Kent's Adm'rs v. Lyles , 7 G. & J. 73 ( 1835 )

Archer Judge,

delivered the opinion of the court.

Treating the prayer upon which the instruction of the court was given, as one intended to elicit from the court an opinion, that if the jury found the note was actually given, there was no consideration for the agreement, as it is probable may have been the intention in presenting the prayer, we shall proceed to the examination of that question.

It has been urged that the defendant had already the acceptance of the plaintiff!, and that the talcing from the plaintiff a note, for the acceptance, which was of no higher dignity than the acceptance, there could grow out of such a transaction no consideration. But it must be recollected, supposing the acceptance to have been signed by the plaintiff, that serious embarrassments and difficulties might attend its recovery, for the plaintiff had outstanding another acceptance growing out of the same transaction, which it appears was also claimed from him, and he in the origin accordingly protested against any independent assumption to pay the defendant, alleging, that if a partnership were proved to have existed between John and Brooks B. Breeze, he might also have to pay the acceptance made by him on the draft of the firm. It turned out in fact that the plaintiff had to pay the draft drawn upon him in the name of the firm, and the defendant had therefore an interest in getting the promise of Lyles in writing, and of surrendering the acceptance, so that he might be in no difficulty growing out of the conflicting claims of John Breeze, and of the firm of John and Brooks B. Breeze. It does not seem evento have been admitted that the alleged acceptance was genuine. Under all these circumstances of dispute, and anticipated difficulty in relation to the recovery on the acceptance, the adjustment of them all, by the giving of a note for the amount claimed by the defendant, certainly furnished a sufficient consideration for the agreement to indemnify.

But the existence of the acceptance in favor of the defendant by Ia/Us, is not established. The acceptance does not appear in the bill of exceptions, and it is not admitted, but denied. In the absence then of an acceptance, the giving of a note for the amount which IajUs owed to Breeze, certainly furnishes a good consideration for the agreement.

The prayer however, is not that the note furnished no consideration for the agreement, but that the agreeing to give a note constituted no consideration.

If the note were the subject matter in controversy, the prayer was irrelevant, and therefore properly rejected by the court, and could only have been calculated to mislead the jury. The matter for enquiry was the consideration of the note, which consummated the arrangements of the' parties, and not of the mere agreement which led to the execution of the contract. In every view of the question, we think the-court were right in rejecting the prayer of the appellant.

The judgment of the court below instead of an absolute judgment, should have been a judgment de bonis intestatoris, si, non de bonis propriis.

This court according to the authority of the case of Duvall, vs. Wells, 4 Harr. & McHen. 163, and Fisher vs. State use Johnson, 1 H. & J. 416, might award a writ of diminution, so that the effect of the judgment, pending the writ of error, might be corrected below.

■ Without however resorting to this course, which would be-productive of delay, we shall proceed to allow an amendment-, of the judgment as was done in Ree vs. Morgan, 3 Term Rep. 350.

The amendment will accordingly be made, and the judgment Stand. JUDGMENT AFFIRMED.