Hambright v. Stover , 31 Ga. 300 ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

The charge of the court was erroneous.

There was no evidence that the plaintiff got the papers surreptitionsly, nor anything before the Court to show that the plaintiff was not the legal holder.

.. The plaintiff did not seek to recover as an innocent holder of the paper, and without notice of the defendant’s defense, or the equities subsisting between the maker and payees. On the contrary, he came into Court, claiming title to the paper as administrator of the payee, and was driven from that title by the objection of the defendant, and then placed his right to recover on the merits of the contract — the note being payable to bearer — and in that position, it was immaterial to the defendant to inquire into this title to the note. And here we might rest the case, as a new trial must be granted 011 that ground. But as the other point — that the verdict was contrary to law and evidence — is made and insisted upon, we have felt it our duty to pass on that also.

The defence was, that the negro woman, the consideration of this note, was unsound. The woman was pregnant at the time of the sale, and died subsequently from a laceration of the womb, and an inability to give birth to the child, on account of its unusual size, which sometimes happen, say the physicians who treated the negro, in healthy as well as unhealthy women. The laceration, which was the immediate cause of the death, took place at the time and in the effort to .■expel the offspring. The womb as well as the general health of the woman was otherwise healthy. We do not think this was any evidence of unsoundness of the negro at the time of the sale. A warranty of soundness does not extend to the subsequent casualties of parturition. And as this was the only evidence of unsoundness, the verdict was contrary to law and the evidence. A new trial must be granted.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in not granting the new trial on the following grounds:

1st. Eor error: in charging the jury that if they should believe the plaintiff is not a bona fide owner of the note for .a valuable consideration, but got it surreptitiously and without authority from the papers of J. A. Stover, deceased, they •would be authorized to find for the defendant.

2d. Because the verdict was contrary to law and evidence.