Johnson v. King , 20 Ala. 270 ( 1852 )

PHELAN, J.

The motion to quash was properly refused. And even if it had not been, this court will not, in such a case, review the decision of the court below, on a motion to quash. If the party wishes to avail himself of the right to review the decision upon such objections, he must plead them in abatement.

The note itself was evidence of all it contained, and proved its own date, in the absence of stronger proof to the contrary, as much as its amount: and there is no difference in the rule in this respect, when husband and wife are sued on a note given by the wife when sole, from what it would be in any other case of suit on a note. The statute which makes the note proof, makes no distinction. Clay’s Dig. 340, § 162.

The second charge requested by defendant embraces the proposition, that when a note is signed by two persons, the person signing bis name first is to be presumed to be the principal and the other a surety. Although it most usually happens, that where one party to a note is principal and the other surety, the principal signs his name first, it would be altogether unsafe to establish such a rule as that for which defendant below contends, namely, that this shall be the presumption in all cases where there are more makers than one to a note or bond. Joint makers sign in the same way, and the old rule is the safe one that, in the absence of any thing to the contrary on the face of the note, all who sign shall be considered, not principal and surety, but joint makers. The facts that the plaintiff chiefly attended to business for his mother, and had but little property of his own at the time these notes were made, add nothing to the force of the other point, and create no such presumption in themselves. This charge was properly refused.

This brings us to the consideration of the last charge requested, and refused.

If plaintiff and his mother signed the notes, upon which judgments were afterwards recovered against the defendant Johnson, and he paid them or either of them before suit brought, he would be entitled to set off one-half of the amount so paid, against the demand of the plaintiff in this action. The plaintiff and his mother, in the absence of proof to the contrary, were joint makers of the notes, upon which these judgments were recovered, by the rule just stated above, and being such were liable to contribution as between themselves. When, therefore, defendant Johnson, as husband of Mrs. King, was compelled to pay these judgments, he would succeed to her right to claim contribution of the other joint maker, the plaintiff. He could have sued plaintiff for the amount and recovered, and it follows, that he would have the right to set off the amount in this action when sued by plaintiff.

Upon examining this request to charge, it will be found to lay down correctly the doctrine as to the right of contribution and of set off, but it proceeds to ask the court to instruct the jury, that defendant was entitled to set off one-half of the amount paid by him on said judgments. Here tbe request was too broad. Tbe proof would not justify sueb a charge. There was proof that be bad paid both the judgments, but there was no proof that be bad paid but one of them before■ plaintiff brought suit. To have given tbe charge as requested, would have been to instruct tbe jury that be could- recover one-half of both, and this would not have been proper; and according to tbe principle settled in a multitude of cases, where tbe charge requested is not correct, taken as a whole, tbe court may properly refuse to give it.

There is no error, and tbe judgment below is affirmed.