Stiles v. Lay. that the particular place which the defendant recognized as his place of residence, would be determined by the law to be so; and that if from the facts before the jury, it appeared the defendant intended the State of Alabama to be considered as his place of residence, then the jury should find for the plaintiff. That the defendant having a family in New Hampshire, and visiting and remaining a portion of each year with them, voting there, and while remaining there carrying on a business, although strong circumstances, were not conclusive. 4. Further, that if the defendant left New Hampshire with the intention of abandoning his residence there, although he left his family there, and occasionally returned there, and while there carried on business without intending to resume his permanent residence, then he was not a resident within the meanof the law. But if, on the other hand, he had not abandoned, or intended to abandon his residence in New Hampshire, but left that temporarily, with the view of returning, he was a resident of New Hampshire. 5. Further, that if the jury was satisfied that the defendant, when he left Alabama, in the spring of 1842, considered that to be his place of residence, and went on a visit to his family, with the intention of returning and making Alabama his permanent place of residence, or place of business, then that he could not be a resident of the State of New Hampshire, within the meaing of the act, and the jury should. find for the plaintiff. The defendant excepted to the refusal of the court to give the charges requested, as well as to those given to the jury. The assignments of error opens the demurrer to the replication as well as the matters excepted to at the trial. It is also insisted, the court should have awarded a repleader, as the verdict is on an immaterial issue. G. N. STEWART, for the plaintiff in error. W. M. SMITH, contra, insisted, the law was correctly expounded by the court in the charges. [Story Confl. L. 44, Stiles v. Lay. The replication to the plea is within the decision of Mayberry v. Herndon, 8 Ala. Rep. GOLDTHWAITE, J.-1. The District Courts of the United States, are not, by the general bankrupt act, invested with jurisdiction over all bankrupts, but only over such as petition to be discharged in the district where he shall reside or have his place of business at the time of filing the petition. [Sec, 7.] As that is the only court which, under the act, is authorized to discharge, it follows that a discharge granted by a court not having jurisdiction over the person, either in consequence of his residence, or his place of business being at the time within the district, is entirely void. If the facts asserted in the replication are true, the court in New Hampshire had no jurisdiction of the person of the bankrupt, and therefore the demurrer was properly overruled. summer. 2. But although the replication is good, it appears to us the evidence before the jury showed the defendant's actual, as well as legal residence was in New Hampshire, when his petition was filed. In Hallett v. The State, 8 Ala. Rep. we had occasion to consider the question of domicil in connection with the right to vote, and then held, that the mere intention to remove, without the actual removal of the family of the individual, did not constitute him a citizen of the State, so as to entitle him to vote. In the case under consideration, the family of the defendant resided in New Hampshire continuously for many years, and he returned there each This was his legal domicil, or residence, and if death had happened during any of his temporary sojourns in this State, his property would have been distributable by the laws of that where he left his family. Judge Story puts the precise case which is shown here, when he says, if a married man has his family fixed in one place, and he does his business in another, the former is considered the place of his domicil. [Confl. L. § 46.] In this case, assuming the plaintiff's evidence to be true, there was the intention to change the residence at a future time, but no actual change at the time of filing the petition. My views on the matter of intention, and how far it explains the actual residence were given in the case cited; but I agree here, that the actual residence Decatur Bank v. Spence. with the family, constituted the place of residence for all purposes. This conclusion shows the error of the refusal to give the charges asked, and the judgment is reversed and remanded. DECATUR BANK v. SPENCE. 1. A party who signs his name to a note in blank, with the understanding that it shall be filled up with a particular amount, or be used in a particular mode, is liable upon the note, to a party who receives it in ignorance of the agreement, and pays a valuable consideration for it, whether it be an advance of money or the extinguishment of a debt. Error to the Connty Court of Morgan. MOTION by the Bank against the defendant, on a note for $4,355 91, made by N. Scales, as principal, and the defendant and another as sureties. An issue being made up between the parties, and submitted to a jury, evidence was introduced tending to show, that the note sued upon was signed by the defendant, the amount to be paid being left blank. That it was signed with the agreement, between Scales, the principal, and the defendant, that it should be filled up with the sum of $2,000. That it was taken to the bank by Scales, and filled up by the discount clerk, for $4,355 92, the defendant having no notice of the amount so inserted. That the note was filled up for the entire amount of Scales' liabilities, both as principal debtor and as surety for others, which then existed in judgment against Scales. That the bank advanced no money, or thing in the purchase of the note. Thereupon the court charged the jury, that if Spence sign Decatur Bank v. Spence. ed the note when it was in blank, as to the amount to be paid, with the understanding and agreement between him and Scales, that it should be filled up with the sum of $2000, and the plaintiff had advanced no money, or other thing, in its purchase, but had filled it up for the amount of Scales' pre-existing indebtedness, as aforesaid, without the consent or authority of defendant, then it could not recover, although it had no notice of the agreement between defendant and Scales. To which the plaintiff excepted, and which is now assigned as error. L. P. WALKER, for plaintiff in error. A blank note will bind the person who signs it, to any sum which the person to whom he intrusts the paper, chooses to insert in it, and it makes no difference, whether the note is negotiated in payment of a pre-existing debt, or for a new monied consideration. [8 Porter, 297; 1 Ala. Rep. 18; 3 Id. 188; 6 Id. 244; 16 Peters, 1; 2 Id. 182; 20 Wend. 499; 24 Id. 115: 1 Bing. N. C. 469; 4 Shipley R. 177; 3 Kent's Com. § 44; 4 Bing. 496; 1 Stark. R. 1; Story on Prom. Notes, 215; Bayley on B. 499; 11 Conn. 388.] CHILTON and S. PARSONS, contra. Under the facts of the this case, the presumption is, that the note was taken by the bank as collateral security. It does not appear to have been received in payment or satisfaction of the judgments against Scales, or that any new consideration was given for it, it is not therefore binding on Spence, whose confidence was abused by Scales. [2 V. & B. 416; 4 Ala. 22; 11 N. H. R. 66; 9 B. & C. 206; Chitty Jr. 1419; Chitty on Bills, 81; 3 Chitty's Com. Law, 131; 1 Ala. 21; 3 Price, 38; 2 Bos. & P. 518.] ORMOND, J.-It has frequently been held by this, as well as other courts, that when one intrusts another with his signature to a note in blank, upon an agreement between them, that it is to be filled up with a certain amount, or to be used in a particular mode, and this contract is violated, either by the insertion of a larger amount, or by using the instrument Decatur Bank v. Spence. in a way not contemplated by the party signing it, if the person receiving it is ignorant of the fraud which has been committed, and gives a valuable consideration for the paper, he may recover upon it. This principle has been so frequently decided in this court, that it is only necessary to refer to the cases in which the rule is expounded. See Roberts v. Adams, 8 Porter, 297; Herbert v. Huie, 1 Ala. 18; Huntington & Sims v. The Branch Bank at Mobile, 3 Ala. 186; Leary v. Nance, 5 Ala. 370. This p.inciple is not directly controverted by the defendant's counsel, but he insists that the bank took the paper as collateral security merely, and is not entitled to recover from the defendat, upon whom a fraud has been practised, by the abuse of his confidence, although the bank was not privy to, or participating in it. Upon what consideration the Bank received the note, whether in satisfaction of the judgment, or as a condition of delaying payment, or as collateral security, we are not informed by the record. Nor could the jury have entered upon such an inquiry, if such had been the proof, as they were instructed by the court, that if the agreement between Scales and the defendant was violated, by the insertion of a larger sum than was stipulated between them, the Bank could not recover on the note, though ignorant of this secret agreement. This charge rendered any inquiry into the consideration paid for the note, by the Bank, entirely useless; and the charge being clearly erroneous, the judgment must be reversed and the cause remanded. |