Meek v. Black , 4 Stew. & P. 374 ( 1833 )

Taylor, J.

The bill itself, in this case, shows, that the note executed by the complainants, to Black and Hilliard, was made with the intention of having it discounted in Bank, for the accommodation of the drawers; that it was so discounted, and the money paid over to the complainants.

It would be unnecessary to adduce authorities, to show, that accommodation indorsers occupy, as to the drawer of a note, the situation of securities.— Black and Hilliard were securities to the Bank for the complainants as much as if they had executed the note as such. Although as to the; Bank, or strangers, who might have become holders of the note, the parties bore the characters of drawers and indorsers, yet, with each other, they stood as principal and securities. One of these securities had acted as the agent of the complainants, in getting the other to indorse the note; in having it discounted in Bank, and in drawing the mony from the Bank, and applying it according to the directions of his principal. At the time the money was remitted by the complainants, to pay the debt thus contracted, it is evident there had not been a judgment recovered against the in-dorsers. The receipt which was given for the money, by Hilliard, was, as appears from its face, executed some considerable time subsequent to the receipt of the money; and from comparing that receipt with the judgment, it appears, that the money came to Hilliard’s hands, two or three months before the judgment was recovered. The money, therefore, could not have beenyeceived by Hilliard, as sheriff, in discharge of the execution; and his making the receipt as sheriff, is an evident attempt to substitute himself officially, as a debtor to the plaintiffs, in the judgment, instead of himself and Black, who stood as judgment debtors. This he could not legally do.

It is further objected to the judgment below, that Black and Hilliard occupied the position of joint payees, and that payment to one, amounted to payment to both.

It is believed, however, that their situation was altogether different from that of joint holders. The debt had, in fact, been contracted to the Bank, in the first instance ; no liability had ever existed from the plaintiffs to the indorsers. Suppose Black and Hil-liard, instead of getting the note discounted, had sued the plaintiffs on it; they certainly could not have recovered. Or suppose the plaintiffs had paid them, jointly, the amount of the debt; would that have prevented the liability of the plaintiffs to the Bank % Surely not. The indorsers had no claim upon the makers at the time the money was remitted to Hil-liard; therefore, it could not operate as a payment to Black and Hilliard, jointly.

It is the plain and irresistible inference, however, from all the facts, that this money was remitted to Hilliard as the confidential friend and agent of the plaintiffs. From the answer of Hilliard, it appears, that the plaintiffs had left a blank note, signed by them, in his hands, which he had filled up, got indorsed, and presented to the Bank, for discount. — - And the presumption is great from the whole answer, that his agency was by no means confined' to this transaction. But whether it was or not, in this instance, the plaintiffs confided in Hilliard, and if he abused that confidence, Black can not be made a sufferer by it; but the loss must fall upon the trusting party.

As this point disposes of the case, it is unnecessary to consider any other.

The judgment is affirmed.