Chandler, et al. &c. v. Shehan. In Childress v. Childress, 3 Ala. Rep. 752, a joint executor was the purchaser of some of the property of his testator's estate, and it was held, he was properly chargeable with the sum for which he gave a note. We there said, "that when an executor purchases a part of his testator's estate he is, after the expiration of the term of credit, chargeable with the amount as cash in the same manner as if he had collected money or converted property belonging to it." In King v. Shackleford, 6 Ala. Rep. 423, an executor signed a note payable to himself and his co-executor as the surety of a third person, and we held, in a suit in equity, by one executor against the other who was the surety, that the latter was not responsible to his co-executor, as the complainant did not pretend he was a creditor of the estate beyond the assets in his hands. The chief difficulty of allowing a suit against the surety arises from the circumstance, that when the promise made by his principal is considered as made to all the executors, the payment cannot be made so as to discharge the principal debtor from his official obligation. The case of Childress v. Childress, before cited, shows that after the expiration of the credit allowed by the sale, he is chargeable in the same manner as if he had received money, and Edwards v. Crenshaw, 14 Peter's, 166, shows that a payment by him to his co-executors would not discharge him from the liability to account to those entitled under the will or in course of distribution. On the whole, therefore, though we have had some difficulty in coming to this conclusion, we are of opinion that the plea to which the demurrer was overruled presents a sufficient bar to the case made by the declaration. 2. With respect to the evidence in support of the plea, we do not see that any question arose as to the identity of one of the plaintiffs as the principal in the note. The proof adduced was certainly competent, whether oral or written, and its sufficiency was for the jury to consider. The objection to the proof of this matter by the admission of two of the plaintiffs on the record, does not seem to be pressed, and therefore is not considered. 3. It is lastly urged, that the judgment is de bonis propriis, when it should have been de bonis testatoris. In Thompson v. Start, 1 Taunt. 322, the test of the proper judgment is said Thompson v. Armstrong, use, &c. to be, whether or not the money if recovered would be assets of the estate. This we think is the true rule, particularly with reference to the modifications which the duties of executors and administrators have undergone by our statutes, though it is elsewhere held, that the party is liable de bonis propriis, whenever he could sue in his own name. [Haller v. Smith, 10 East. 293; Jones v. Jones, 1 Biug. 249; see also, 2 Tidd, 1014. But this at most is a clerical error which, according to repeated decisions of this Court, will not reverse the judgment but will be here corrected. Judgment corrected so as to render costs de bonis testatoris, and affirmed in all other respeets. THOMPSON v. ARMSTRONG, USE, &c. 1. Although in general commercial paper in the hands of the holder imports a consideration as between the original parties to it, yet when it is shown, that it was made without consideration, or that it has been fraudulently and improperly put into circulation, the holder cannot recover without proving that he acquired the paper before it was dishonored, upon a valuable consideration. 2. A note payable to the cashier of a Bank in the hands of one who does not derive title from the Bank, imports on its face that it was made without consideration to be negotiated in Bank. Error to the Circuit Court of Butler. ASSUMPSIT by the defendant in error for the use of John Sutlif, on a promissory note, for one thousand dollars, payable to Andrew Armstrong, cashier, or bearer, negotiable and payable at the Branch Bank at Mobile, and purporting to be made by Benjamin Fuller, the plaintiff in error, and George H. Patillo. Fuller and Patillo not being served with process, the action as to them was discontinued. The defendant pleaded non est factum, and the general is sue. Thompson v. Armstrong, use, &c. Upon the trial, the plaintiff introduced the note, and evidence tending to prove the genuineness of the defendant's signature. The defendant proved that the note was in the form which had usually been made for discount at the Branch at Mobile, at the time of its date, but that the Bank had not discounted the note. Patillo was examined as a witness and swore that he never signed the note. Fuller also gave testimony that he had no recollection of signing the note, and did not know any thing about it. Another witness proved that he saw a note similar to this in the possession of Fuller about the time of its date. There was no proof that Sutlif had given any consideration for the note. The Court charged the jury that if they found from the proof that the signature to the note was in the hand writing of the defendant they must find for the plaintiff; and this notwithstanding they should give full credence to the testimony of Patillo and Fuller; to which the defendant excepted, and which he now assigns for error. Cook, for plaintiff in error. In this case the question is whether the evidence was sufficient to cast suspicion upon the note. The proof was clear that there was no consideration passing between the original parties. Between them the consideration may be always inquired into. [4 Johns. 296; 7 Id. 26; 17 Id. 301; 7 Cow. 3; 2 B. & Adol. 291.] The unusual form and evident purpose of the note, was sufficient to put any one upon inquiry. [1 Ala. Rep. 641.] The note was not negotiable, and therefore stands as a common note under the statute. The assignee cannot deprive the maker of his defence, although he may exclude the payee's admission after his possession accrued. The note is a chose in action, and the right of the plaintiff depends upon the right of the payee. [2 B. & Ad. 291.] The note is not of itself proof of a consideration, when, as in this case, it appears to have been made for a different purpose; and the plaintiff should therefore have been required to prove a consideration paid for the note. [1 Stewart, 252, 273; 10 Wend. 314; 10 Johns. 198; 1 Ala. Rep. 568; 5 Id. 347; 1 Starkie, 14; 2 Id. 171.] Thompson v. Armstrong, use, &c. JUDGE, contra. All the questions now presented were settled by this Court when the cause was last here. The note itself imports a consideration, and defendant must show that the note was put in circulation by fraud or force before plaintiff can be called on to show how he came by it. [4 Ala. Rep. 613; 5 Id. 383; 6 Wend. 615; 10 Id. 86; 12 Id. 485, 523; 13 Id. 605.] ORMOND, J.-This note being payable in Bank is by the statute made a commercial instrument and to be governed by the rules of the law merchant. The general rule is that mercantile paper in the hands of the holder, imports a consideration passing between the original parties. When, however, this presumption is repelled, and it is shown that the instrument is made without consideration, or has been fraudulently or improperly put into circulation, the holder will be required to prove that he gave value for the note, or bill, and that he acquired it before it was due, or he cannot recover. [Chitty on Bills, 79; Collins v. Martin, 1 B. & P. 650; Marston v. Forward, 5 Ala. Rep. 347; Wallace v. The Branch Bank, 1 Ala. Rep. 565.] In this case, it appears, that the note was made without any consideration, for the purpose of being negotiated in Bank. This was indeed indicated by its form and peculiar structure, being payable to the cashier of the Bank, through whom no title was attempted to be derived. In addition, one of the makers of the note, swore, that he never signed it, and another, that he had no recollection of ever having seen it before. Under these circumstances, the plaintiff should have been required to prove that he gave value for the note, and that he acquired it before it was due. The case of Heath v. Sansom & Evans, 2 Barn. & Al. 291, was not so strong a case as the present, and yet the Court required the indorsee to prove that he gave value for the indorsement. The parties went to trial upon the plea of non est factum, and the general issue. The Court charged the jury, that if they found that the defendant signed the note, they must find for the plaintiff. As the plaintiff had not proved that he gave a consideration for the note, or that he acquired it before it The State, ex rel. Battle. was dishonored, by becoming due, he was not entitled to recover, even if the signature of the defendant was genuine. The charge of the Court, therefore, putting the case entirely upon the genuineness of the signature, was calculated to mislead the jury. When this cause was here before, it went off mainly upon the admissibility of one of the co-makers as a witness, and the precise question here considered was not, though it might have been, passed on by the Court. It is manifest that the case has never been put before the jury on its true merits, the judgment must therefore be reversed, and the cause remanded. THE STATE, EX REL. BATTLE. 1. After a Circuit Court has disposed of the business before it, it need not continue its session until the expiration of the term as limited by law, although a jury may be deliberating upon their verdict in a criminal prosecution for a capital offence; in such case the Court is only bound to afford a reasonable time for the jury to agree upon a verdict; and if the record does not show the reverse, it will be intended that the session continued thus long. 2. Where a prisoner will not appear in Court to hear the verdict which the jury announce themselves ready to render, the Court may order a mistrial; and a direction to them to erase their verdict, as it has no other effect than the mistrial itself, cannot prejudice the prisoner; and consequently he can claim no advantage of it. THE petitioner sets forth that he was indicted in the Circuit Court of St. Clair, at the Spring term, 1842, for an assault on James Kennedy, with the intent to kill and murder. At the term holden in the Fall of that year he was put upon his trial on that indictment-that the jury which had the case in charge being unable to agree, the presiding Judge, without any authority therefor discharged them, on Friday the fifth day of the Court and before the expiration of the term. At the Spring term, 1844, the petitioner moved the Circuit Court to discharge him for the cause above stated, but this |