Nance ex rel. Lucas v. Pope , 1 Stew. 220 ( 1827 )

The CHIEF JUSTICE

delivered the opinion of the Court.

After this cause had been remanded to the Court below, the plaintiffs obtained leave and filed an amended declaration. In order to obtain a correct conclusion on the points now presented, it is important to inquire, was the aspect of the case, under the amended declaration, essentially different from what it was when the first verdict and judgement were rendered ? The special count of the amended declaration differs essentially from any of the counts in the original declaration. In some appellate Courts it is usual, when a cause is remanded, to send instructions for the direction of the Court below. This has not been the practice of this Court, nor is it believed that where this is the practice, special instructions would be given where the judgement of the revising Court turned on some single point, and did not fully embrace the merits of the action. This cause was remanded for further proceedings without any instructions to the Circuit Court, as to the manner of disposing of the case, when it should be again brought before it, and from an examjnatjon 0f t^e opinion then given by this Court, it wjjj ge seen that the judgement was reversed on the ground, that an improper charge was given by the Judge to the jury on the trial. This charge presented an isolated point, arising from the evidence as stated in the bill of exceptions.

If on the trial, after the cause had been remanded, the evidence presented a state of facts, materially different from that on which the charge excepted to, had been given, the opinion given by this Court as to that charge, could not control the case. The case as remanded, stood as if the verdict had been set aside by the Circuit Court, a new trial awarded, and the amendment made by leave of the Court. If the amendment had not been made, the opinion which this Court had given, could not control the case, unless the evidence had presented the same state of facts, and the same charge had been prayed for on the second as was given on the first trial; and then the proper mode of obtaining the benefit of the opinion which the Supreme Court had given, would not have been by plea. The opinion which, the Supreme Court had given, would be the law governing the case, and if the charge of the-presiding Judge should not be in conformity to the law, the proper remedy would be by bill of exceptions. If the doctrine contended for in support of this plea was correct, the appellate court, so far from affording relief in the last resort, would become the instrument of the most shameful abuses. On the trial in the inferior court, the Judge might think the testimony sufficient, inform the plaintiff that farther testimony, or testimony on other points, with which he was then fully prepared, would be an unnécessary consumption of time, and thus arrest the course of the evidence. The appellate court might determine, that the judgement was not sustained by the evidence stated on the record, and if their judgement, reversing and remanding the cause, precludes another trial as to the facts, the plaintiff would be without remedy. This would be as grossly absurd as unjust. The opinion of this Court in reversing the first judgement rendered by the Circuit Court in this case, was mainly on the charge to the jury on that trial.

The Circuit Court in effect, charged the jury that, if they believed the name of Simon Turner as one of the makers of the note to be a forgery, and that the note was transferred in payment of the debt of the defendants, they must find a verdict for the plaintiffs. This charge was considered by this Court, not warranted by the evidence as stated on the record. It was thought that the mere forgery of one of the names appearing on the note, was not of itself, sufficient to charge the defendants who had paid it away. Some general rules were stated and reasons given by the Court, in support of their opinion. But the reasoning of the Court in support of their conclusion is not the conclusion itself, and it is unsafe to rely on the reasoning in support of any conclusion, any farther than it is used in direct reference to, and is indispensably necessary to sustain it. Such reasoning cannot be safely applied where the premises have been changed.

In the use of general terms, too, language is often deficient in precision, and the precise idea intended is not conveyed, In the opinion given on reversing the first judgement in this case, it is stated as a general rule of law, that a person receiving a forged note in payment of a precedent debt, must return it to him from whom it has been received, before he can maintain an action on the original consideration ; but it was not intended to be understood that there were no exceptions to this rule. All that could then be decided, was that the evidence stated on the record, did not shew a compliance with this rule, or a case excepted from its operation. Another general rule then stated is, that if the note was paid in good faith, although it was a forgery, the party who received must place the party who paid it in as good a situation as to his rights on it, as when it was paid, before he can have a right of action, and if by the negligence of the party who received, the party who paid has lost any of his rights or security on the note, he is discharged.

From the record as it then stood, it did not appear that Pope and Hickman could be placed in as good a situation as when they transferred the note. It did not appear that notice had been given to Harris as endorser, or that his name too was forged. But it was not intended by that decision, to preclude the plaintiffs from proving on a future trial, that such notice had been given, that Harris’ name had been forged, or that he was insolvent, or other circumstances, to shew that the defendants had not been prejudiced by the failure to give notice to the endorser, 0IK^t0 return the note, nor could sucb have been tbe legal effect of the decision.

The merits of this case may be fully investigated under the amended declaration, and no good reason can be shewn, why leave to amend should have been denied to the plaintiffs.

We are of opinion that the Circuit Court erred in sustaining the defendants demurrer.

It is further alleged, that there was error in rejecting the testimony offered by the plaintiffs under their common counts. Without examining very minutely into the testimony so offered and rejected, it seems that testimony of the character which this purports to be, ought to have been received. If the note received in payment was a forgery and worth nothing, the plaintiffs had a right of action on the original consideration, and the evidence would have been proper under the indebitatus count.

We are of opinion that the judgement of the Circuit Court must be reversed, and the cause be remanded.

Judge White not sitting.