Milledge v. Gardner , 29 Ga. 700 ( 1860 )

— Stephens J.

By the Court.

delivering the opinion.

[1.] The first question is, whether the statutory bar applicable to this action is twenty years, the period applicable to contracts under seal, or six years, the period applicable to written contracts not under seal; and this question depends upon the further one, whether this endorsement makes a sealed contract or not. The presiding Judge held, that it did not, but we think it does. The paper is assignable by endorsement under our Judiciary Act of 1799. Our Act of 1826, Cobb’s Dig. page 494, gives the endorser of assignable paper, the privilege of defining his liability in his endorsement, but fixes a statutory liability in the absence of an expressed one. The endorsement in this case, is the simplest possible. It does not express nor hint any liability at all. It is a simple transfer of the paper, signed by Mr. Gardner;, the defendant. It is then a clear case where the statute fixes the liability. The statute enacts that “ whenever any person whatever endorses a promissory note or other instrument, he shall be held, taken, and considered as security to the same, and be in all respects bound as security, until said promissory note or other instrument is paid off and discharged.55 Remarking that the liability to which this statute relates, is the liability of an endorser to the holder, and not perhaps the liability of endorsers among themselves, I think it is exactly that of a security. An endorsement which does not define the liability to be created by it, is, under this statute, so far as the holder is concerned, simply a mode of signing the paper as security. Now this endorsement has no seal nor scroll attached to it, but the instrument to which it serves as a signature as security, is a sealed instrument. The intention expressed in the body of it, that it shall be a sealed instrument, makes it one under our Act of 1838, without any seal or any scroll attached to any one of the signatures to it. Whoever signed it, whether as principal or as security or as endorser, and whether with or without a seal or scroll attached to his signature, signed a paper which by its own terms was a sealed instrument under the statute. The endorsement expressing no contract in itself, accedes to the contract which is expressed in the paper, and that is a specialty contract. It does this, if it does anything. The endorsement then created a specialty contract, and the statutory bar applicable to it is twenty years instead of six years.

[2.] Was the set-off as pleaded a good one originally, and if so, what is the statutory bar applicable to that ? The case stated by the plea, is that Mr. Gardner, the defendant, had paid off a judgment obtained against him as endorser on a note whereon judgments had likewise been obtained against Mr. Milledge, as maker, and Mrs. Ann Milledge, as a subsequent endorser, and the plea set out all these judgments as a description to identify the contract on which Mr. Gardner had paid money for the use of Mr. Milledge. We cannot see any reason to doubt that the plea states a clear matter of set-off. Nor do we think it is barred by the statute of. limitations. We think it is a debt due by judgment under our statute giving endorsers and securities the control of executions which they may pay off, for reimbursement, out of the principal. It was insisted that the judgment was dormant. •So it was, but it was not dead. It only slept, and could have •been waked, and new vigor infused into it. The money expressed in it, was still a debt due on judgment, and the statutory bar applicable to the debt was twenty years. It was insisted again that the plea did not show that Mr. Gardner ■had control of the judgment, because it did not allege that he had paid the cost due on it, and obtained an order of Court .giving him control in the manner prescribed by statute. It is immaterial to this purpose, whether Mr. Gardner had control of the judgment or not. He surely had a right, at. the very time when Mr. Milledge brought this suit against him, to pay off the costs and get an order giving him control of the judgment, and then to revive the judgment and make Mr. Milledge refund to him every dollar due on it. That is ■to say, he pleaded a cross debt which he had the means of forcing Mr. Milledge to pay, and which therefore was not, and could not be barred.

Judgment reversed.