Whitlock v. Stewart , 15 Ala. 601 ( 1849 )

CHILTON, J.

When this case was here at previous term of this court, (13 Ala. Rep. 790,) we held, that if Heard, after being notified that Whitlock had lost the note by gaming, and after having been requested not to pay it, had notwithstanding, proceeded to make payments, such payments did not constitute any charge upon the property pledged for his indemnity. And upon the hypothesis that the substituted note, or a portion of it remained unpaid, we said, that Whit-lock should be bound to indemnify Heard against the expenses of defending against it, before he could terminate the bailment and take the property which had been pledged for Heard’s protection. Also, that a charge which denied to Heard, any indemnity against the substituted note, if given before notice of the manner in which Whitlock lost the original, was properly refused.

It is very clear, that Heard, having a lien on the property in his possession to indemnify him against the two hundred dollar note, was not bound to surrender it until the note was delivered up to him, or if notified of its loss by gaming, until hé was indemnified against the cost and expenses of a suit upon it. The argument, that the note being void in the hands of the winner, could create no liability on the part of Heard to pay it, and consequently that the lien was discharged, would be conclusive, if one could not be hárrased and put to expense in defending against a void note. If the note is found in the hands of a third party asserting title to it, without any fault on the part of Heard, he was not bound to let go his hold on the proparty pledged for his protection, until he was otherwise indemnified. On the other hand, if, with a knowledge that Whitlock had lost the note by gaming, and being cautioned not to pay it, Heard had substituted a new note in its stead, and cancelled the original note, his lien on the property by virtue of the original pledge is gone. So also, if he received notice of the manner of the loss after executing the new note, but before its payment, the same result would follow.

Although Heard was not bound to surrender the property while the note, without his fault, was outstanding against him, as he would thus have been left without any indemnity, as was previously decided in this case, yet it by no means follows that he was authorized to pay the note voluntarily though no indemnity was tendered him. On the contrary, we este.em it a clear proposition of law, that if, after notice of Whitlock’s claim, and the manner of his loss of the note, Heard undertook voluntarily to determine between him and the holder of the note, and decided in favor of the latter, he did so at his peril, and if he has paid the note without being compelled to do so by suit, he and not Whitlock must sustain the loss. (See Butler & wife v. The Life Insurance & Trust Co. et al, at the last term.)

The ruling of the circuit court is opposed to this view, and required of Whitlock indemnity as a prerequisite to Heard’s withholding payment of the note ; whereas he was only bound to indemnify, if the note was outstanding without Heard’s fault, as a condition required by law to relieve his property from the previous pledge, so as to enable him lawfully to take it from Heard’s possession. It follows from what we have said that the charges asked should have been given, and that the court erred in refusing them, and in the charge given in lieu of them.

It is unnecessary to examine the question as to the admisibility of Castleberry’s declaration to Ware, as the point will hardly arise upon a subsequent trial. See however, 1 Greenl. Ev. 113, Chandler v. McPherson 11 Ala. Rep. 583.; Goodgame v. Clifton, 13 Ala. 183.

Let-the judgment be’reversed and the cause remanded.