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Smith v. Sasser.

BATTLE, J. The principle which must govern this case, is the same as that of Barrett v. Cole, decided at the present term, (ante 40). The owner of the gun in question, pawned it to the defendant, to secure a debt which he owed him, and the defendant immediately handed it back to him, and he kept it five months, and exchanged it to the plaintiff for another gun. By giving up the possession, the defendant lost his lien, and the plaintiff acquired a good title by his purchase from the owner. Thus, it is said in STORY on Bailments, sec. 299, “ that as possession is necessary to complete a title by pledge, so by the common law, the positive loss, or delivery back of the possession of the thing, with the consent of the pledgee, terminates his title.” So, in 2nd Kent's Commentaries, 581, we find it laid down, that in the case of Castilyon v. Lansing, 2 Caine's cases in Error, 200, it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pass as in the case of a mortgage ut remained with the pawnor. The ledge of moveables without delivery is void as against subseInt bona fide purchasers, and generally, as against creditors.”

We are aware that there is an expression in the opinion, delivered by the Court, in the case of Macomber v. Parker, 14 Pick. Rep. 509, which would seem to qualify the doctrine as laid down by these eminent jurists. The expression is this : “If the vendor or the pledgor should have the actual possession of the property, after it were pledged or sold, it would be only prima facie, but not conclusive, evidence of fraud. The matter might be explained and proved to be for the vendee or pledgee.” Here it is not said that the possession of the pledgor is obtained by a re-delivery from the pawnee, and we presume, that such a case was not intended, because in a subsequent part of the same opinion, it is stated “ that the lien would be destroyed, if the party gives up his right to the possession of the goods.” Such, we believe, is the true doctrine, so far as creditors and subsequent bona fide purchasers are concerned. If it were otherwise, a wide door would be open

Phillips v. Murphy.

to fraud and injustice. As between the parties themselves, the rule may be different, and Story on Bailments, sec. 299, cites Roberts v. Wyatt, 2 Taun. 208, for the position, “that if the thing is delivered back to the owner, for a temporary purpose only, and it is agreed to be re-delivered to him, the pledgee may recover it against the owner, if he refuse to restore it, after the purchase is fulfilled.” However this may be, it does not apply to the case before us, in which the plaintiff claims as a bona fide purchaser without notice. The judgment must be reversed, and a venire de novo awarded. PER CURIAM.

Judgment reversed.

JOHN A. PHILLIPS vs. PATRICK MURPHY, ADM'R.

A deed conveying one's active services for five years, passes no property in

the person making it, but gives a chose in action, and is not against the policy of the law.

Action of DEBT, tried before PERSON, Judge, at a Special Term (June, 1856,) of Cumberland Superior Court.

The plaintiff declared on a bond, of which the following is a copy:

“Six months after date, we, or either of us, promise to pay Charles D. Nixon, administrator of Louis A. Nixon, or order, the sum of one hundred and twenty-five dollars for value received, in hire of a certain negro, Robert Mills, for the term of four years, or so long as Louis A. Nixon was entitled to the services of the said negro." (Sealed and delivered.)

The due execution and delivery of the bond and its assignment to the plaintiff, were admitted. The negro, Mills, by an instrument of writing, under seal, had entered into a covenant with Louis A. Nixon, as follows:

“ Know all men by these presents, that I, Robert Mills, for and in consideration of sixty dollars, to me in hand paid,

Phillips v. Murphy.

at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have given, granted, bargained and sold, and by these presents do give, grant, bargain and sell unto Louis A. Nixon, his executors and assigns, my active services, as a servant, for the full and entire term of five years, and the full and entire control of my person and labor during that entire time.” (Sealed and delivered.)

After the execution of the latter instrument, Mills was, against his consent, put into the possession of the intestate, Barksdale, by the plaintiff, as administrator of Louis Nixon, and the bond, declared on, taken as the consideration of such transfer of the said Mills.

It was contended by the defendant, that this bond was void as being against the policy of the law. It was further contended, that the covenant, conveying his services, was void, and gave the covenantee no right to the services of Mills, as no man could sell himself into a state of slavery; and that the consideration expressed in the face of the bond sued on, was, therefore, void.

The foregoing facts being submitted to his Honor, as a case agreed, he gave judgment for the plaintiff, and the defendant appealed.

C. G. Wright, for the plaintiff.
Shepherd, for the defendant.

PEARSON, J. There is nothing in the transaction against the policy of the law. The legal effect of the deed executed by Mills to Nixon, was not to make a slave of Mills, or in any way vest in Nixon a title to him as property, but simply to give Nixon a right to his service for five years, upon an executory agreement, for a breach whereof an action of covenant would lie. The fact, that Mills is a free negro, makes no difference, for a white man may bind himself in the same manner. Indeed, it is common in some portions of the State, for white men to hire themselves during crop time, or for The peculiarity about this contract is, that it is for five years,

year.

Thompson v. Whitman.

and is extended, by express words, to the assigns of Nixon. In fact, it is clear from the language used, that the parties supposed that Nixon acquired, under the deed, some right more tangible than a chose in action against a free negro ! This supposition, however, does not alter the legal effect of the deed.

The other ground, as to a failure of consideration, was properly abandoned. At law, deeds do not require a consideration, except such as operate under the statute of uses, and a failure of consideration is not noticed, although in some cases relief is given in Equity. We do not intend to intimate that this is one of those cases. There is no error.

PER CURIAM.

Judgment affirmed.

WILLIAM THOMPSON vs. WILLIAM WHITMAN et al.

Where a bond was given in lieu of, and for an indemnity against, a forged note

which is surrendered, and a part of the contract is, that the individual, upon whom the forgery was made, was not to appear against the accused unless he

should be summoned, such bond is against the policy of the law and void. And this, although it is expressly declared by the parties, at the time, that

the new security is only given as an indemnity against the forged instrument, and not to compound the offense.

ACTION of DEBT, tried before SAUNDERS, Judge, at a Special Term (December, 1856,) of Wayne Superior Court.

The action was brought upon a bond, purporting to have been executed by William Whitman and Wright Whitman, payable to Lemuel H. Taylor, and endorsed by him to the plaintiff.

It appeared that one Gabriel Whitman was brought from the jail of Wayne county, before three magistrates, upon a question of commitment for an offense unconnected with the matter in question, and not being satisfied as to the propriety of binding him to Court, they proceeded to investigate, with

Thompson v. Whitman.

out any warrant or other written charge, a matter imputed to him, of which they had heard, to wit, a fraud committed on Lemuel II. Taylor, by obtaining his signature on a blank piece of paper, under a false pretense, and afterwards writing 'a promissory note over it for four hundred dollars, payable to one Scarborough.

Upon this investigation, Lemuel H. Taylor testified, that Gabriel Whitman came to his house, and asked him to lend him his name, and pointing to a place on the right hand side of a blank piece of paper, desired him to sign it there, which he did ; that afterwards a note was filled up, over the signature thus obtained, for $400, payable to Scarborough ; that he obtained the note from Scarborough, in order to show it to a lawyer, by giving his receipt for the same; that afterwards, on Wright Whitman and William Whitman's giving him the bond sued on, he surrendered Scarborough's note to them; and that he expects to pay Scarborough the amount of that note. On cross examination, Taylor said, “nothing was said by Whitman as to the use he wanted with my name; I think there was something said about a token or memento, but I don't recollect distinctly."

On the same investigation, one Micajah Martin testified that he was at the dwelling of Lemuel H. Taylor in the January previous, and heard Gabriel Whitman say, he wanted Taylor to let him have his name on a piece of paper, because when he liked any body well, he desired to carry some token about him ; that he produced the paper and pointed with his finger to the place where he wished Taylor to sign, and he accordingly did sign it in the witness'

presence.

The expression used by Whitman, when he requested Taylor's signature was, that he wanted to carry it about to remember him, and some such word as memento or token was also used.

It appeared in the case, that while Gabriel Whitman was in jail on the first mentioned charge, but before the examination about the note to Scarborough, a negotiation took place between Taylor and the defendants Wright and William, wherein it was agreed that Taylor should be secured and in

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