Tommey & Stewart v. Ellis

McCay, Judge.

There is plenty of evidence in this record to sustain the verdict; indeed, we think the weight of the testimony is that way. The new trial was gaanted by the Judge solely on the ground that he thought he had improperly neglected to charge the jury that the retaining of the notes was not conclusive.

We think he did, in effect, charge this, since he told the jury that if they, in fact, believed there had been a bona fide transfer of the debt, the transferee was protected.

That the retaining possession of the notes was some evidence that there was no transfer, can hardly be doubted. And the whole charge of the Court is pregnant with the idea that if the jury believed, from the evidence, there had been a transfer, either absolutely or as collateral, the transferree was to be protected. It is hardly possible the jury should have taken up the idea that the retention of the notes was conclusive against a transfer. Every man of common sense knows that if the transfer was made, and was collateral only, it was very proper to retain the notes, and it would be presuming very far on the ignorance of a jury to suppose that it was a sine qua non. It should be instructed against so gross a perversion of both law and common sense as this. The verdict is in accordance with the evidence, even though the jury only gave the proper weight to the fact of the retention of the notes. If the defendant’s evidence went to show a positive transfer, and not a mere collateral deposit of the debt sued as security, then the retention of the notes by the transferree was very suspicious, and went largely to weaken the effecttof the testimony. On the whole, we think it most in accord with the principles of law and justice that the verdict shall stand.

Judgment reversed.