Dendy v. Gamble & Copeland

Bleckley, Judge. 1. The plea contained much irrelevant matter. It entered into a lengthy course of details to show that the account for which the note was given was the sole and separate debt of the principal. The note itself implies that, for it is signed by one of the makers as principal and the other as surety. The pertinent allegations of the plea were that, on being requested by the plaintiffs to sign a note jointly with the principal for the amount of the account, the surety declined to do so, “ but said, at the same time, that he would sign the note as security, merely to encourage said Davis to pay it, and that said Gamble & Copeland should look to said 436 Davis alone.to pay it. Subsequently . . . Gamble & Copeland sent tbe said Davis witb the note for him to sign, and he signed it, simply as aforesaid; . . . and it was well understood -by said plaintiffs and this defendant, as aforesaid, that the respondent was not to be liable on said note.” The note, however, is absolute and unconditional. It is an express contract, on the part of both principal and surety, to pay a sum of money on or before a given day, less than a month after its date. When a man’s real contract is not to pay, what sense or reason is there in signing a written contract that he will pay ? To allow such a defense as this to be effective would be to overthrow the most trustworthy monuments of the engagements of men to men. What security would the most solemn writings any longer afford? In striking the plea, on demurrer, the court made the only proper disposition of it. See Mansfield vs. Barber, (this term,) and cases therein cited. 2. It is suggested in the brief of Counsel, that it was certainly error to strike the whole answer, as it embraced a plea of the general issue, as well as a special plea. But the “ not indebted,” with which the answer set out was not a separate plea, but a part of the special plea itself. The two parts were connected by language which plainly imported that the particular facts narrated, were intended to stand for premises from which the conclusion of “ not indebted” was supposed to follow. There was one plea only, not two. Judgment affirmed.