Seawell v. Henry , 6 Ala. 226 ( 1844 )

GOLDTIIWAITE, J

1. We think it very clear that the Circuit Court mistook the law, with respect to the effect of the tender of bank paper in this case. The rule is, when bank notes are offered in payment, and no objection is made on that account, the offer is a good tender. [Wright v. Reed, 3 Term Rep. 554;] and the reason is, because bank notes generally pass as cash. [Miller v. Race, 1 Burr. 452.] It is said, however, that here the notes offered were those of a bank which had suspended specie payments, and therefore, the reason fails. This fact does not appear in the case, but if it did, we apprehend it would not change the rule, for an additional reason ; to hold such a tender good, growls out of the circumstance, that when no objection is made, the party making the tender is lulled into security,| when if objection wTas made, he could, in most cases, readily obviate it, by procuring specie.

2. It is objected, that the judgment oughtnot to be reversed, for this error, because the court mistook the turning point of the case, which was, that there was in fact no mortgage here ; there being no debt, there could be no security. It is a sufficient answer to this, to say, that we cannot know precisely how the fact was in the court below ; the defendant tenders his bill of exceptions, and as the court ruled it to be a mortgage transaction, it was not necessary for him to show the proof which made it such. The court held it to be a mortgage, and the proof probably made it such ; we cannot therefore look to the case, on the facts stated, and presume nothing more was before the j>ury, because the party excepting is not bound to state his whole case, but only so much as shows the error complained of. We may remark, however, that on the facts stated, we might feel inclined to consider the sale as a mortgage security; how it would be, if a distinct agreement was shown that it was an absolute sale, and that, in case of the death of the slave, no debt survived, is a question not presented, and need not be determined now.

We feci constrained to consider the case as it was considered in the court below, for the purpose of sending it back, that the parties may have an opportunity to present the case distinctly, on what is said to be the principal question.

Judgment reversed, and cause remanded.