
    
      Henry Spikes v. Daniel English.
    
    
      An action on the case for knowingly and fraudulently selling and representing as unpaid, a single bill which had been paid, was held to have been properly brought by the party to whom the bill had been sold, although lie had transferred it to another, by written assignment without recourse, for valuable consideration. The Court refusing to look beyond the plaintiff's present possession of the bill.
    In an action for a deceit in fraudulently transferring and representing as unpaid, a note which had been paid, the Court held, that the jury might well find the amount ofthe note, with interest, as the measure of damages.
    
      Before Wardlaw, J. at Abbeville, March, 1849.
    Case, for knowingly and fraudulently selling and representing as unpaid a single bill which had been paid.
    
      Roger McKinney and the defendant had some claims in common to money in Alabama. Some collections had been made, and a division had taken place with which the defendant was dissatisfied. They met, and after a full adjustment, in which previous errors were corrected, R. McKinney gave to the defendant his single bill for $247 21, dated 10th September, 1840, and payable one day after date. A further sum of $500 still remained due to them in Alabama, which it was expected that the defendant would go for. It was agreed between them, that if the defendant got that money, the half of it, which after payment of expenses, would belong to McKinney, should go in payment of the single bill, and the single bill be delivered to McKinney. The defendant, then about to start for Alabama, had not money to defray his expences, and McKinney loaned to him, for that purpose, $20, which sum was credited on the single bill the same day it was given.
    The defendant went to Alabama. After his return, he said repeatedly that he had got the $500, and that the single bill was to be given up to McKinney. R. McKinney died. The defendant transferred the single bill to the plaintiff, and (as he said in speaking of the trade, to which there was no witness,) received for it a note on Hacket for $50, a note on Patterson ior $18, a note on himself for 34, and the balance in cash, at 10 per cent, premium. The note on Hacket was considered doubtful, but was paid.
    The plaintiff transferred the single bill to Williams and White, in part payment of a negro woman and children, making a written assignment, “ without recourse.” An action on the single bill was brought — Daniel English, for the use of Williams and White, v. the Executors of R. McKinney— (McKinney’s estate being solvent;) and upon proof of payment, a verdict was rendered for the Executors, in July, 18-46. A fi.fa. for the costs against English was satisfied. The negroes bought from Williams and White are still in the plaintiff’s possession.
    A nonsuit was moved for, on the ground that neither misrepresentation nor damage had been shown. The Circuit Judge thought there was evidence of which the jury should be allowed to judge, and refused the motion.
    After full. argument, the. case was carefully submitted to the jury.
    His Honor held that the plaintiff was bound to show the pre-payment of the single bill, the defendant’s scienter, the fraudulent misrepresentation, and the damage; that none of these facts could be presumed without proof, but any of them might be inferred from circumstances, if circumstances were shown sufficient to induce belief, which was not checked by the absence of direct evidence. What degree of circumstantial evidence should suffice to convince the jury, he did not pretend to prescribe; nor did he intimate his own opinion as ' to the weight of the several circumstances which had been dwelt on in argument, and which he called to the attention of the jury.
    He held that a liability innocently incurred, in consequence of the defendant’s fraud, would constitute damage, which might sustain an action of this kind; but he called the attention of the jury to the natnre of the paper, and of the assignment which the plaintiff had made of it. He said that even if no legal liability had been incurred by the plaintiff’s transfer to Williams and White, a moral obligation thence devolved upon him to refund to them what he had received for that which was of no value ; and if the circumstances led to the belief that the plaintiff had recompensed them and taken back the single bill, then his condition was just as if he had never transferred it. The possession of the paper by the plaintiff was adverted to as the ordinary prima facie evidence of title ; the rebutting circumstances, too, were called to mind; and the question was submitted, whether the plaintiff had, as defendant supposed, shuffled the loss upon a third person, or had himself either reassumed it, or been always liable to meet it.
    He told the jury that they could not find interest; but that, if satisfied of the plaintiff’s right to recover, they might, in a sound discretion, find so much as would compensate his loss, and punish the defendant’s frauds.
    A verdict was returned for the plaintiff, $342 38.
    The defendant appealed, and moved the Court of Appeals for a new trial, on the grounds following;
    1st. Because his Honor charged that false representations by defendant to plaintiff might be inferred from the fact that the defendant received money of the obligee, R. McKinney.
    2nd, Because his Honor held, that Henry Spikes was injured, from the danger incurred by his receipt of and assigning a single bill alleged to be paid.
    3d. Because his Honor inferred, and so instructed the jury, that from the production of the single bill in Court, it might be presumed that H. Spikes had the possession of the same, and that it had been returned to him by L. J. White, against the record of the case produced in Court, and against the proof that it was transferred to L- J- White.
    4th. Because, there was no proof of damage on the part of plaintiff. But on the contrary the proof was that plaintiff had transferred the single bill to L. J. White & Co., and had received full value from said White & Co., who had not sued him, and to whom the evidence showed he was not responsible,
    
      5th. Because there was no proof that, plaintiff had ever sustained any, even the least damage.
    6lh. Because there was no proof of the false representations, nor of the wilful intention necessary to support an action of deceit.
    7th. Because the verdict was excessive, taken in connection with the sum found to have been received by defendant for the said single bill, supposed to have been paid.
    8th. Because the jury found interest on the amount of the single bill transferred by D. English to Henry Spikes.
    9th. Because the verdict was contrary to law and evidence.
    
      T. TKomson, for the motion.
    
      Me Gowan, .contra.
   Curia, fer Richardson, J.

The fraud ofDaniel English, the defendant, was well proved. R. McKinney, the maker of the single bill, had clearly and fully paid it by the receipt by English of that much money belonging to R. McKinney, and according to their agreement that such money should be so applied. This English repeatedly acknowledged, and stated that the single bill was to be given up to McKinney. But he assigned it to the plaintiff, Henry Spikes, for valuable consideration. Afterwards Henry Spikes endorsed it to Williams & White, also for valuable consideration, and endorsed it to them — waiving Spikes to require that a demand should be made upon the maker, McKinney, and of notice to Spikes.

After McKinney’s death, Williams & White brought suit against his executors, upon which suit a verdict was given for the defendants. This suit was brought in the name of Daniel English, the payee, for the use of Williams & W'hite, and the costs of suit were paid by English. Thus it appears plainly, that the bill had been paid by McKinney before English transferred it to Spikes, and he, English, knew of that, payment. English was, therefore, bound to refund to Spikes the money he had received, for the transfer of the bill, and any damage Spikes may have received by reason of so fraudulent an assignment.

The only question remaining is, whether Spikes had, strictly speaking, any right of action. But can there be a rational doubt of his right of action? He had endorsed the bill to Williams & White for a full consideration, and was liable to them upon such endorsement for the full amount of the bill.

It was clear, then, that Spikes, having the bill in possession, had either recompensed Williams & White, or had in some way reassumed his right to the bill. Prima fade, at least, we must so conclude.

As to the amount of damages, in this action for a deceit, the jury might well give the full amount of the bill and interest, as it appears they have done — as the measure of the damages.

I apprehend they were at liberty to give even more than this aggregate sum, to compensate Spikes and punish so palpable a fraud.

This exposition of the case answers and covers all the ground taken for a new trial, — and the motion is therefore unanimously dismissed.

The whole Court concurred.

Motion refused.  