28 Ala. 606 (Ala. 1856), McKenzie v. Branch Bank

Citation:28 Ala. 606
Opinion Judge:STONE, J.
Party Name:MCKENZIE v. BRANCH BANK AT MONTGOMERY.
Attorney:NAT. HARRIS and WM. B. MOSS, for appellant. ELMORE & YANCEY, contra.
Court:Supreme Court of Alabama
 
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Page 606

28 Ala. 606 (Ala. 1856)

MCKENZIE

v.

BRANCH BANK AT MONTGOMERY.

Supreme Court of Alabama

January Term, 1856

         [NOTICE AND MOTION FOR SUMMARY JUDGMENT AGAINST BANK DEBTOR.]

         APPEAL from the Circuit Court of Montgomery.

         Tried before the Hon. JOHN GILL SHORTER.

         NAT. HARRIS and WM. B. MOSS, for appellant.

         ELMORE & YANCEY, contra.

         STONE, J.

         There are two fatal objections to the first charge asked by the defendant in the court below, either of which justifies the qualification given by the judge: first, the acceptor of the bills, himself, passed the papers to the Bank, ( Saltmarsh v. P. & M. Bank, 14 Ala. 668); and, secondly, the bills were not sold to the Bank in payment, but placed there as collateral security to a pre-existing debt.--Boyd & Macon v. McIver, 11 Ala. 822; Thompson v. Armstrong, 7 Ala. 256; Marston v. Forward, 5 Ala. 347; Bank of Mobile v. Hall, 6 Ala. 639; Wardell v. Howell, 9 Wend. 170; Andrews v. McCoy, 8 Ala. 920. The endorser, Farley, could make the same defense to the bills thus placed in the Bank, as if they still remained in the hands of Robert Harwell, the acceptor; and any charge which assumes the contrary, does not assert a correct legal principle. This charge, as asked, was properly refused. See, also, Wallace v. Br. Bank of Mobile, 1 Ala. 565.

         The second charge asked and refused, is somewhat involved. Certainly it was the duty of the Bank, which had assumed to apply a part of the proceeds of the collateral paper to another debt, to furnish to the jury a basis, to enable that body to determine the share to which defendant was entitled. If the charge had asked this instruction, unclogged by other and illegal propositions, we would feel constrained to reverse the case. But in asking the charge, the counsel embarrassed it with other terms, which, taken as a whole, justified its refusal. It sets out with the assumption, that defendant had shown certain facts to exist. The language employed is, "When the defendant McKenzie shows," &c. This language, when used in reference to conflicting testimony before a jury, is always improper. The court cannot predicate, or assume, that any fact, embraced in the issue, has been shown or proven. The jury, under our system, is the only tribunal which passes on controverted facts in courts of law; and until the verdict is rendered,...

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