Childs v. Franklin , 10 Ala. 79 ( 1846 )

COLLIER, C. J.

There is nothing stated in the bill of exceptions to warrant the inference that the payee of the note has acted in bad faith. It should rather be intended that the failure to cause satisfaction of his judgments to be noted upon the record, is the mere consequence of inattention or neglect.

The material inquiry then, is, do the facts establish a failure of consideration ? We think, giving to the evidence the most probable interpretation for the defendant, of which it is susceptible, and the entry of satisfaction cannot be regarded as a condition precedent to his promise, as evidenced by the note, or of his liability to pay. That was an act to be performed post factum, and its non-performance ean furnish no defence to the action, unless some injury or loss resulted as a consequence to the defendant. It is not pretended that the payee of the note has ever caused executions to issue on the judgments, or has used them to the prejudice of the defendant, or in such a manner as to indicate that he has asserted* their continuing vitality. ®

It will be competent for the defendant, at any time, to move the court to cause satisfaction of the judgments to be entered, without waiting for executions to be issued. The court in which a judgment is rendered, when its payment is shown, may declare the fact upon the record, and order that no execution issue thereon ; or if an execution has issued, may effectually supersede it.

If the judgment should be used to the injury of the defendant, he may arrest proceedings thereon, and reimburse himself for all damages sustained by action at law. But if an action were commenced, unless the defendant was prejudiced by the failure to enter satisfaction of the judgments, the recovery would only be nominal, and it cannot, when set up as a defence to the notes, avail, either to bar the action, or diminish the damages.

It follows as a consequence, that the judgment of the Circuit Court is affirmed.