper over due. The reason for the one, it is insisted, is equally as strong as the reason for the other, and it is asked wherein consists the grounds of the distinction? To which it may be replied, that the demand for increased negotiability.in notes and bills, particularly in Georgia, is fully satisfied by the one exception. The law merchant, as it stands, is adequate to all the requirements of busi
It is said that much of this reasoning, although applicable to notes and bills negotiable by indorsement, does not apply to notes payable to bearer, and negotiable by delivery, or to notes and bills payable to order, and indorsed in blank. It is urged that the title passes by delivery — goes with the note — is a necessary element of the paper itself, and is evidenced by possession; that when one transfers such paper by delivery, he does not become a party to it, and is not liable on it, and that, therefore, the holder cannot look to him, as he may to an indorser — he does not take it on the credit of the transferer. From all of which the inference is drawn, that the title thus acquired is good in the holder, to such a note or bill over due. Now, all these things are generally true. The title passes by delivery, and possession is evidence of it. So of a horse; yet the title to the horse and the bill does not, thereby, become unimpeachable. The possession in either case, is only prima facie evidence of title, and may be resisted. It (the title) maybe shown to have been acquired through one having no title. Story on Prom. Notes, §43. Story on Bills, §60. Chitty on Bills, ch. 5, pp. 180. 252. 8th, edit. Bailey on Bills, 5th edit. ch. 1, §10, p. 31.
Again, although the transferer of a note or bill, negotiable by delivery, is not liable to the transferee on the note or bill, he is not, by any means, free from responsibility. Unless it be expressly otherwise agreed, he warrants by implication, that he is the lawful holder, and has a just and valid title to the instrument, and a right to transfer it by delivery. He incurs liabilities on other grounds, which I need not state. Story on Prom. Notes, §118, p. 127. 16. on Bills, §§ 109, 111. I do not consider that notes and other securities, negotiable by delivery, in reference to this question, stand upon grounds different from such as are only negotiable by indorsement.
Ch. Kent says, “ The bona fide holder can recover upon the paper, though it came to him from a person who had stolen or robbed it from the true owner, provided he took it innocently, in the course of trade, for a valuable consideration, and not over due,” &c.
Similar language is used by other elementary writers, which I forbear to quote. In relation to these elementary extracts, I remark, that the writers are discussing the title of the holder, when derived from one holding no title, and one of the conditions upon which they make that title good is, that it be acquired before the paper is due. The inference is logical and irresistible, that if the title is acquired after it is due, it is not good. 1 Story on Prom. Notes, §191. 3 Kent’s C. 78. Baily on Bills, 524, 528.
The case of Down vs. Halling and others, (4 Barn. & Cress, 330. 10 Eng. Com. Law R. 347,) is an authority in which the very question I have discussed is considered and adjudged. That was an action of assumpsit for money had and received, brought by the true owner of a check against a purchaser, who bought it after it was due, from one who had no title, and to which purchaser it had been paid. The Court likened the check to a bill over due, and held that the purchaser acquired no tille, and was, therefore, liable to the plaintiff. Bayley, J. said, “ There is no question whatever in the case, if the distinction between bills over duo and not due, is adverted to. If a bill, note or check be taken after it is due, the party taking it can have no better title to it, than the party from whom he takes it, and, therefore, cannot recover upon it, if it turns out that it had been previously stolen or lost. This is, therefore, just like the case of a bill taken after it is due, and the party taking it has no better title than the person from whom he took it, and cannot recover upon it.”
Holroyd, J. hold the same opinion. The case stood over for consideration upon some point in it, and afterwards, Abbott, C. J. among other things, said, “ It was proved that the check was
The case of Emmerson vs. Crocker, (5 New Hamp. R.) is a case immediately upon the question, and deciding that the holder of a note, transferred to him after it was due, by one having no title, acquired no title to it.
In a late case decided in Connecticut, (17 Con. R. 511,) Clarke vs. Sigourney, where A gave his note to B, payable to B or order, on a certain future day, which lay in his hands until his death, which was long after it fell due, and after his death came into the hands of C, his executrix, with the name of B indorsed in blank on the back of it, who delivered it to D, in the state in which she found it, for a valuable consideration, it was held, that C, as executrix or otherwise, had no authority to deliver the note as a note indorsed by B; that D consequently had acquired no legal title to it, and that as tke note came into the possession of D after it fell due, it was subject to the defence of a want of title in him.
I need scarcely add that the judgment now pronounced does not, in any way, interfere with the negotiability of over due notes and bills and other securities, by any fair and legal transmission of title from the owner.
Let the judgment be affirmed.