Gee v. Nicholson , 2 Stew. 512 ( 1830 )

By JUDGE TAYLOR.

It appears that Williamson bad executed his note to the Tombeckbe Bank, with Gee and one Nicholson as his securities. That some time after this, by an arrangement which was entered into between Gee and Williamson, and for a valuable consideration, Gee executed the instrument of writing on which this action is founded, by which he promised to pay the debt due the said bank, “as the several instalments maybe-come due.” The note due to the bank was not discharged in conformity with this agreement, and suit was instituted thereon against the payors, and a judgment, which, from its defectiveness, is totally void, was rendered against Nicholson alone; an execution appears to have been thereon issued against all the defendants, and one half of the amount of the exeeution was paid by Gee, and the other half by Nicholson. It further appears that said Williamson assigned at another time to the said Gee, a note on one William Shaw; that suit was instituted by Gee against Shaw, and judgment was recovered for the whole amount of this note; that Shaw instituted a suit in Chancery against Gee and Williamson, and upon filing his bill, obtained an injunction on the allegation of fraud in the consideration for this note. The injunction, on the coming in of the answer, was dissolved, and the whole of the money was collected by Gee, but afterwards, on the final hearing of the bill, a decree was rendered perpetually injoining about $800 of said judgment; from this decree, a’writ of error was subsequently sued out by Gee’s administrator, oí the prosecution or result of which there is no evidence. This decree in favor of Shaw, was offered as evidence under the plea of set off, and rejected, and to the opinion of the Court rejecting this evidence, an exception was taken, and it is now insisted, 1st. That there is no cause of action in the declaration; and 2nd. That the evidence should have been admitted.

In support of the first point, it is contended, that Williamson cannot sue on the instrument which is made the foundation, of the action, until he has suffered by Gee’s default, and that an averment that he has been compelled to pay the debt to the bank, or a part of it, is necessary to sustain his action.

I do not believe this position is maintainable. The instrument itself formed a sufficient foundation for the action. When the agreement contained on its face was violated, Williamson had a right to sue upon it, for he was liable to the bank, and his remedy against Gee was open and plain.

The other objection, I think, has been well taken. Eight hundred dollars had been perpetually injoined at the suit of the payor of a note given to Williamson, and assigned by him to Gee, upon proof of fraud on the part of Williamson in the inception of that note. The indorsement was prima facie evidence of a full and fair consideration having passed from Gee to Williamson, when this assignment was made. The decree injoining the collection of a part of this judgment, gave to Gee a right of action against Williamson, for the amount injoined, and if the contract between them at the time the note was assigned, was such as would prevent a recovery, it would devolve on him to prove it in defence. Nor is it considered that the dissolution of the injunction by the interlocutory decree, and consequent collection of the money, can vary the cause as regards the admissibility of the testimony offered. By the final decree, Gee was bound to repay the money to Shaw; he might have done so, and that fact he could not be permitted to prove until he had laid the foundation for the admission of evidence establishing this fact, by'introducing the record which contained that decree. The suing the writ of error can make no difference. We cannot presume the decree to be reversed until this is shown by proof, but must consider it as yet in full force.

Judgment reversed, and cause remanded.

Judge Crenshaw not sitting.