Lapas attēli

331, 43 South. 841; Stowers Fur. Co. v. Brake, 158 Ala. 647, 48 South. 89, to state further the bare fact that "plaintiff said he received the injuries on the train" (Birmingham Union Ry. Co. v. Hale, 90 Ala. 10, 8 South. 142, 24 Am. St. Rep. 748). There was no dispute on the part of defendant of the fact, established by an abundance of other evidence for the plaintiff, that the latter did receive his injury on the train. The only conflict in the evidence was as to whether or not it was caused by the negligence of defendant. The statement quoted does not ascribe the injury either to the defendant or to its negligence-in fact, it does not even affirm that it was on defendant's train that the injury was received-and we cannot understand how, under the circumstances here, it could possibly have prejudiced de fendant's case, even if it was error to admit the statement. However, in the case of Birmingham Union Ry. Co. v. Hale, last cited, our Supreme Court held it was not error to permit the physician who attended the plaintiff to testify that when he first saw her "she was complaining of pain from an injury she said she had received." The only difference between that statement and the one here is that there the place where the injury occurred was not given, while here it is given as having happened on the train, without stating, however, which or whose train, or when or where. It strikes us that the difference between the two statements is not material in the particular under consideration.

[4] The plaintiff, over a general objection of defendant, asked one of the physicians who attended plaintiff this question, "Did you not diagnose the case at the time as a broken bone?" (referring to a cartilage bone, or ossified cartilage, between the neck bones), and received from the witness this answer, "I told him that it might be; I thought probably it might; that is what I still think." The only argument in appellant's brief in support of his assignment of error predicated on the above objections is this: "What he [the physician] thought about the case at that time was entirely immaterial and illegal. The proper inquiry was: "What was his opinion at the time of the trial?" It appears, as will be observed from the foregoing quotation we give from the physiclan's answer, that his opinion at the time of the trial was the same as his opinion at the previous time referred to; hence no injury, if error, resulted from permitting the question and answer.

[5] The fifth assignment of error is based on the action of the court in overruling appellant's motion to exclude the following statement of plaintiff made by him as a witness, and in the course and as part of his general narrative of the occurrence of the accident: "After the deadening [referring to

after the jerk of the train] passed off, I called Mr. Ship's attention to it" (meaning the jerk-Mr. Ship being a passenger on the same train, and sitting on a seat near plaintiff). We think the statement admissible as a part of the res gestæ, in that it appears with reasonable certainty that the declaration to Mr. Ship was produced by and instinctive upon the occurrence to which it related. Nelson v. State, 130 Ala. 83, 30 South. 728, and authorities there cited.

[6] A witness for plaintiff, in testifying to the latter's decline in health following the accident, stated that plaintiff lost 10 or 15 pounds; whereupon defendant's counsel asked him if he (the witness) "had ever lost 10 or 15 pounds." We cannot see how, if he had, it would be relevant to any issue in the case, and the court did not err in sustaining an objection to the question.

[7] The refusal of the court to give several charges requested by appellant in writing is assigned as error; but it does not appear from the bill of exceptions that the request was made before the jury retired to make up their verdict, and it will therefore be presumed, in favor of the ruling of the trial court, that the charges, if otherwise good, were refused for this reason. Patterson v. State, 62 South. 1026; Hubert Morgan v. State, 63 South. 21; Donahoo & Matthews v. Tarrant, 1 Ala. App. 446, 55 South. 270; 2 Mayf. Dig. 576.

It affirmatively appears from the record that the portion of the oral charge excepted to, which forms the basis of the seventh assignment of error, was subsequently, and before the jury retired, corrected by the court at the request of appellant in a written instruction directing them specifically to disregard that portion of the charge, setting it out.

[8] The other portion of the court's oral charge which was excepted to, and which is assigned as error in the eighth ground of assignment, is not sufficiently definite and specific to constitute a valid assignment of error. It reads: "The court erred in that portion of its oral charge set out at the bottom of page 33 numbered B." Upon turning to the page referred to of the record, we find that it contains a continuation of the oral charge of the court, which is set out in full in the record, commencing on a previous page, and covering page 33 and several subsequent pages. On page 33 we do find a "B"; but one written in the margin of the record. How much of the court's oral charge constitutes "B" we are unable to clearly see. Where "B" starts in the charge is probably plain; but where "B" ends cannot be determined. We infer that the use of the "B" was to point us to the beginning of that portion of the charge excepted to, intending the exception as found in the record to make the assignment of error clear and definite.

of the oral charge as copied in the transcript, | bankrupt, on the 11th day of November, 1908, reads: "The defendant then and there ex- re-leased said plantations of appellee, and cepted to the court's giving that part of the bought certain personal property of her, oral charge included in the parentheses shown by contract of that date exhibited, the above." We find only one parenthesis-the said lease and purchase contract, however, first only-and the last, if in the original bill of exceptions, was omitted from the transcript copy of it. We might be able to guess, but we are certainly unable to determine with any safe degree of certainty, what particular portion of the court's oral charge we are asked to review.

being taken in the name of N. H. Luse, who had no real interest therein, but who was simply to hold said leased property and personal property purchased until the bankrupt could institute bankruptcy proceedings and obtain his discharge, when the same were to be transferred to him by the said Luse, the

We find no error in the record, and the said Luse and the appellee that day, by sepJudgment is affirmed.


(106 Miss. 467)

TRENHOLM v. MILES. (No. 16,178.) (Supreme Court of Mississippi. Jan. 12, 1914.) 1. BANKRUPTCY (8 302*)-RIGHT OF TRUSTEE. While all the property of a bankrupt can be taken by his trustee, the trustee cannot delay taking charge of the property for such a length of time as would work an injustice to the parties interested; and a bill by a trustee in bankruptcy to take possession of the bankrupt's property should show that there has been no unnecessary delay.

[Ed. Note. For other cases, see Bankruptcy,

Cent. Dig. §§ 456, 457; Dec. Dig. § 302.*]

arate instrument exhibited, agreeing to so transfer; and that the whole scheme was devised for the express purpose of enabling the said bankrupt to withhold the said properties from his trustee in bankruptcy, upon filing his petition for an adjudication; that, after the adjudication and discharge of the bankrupt, he and the said Luse executed their part of the aforesaid agreement, as shown by a further exhibit to the bill, but that the appellee refused to consent thereto, and instituted proceedings against Luse and King for the appointment of a receiver of the crops, lease, and personal property; and that said

proceedings were terminated by the whole property being turned over to the appellee, who has since disposed of the same to bona fide purchasers for value, for a sum largely Defects in a bill, not made a ground of ex-in excess of any indebtedness due the appellee ception in the demurrer below, will not be considered on appeal.


[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1226–1238, 1240; Dec. Dig. § 193.*]

Appeal from Chancery Court, Yazoo County; G. G. Lyell, Chancellor.

by either Luse or the bankrupt, which excess the bill prays for a recovery of."

[1] We think there is but one criticism of this bill which can be considered as worthy of serious consideration. It is contended that the bill shows on its face that the trustee

Bill by E. L. Trenholm, trustee, etc., against did not reasonably exercise his option to take Mrs. Mary R. Miles. From a decree sus-charge of the leasehold as the property of taining a demurrer to the bill, complainant appeals. Reversed and remanded.

Edgar L. Brown, of Yazoo City, for appellant. Barnett & Perrin, of Yazoo City, and Noel, Boothe & Pepper, of Lexington, for appellee.

COOK, J. We copy from the brief of appellant a correct statement and elucidation of the original bill of complaint filed in the chancery court of Yazoo county, viz.: "The appellant, the trustee in bankruptcy of C. L. King, bankrupt, exhibited his bill, which, as amended and successfully demurred to, alleged that the bankrupt was adjudicated a bankrupt on the 24th day of March, 1909; that for some years previous thereto the bankrupt had leased two large plantations of the appellee, and had become wholly insolvent; that, his lease thereof being about to expire on the 31st day of December, 1908, he was desirous of re-leasing the same, and the appellee desired to re-lease the same to him; that appellee knew he was hopelessly insolvent, and then intended to file his petition for an adjudication in bankruptcy; that the

the bankrupt. We do not decide that this

contention is well founded; but we think it would be more satisfactory, had the bill been a little more specific along this phase of the


[2] While all the property of the bankrupt could be taken by his trustee, it does not follow that the trustee can delay in taking charge of the property to such a length of time as would work an injustice to parties interested. However, there is nothing in the demurrer making this contention as one of the exceptions to the bill of complaint, and we do not consider this question as having been raised by the demurrer. Reversed and remanded.

(106 Miss. 470) CITY OF PASS CHRISTIAN v. LIZANA. (No. 16,244.) (Supreme Court of Mississippi. Feb. 2, 1914.) APPEAL AND ERROR (§ 65*)-DECISIONS APPEALABLE-AMOUNT.

peals to the Supreme Court from judgments Under Code 1906, § 86, providing for apof the circuit court in cases originating before a justice, where the amount in controversy

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

exceeds $50, no appeal can be had where the judgment is for only $50.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.*]

Appeal from Circuit Court, Harrison County; T. H. Barrett, Judge.

Action by F. P. Lizana against the City of Pass Christian, begun in justice court and appealed to the circuit court. From a judgment there for plaintiff, defendant appeals. Appeal dismissed.

Jno. J. Curtis, of Biloxi, for appellant. Mize & Mize, of Gulfport, for appellee.

REED, J. This case was brought in the court of a justice of the peace. Judgment for $50 was rendered by the circuit court. Section 86 the Code of 1906 provides that appeals may be taken to this court from the judgment of the circuit court in cases originating in the court of a justice of the peace "where the amount in controversy exceeds the sum of $50." The judgment appealed from shows the amount in controversy. In this case it is less than the jurisdictional amount prescribed by statute. Ward v. Scott, 57 Miss. 826; Wimbush v. Chinault, 58 Miss. 234; Leake County v. Carr, 100 Miss. 91, 56 South. 345. Appeal dismissed.

(106 Miss. 471)


(Supreme Court of Mississippi. Jan. 26, 1914.) 1. BILLS AND NOTES (8 497*)-BONA FIDE HOLDER.

The holder of a negotiable paper is presumed to be a bona fide holder for a valuable consideration until it is shown by the other party that there was a want of consideration, or that the holder came into possession of it fraudulently, etc.. when the burden shifts to the holder to show that he is a bona fide holder for value.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 16831687; Dec. Dig. § 497.*]



The holder of a note payable to bearer is prima facie an innocent purchaser for value; but, if the evidence shows that the payee, from whom the holder acquired possession, acquired the note by fraud upon the maker, the holder must then show that he was a bona fide purchas er for value.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 16831687; Dec. Dig. § 497.*]


that defendant's president authorized their execution.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 1717, 1718; Dec. Dig. § 505.*] 4. BILLS AND NOTES (8 358*) - BONA FIDE PURCHASER.

One who receives notes as security for a pre-existing debt is not a purchaser for value, and under the statute the same rule applies to bills of exchange and notes taken as security for a debt.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 913-923, 961; Dec. Dig. § 358.*]


A replication to a plea, in an action on notes, that the notes were assigned to plaintiff alleged that the notes were purchased by plainas security for a pre-existing indebtedness, which tiff in the usual course of business, and that it was a bona fide purchaser for value, without notice, should have been stricken as a conclusion which did not deny the facts of the plea. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 12-28%, 68; Dec. Dig. 8.*] 6. BILLS AND NOTES (8 525*)-BONA FIDE PURCHASER-PROOF.

The notes sued on by plaintiff bank were bank as security for the indorsement by such executed to its vice president by defendant vice president of loan notes executed by defendant bank, which loans defendant had obtained from other banks at the suggestion of the vice president, who was also a stockholder in defendant bank. At the time of such transactions the vice president was financially embarrassed, and greatly in need of property which could be used as collateral security to save himself from insolvency, and the notes executed by defendant to him were to be held in trust until defendant's notes were paid; but, notwithstanding the fact that defendant paid its notes which were indorsed by the vice president, he subsequently transferred defendant's notes to plaintiff to secure his own pre-existing indebtedness to plaintiff, or as collateral security for advancements to him. Held, that the facts destroyed the presumption that plaintiff was a bona fide purchaser for value, so that it was required to prove such fact.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 1832-1839; Dec. Dig. § 525.1

Appeal from Circuit Court, Carroll County; E. V. Hughston, Special Judge.

Action by the Bank of Winona against the Merchants' & Farmers' Bank. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Noel, Boothe & Pepper, of Lexington, and Gardner & Whittington and Monroe McClurg, all of Greenwood, for appellant. Hill & Knox, of Winona, for appellee.

COOK, J. E. R. Blackston was engaged in the mercantile business, in the town of Winona, under the name of the Blackston Mercantile Company. The Blackston Mercantile Company was indebted to the Bank of Winona, of which bank E. R. Blackston was vice president.

The record discloses that

In an action on demand notes executed by defendant bank to plaintiff's transferror as collateral security for the transferror's indorsement of other notes, and transferred to plaintiff as security for a pre-existing indebtedness, the Blackston Mercantile Company's overevidence was admissible that defendant execut- draft with the Bank of Winona was very ed the notes sued on because of false representations by the transferror, who was an off-large, and Blackston was making every efcer of plaintiff bank, and was then insolvent, fort to secure this overdraft, so as to avert

financial disaster. Blackston was also a lopments show that Blackston was on the stockholder of the Merchants' & Farmers' ragged edge of financial despair, and the Bank, of Vaiden.

In May, 1910, Blackston casually approached the vice president of the Merchants' & Farmers' Bank, and told him, if his bank needed any money, he could get the money for them. He was informed that the Merchants' & Farmers' Bank would probably need some money. Blackston asked the vice president to have his bank send him a statement, as he was going to St. Louis to borrow some money for the Bank of Winona, and would at the same time secure the money for the Merchants' & Farmers' Bank.

possession of collateral was a matter of dire necessity. On October 15, 1910, the date when the first note was due, the Bank of Winona notified the Merchants' & Farmers' Bank that it was the owner of the note, and demanded payment. The Merchants' & Farmers' Bank refused to pay both notes, because they were obtained by fraud, and because they had paid the Boatmen's Bank notes when due, and, having done so, the notes were without consideration, and under the agreement they were to be returned to defendant.

Suit was brought on the notes by the Bank of Winona. At the trial the notes were introduced in evidence, their execution proven, and the plaintiff rested. The Merchants' & Farmers' Bank offered to make proof of the facts above detailed. The evidence was heard by the presiding judge, in the absence of the jury, and, after hearing same, the record discloses that all of it was excluded from the consideration of the jury, and the jury was peremptorily instructed to find for the plaintiff.

It is the contention of defendant below, appellant here, that the evidence offered would authorize a jury to believe that Blackston obtained the notes by fraud, and, this being true, the burden was then shifted to the plaintiff to prove that it was a bona fide purchaser for value, without notice of the fraud.

This conversation between Blackston and the vice president of the Merchants' & Farmers' Bank occurred in Winona. The next day after the interview Blackston went to Vaiden and repeated his offer to borrow money to the cashier of the Merchants' & Farmers' Bank, and was told that the bank would need from $10,000 to $15,000. A few days thereafter the bank received several letters from correspondent banks, stating that Mr. Blackston had informed them that the bank desired to borrow money, and offering to make the loans on paper signed by the officers of the bank, or indorsed by Blackston. | Among the banks heard from was the Boatmen's Bank of St. Louis. About May 17, 1910, the Merchants' & Farmers' bank made a note to the Boatmen's Bank for $10,000, payable December 1, 1910, with Blackston as indorser, and got the money. About June 21, 1910, it made another note to the Boatmen's Bank indorsed by Blackston, for $5,000, payable October 15, 1910, and secured this sum of money. Blackston then went to the cashier of the Merchants' & Farmers' Bank and told him that his lawyer had advised him that he ought to be secured by collaterals on his indorsements. The cashier refused to give him the security, because he was not authorized to do so. Blackston left the bank, and, coming back, falsely told the cashier that he had seen the president of the bank, and the president had authorized him to instruct the cashier to execute notes payable to bearer, with collaterals attached, to secure Blackston's indorsements on the Boatmen's Bank notes, which was done by the cashier, executing two notes of the bank for $4,500 and $3,500, respectively, payable to E. R. Blackston, or bearer. It was understood and agreed that these notes would be held in trust by Blackston to secure his indorsement and returned to the bank when the bank paid the Boatmen's notes. The notes were paid at maturity. In violation of this trust, Blackston delivered the notes to the Bank of Winona, either to secure his pre-existing indebtedness to that bank, or as collateral security for advances to be made by the bank to him. When these transactions between Blackston and the Merchants' & In the present case the evidence tends to

The Bank of Winona says the notes were made payable to bearer, and they have passed to us by delivery. The law will presume that we are bona fide purchasers for value. It is no concern of the bank that the notes were obtained by fraud and misrepresentation. We understand that the bank relies solely upon the production of the notes, payable to bearer, for a verdict, and assumes that the fraud of the person to whom the notes were delivered in no way casts any burden upon the bank to satisfy the jury that the bank is in fact a bona fide purchaser. without notice of the fraud. This is evidently the theory adopted by the trial court. This, we think, is a total misconception of the law of this state.

[1] "The holder of negotiable paper is presumed to be a bona fide holder for valuable consideration until something be shown in disagreement of his title; and he is not bound to show that he has given value for the paper, or that he took it before maturity, until the adverse party has shown the want, or failure, or illegality of the consideration, or that it was lost or stolen from the rightful holder, or that the holder came to the possession of it fraudulently." Emauel & Barnett v. White, 34 Miss. 56, 69 Am. Dec. 385.

of the notes fraudulently, and also that the [of Winona as security for a pre-existing inBank of Winona took the notes under suspicious circumstances.

debtedness of Blackston to said bank. The Bank of Winona, replying to this plea, merely say that the notes were purchased by it in the usual course of business, and that it was a bona fide purchaser for value, without notice. The defendant, appellant here, made a motion to strike this replication from the files, because the same was not responsive to the plea, which motion was overruled. The plea sets up facts which, if true, would estab

bona fide purchaser for value. The replicacation does not deny the facts, but simply pleads a conclusion of law. We think the motion to strike the replication from the files should have been sustained.

"There are two classes of suits at law so nearly analogous to suits by creditors to subject property fraudulently conveyed that it is difficult to draw a distinction between them sufficient to warrant the application of different rules of procedure. These are suits by one whose property has been secured by the fraud of the vendee, and who sues to recover it from another claiming under the fraudu-lish that the Bank of Winona was not a lent vendee, and suits by an indorsee of a bill or note against the maker, who defends upon the ground that the instrument was secured by the fraud of the payee. In these cases it has been uniformly held that proof of the fraud of the vendee of the property, or payee of the note, imposes upon the party claiming under him the duty of showing that he is a purchaser for value, and in good faith. Bailey v. Bidwell, 13 Mees. & W. 73; Fitch v. Jones, 32 Eng. Law & Eq. 134; Paton v. Coit, 5 Mich. 505 [72 Am. Dec. 58]; Clark v. Pease, 41 N. H. 414; Bigelow, Fraud, 132; Spira v. Hornthall, 77 Ala. 137; Easter v. Allen, 8 Allen (Mass.) 7; Morgan v. Morse, 13 Gray (Mass.) 150; Haskins v. Warren, 115 Mass. 514." Richards v. Vaccaro, 67 Miss. 516, 7 South. 506, 19 Am. St. Rep. 322.

[2] It seems to be the view of appellee that the note being payable to bearer gives it some sanctity which exempts it from the burden imposed upon the holders of other kinds of property, when facts are given in evidence showing that the holder of the property obtained it from a party who fraudulently came into possession thereof. The title to a note payable to bearer may be conveyed by a delivery of the note, and one in possession of such a paper is prima facie the owner of same and prima facie the holder is an innocent purchaser for value-but, when circumstances in evidence show that the payee, from whom the holder claims, came into possession of the note by fraud upon the maker, then the holder must show his good faith.

[6] In conclusion, we are of opinion that the facts disclosed by the record and excluded from the jury puts the plaintiff to proof of its good faith, and it should be required to produce evidence to show that the Bank of Winona was a bona fide purchaser for value. Reversed and remanded.

(106 Miss. 489)

ELDER et al. v. JONES. (No. 16,280.)
(Supreme Court of Mississippi. Jan. 19, 1914.)

sale under mortgage or deed of trust the mort-
Code 1906, § 2779, provides that before
gagor or grantor shall be deemed the owner of
title of the property conveyed, except as against
the mortgagee and his assigns, or the trustee
after breach of conditions of the mortgage or
deed of trust. Held, that after default the ti-
tle to mortgaged property vests in the mort-
gagee, and, he having assigned the debt, the
right to seize and sell the property conferred by
the mortgage vests in the assignee.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 454; Dec. Dig. § 206.*]

Appeal from Circuit Court, Union County; H. K. Mahon, Judge.

Action by R. G. Jones against B. R. Elder and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The appellee was plaintiff in the court be low and appellant was defendant. Suit was begun in replevin to recover possession of certain mules alleged to be wrongfully with

[3] We think the evidence offered by appellant might be so construed as to raise an inference that Blackston delivered these notes to the Bank of Winona as a security for pre-existing indebtedness. All of the facts given in evidence were pertinent to en-held from the possession of the plaintiff. In able the jury in reaching a correct conclusion upon the issues presented by the pleadings.

[4] Receiving property merely as security for a pre-existing debt does not constitute the holder a purchaser for value, and, by reason of our noncommercial statute, the same value applies to bills of exchange and notes taken as security for a debt. First Nat. Bank v. Strauss, 66 Miss. 479, 6 South. 232, 14 Am. St. Rep. 579.

[5] The second special plea to the plaintiff's declaration sets up the defense that the notes in question were assigned to the Bank

addition to the facts set out in the opinion, it appears that the plaintiff had taken up a note of defendants due the Bank of Ecru, and there is testimony in the record to show that the lien held by the Bank of Ecru to secure its indebtedness covered other mules than those embraced in the bill of sale securing the indebtedness to King which Jones also paid off. Under instructions of the court the jury were permitted to include both the indebtedness to King and the indebtedness to the Bank of Ecru in their judgment and also to assess damages.

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