Logan v. Hodges , 6 Ala. 699 ( 1844 )

GOLDTHWAITE, J.

The charge of the county court to the jury cannot be suaintained. The statement of both the parties was before the jury, as evidence; and no exception having been taken to. this course, we must consider it as receiving their assent. If the jury gave credence to the plaintiff, the consideration, then, of the note sued on, was the promise be him to assume, or in other terms, his agreement to pay, the debt due by the defendant to Glover’s estate. The payment of this debt by the plaintiff was not essential in aid of his right to sue upon this note. It is true, .the defendant was entitled to his remedy for any injury-sustained in consequence of the omission to pay it; but the right to do so previous to commencing the suit, did not impair the plaintiff’s right of action.

The mere circumstance that the defendant is, as urged by his counsel, liable for two debts at the same time, where only one benefit has been received, is not so uncommon as to create any exception to general rules of law; and we doubt not a remedy would have been readily found if the plaintiff here had been incapable, by reason of insolvency, of taking up the note to Glover’s estate. The cases of Olmstead v. Griesly, [28 Johns. 12], and Farley v. Cleveland, [4 Cowen, 432,] are quite conclusive to show, that the promise by the plaintiff to pay the debt to Glover’s estate, was one which could be enforced against him; and, therefore, a sufficient considerasion for the notes given by defendant.

Judgment reversed, and cause remanded.