Whitlock v. Heard , 16 Ala. 336 ( 1849 )

CHILTON, J.

The first charge given by the Circuit Coirrt cannot be supported. It assumes that the two hundred dollar note, borrowed from Heard by Whitlock, and lost by the latter at faro, continues a lien upon - the stock sued for, because the faro dealer, who won it from Whitlock, transfered it to Martin & Stypes, who won it from him, or received it in payment of a gambling debt, and who agreed that Stypes should take the entire interest in consideration of their joint winning and in payment of a debt due from Martin to Stypes. The note having been made by Heard for the accommodation of Whitlock, as between them, it was wholly without consideration. In the hands of Whitlock, before it was negotiated, it was no more than waste paper. It must then depend for its binding efficacy upon a valid negotiation. The losing it upon a game of faro, and the winning it by Martin .& Stypes, is not such a negotiation as gives it vitality in their hands, and Marlin & Stypes not being bona fide holders for value, cannot by any arrangement between themselves, confer upon the instrument a binding obligation which it did not previously possess. See Saltmarsh v. Tuthill, 13 Ala. Rep. 390; The same v. Plant. & Merc. Bank, 14 ib. 668-679; same v. Hill, at the present term. Had Heard, before notice by Whitlock, that he had lost the note at gaming, and a request not to pay it, paid the note, then he would be protected, as he should not suffer by the negligence or default of Whitloek. But if after he received such notice, he made the payment, or renewed the note, the lien which he held upon the stock for the satisfaction of the note, is extinguished so, far as the note is concerned. If, however, the note was renewed before notice, and the renewed note is outstanding against Heard, he would not be bound to let go his hold upon his lien, until indemnified against the cost and expense of defending against it.

These views, with the opinions expressed in this batch of cases which for several terms have appeared upon the docket of this court, will, we trust, enable the Circuit Court properly to put an end to this litigation in the court below. See Whitlock v. Heard, 13 Ala. Rep. 776; same v. Stewart, ib. 790; same v. Stewart, et al. 15 ib. 601.

Let the judgment be reversed, and the cause remanded.