Marsh v. Consolidation Bank

The opinion of the court was delivered, by- Read, J. — The defence in this case was, that Isaac Murray, the maker of the note, was simply an accommodation drawer for the benefit of B. C. Brooker & Gov, the last endorsers, who probably had the note discounted at the Consolidation Bank and received the proceeds. If so, Brooker & Co. were the principals, and Isaac Murray Only a surety. The Consolidation Bank obtained judgments against the maker, the second endorser, and last endorsers B. C. Brooker & Co., and the bank immediately issued a ji. fa. on the last-mentioned judgment, and levied -on property of the firm sufficient to satisfy the claim with costs. Pending this seizure, George H. Roberts, with the senior member of the firm-of B. C. Brooker & Co., went to the attorney of the [512] bank, paid the amount, and the execution was stayed. If this money was the money of the firm, then it is clear that Isaac Murray was discharged as to all the world. William Marsh became the surety of Isaac Murray for stay of execution, and this scire facias was brought in the name of the Consolidation Bank for the use of George H. Roberts, who disclaimed all interest in the suit; and the case presents the singular spectacle of a legal and an equitable plaintiff, neither of whom have the slightest interest in the present controversy. It is certain that if John Murray and B. C. Brooker had been on the stand, their testimony would have terminated the case; but as they were not examined, we are obliged to look at the testimony admitted, and the evidence offered but excluded, and we think that all the specifications of error have been sustained, and the rejected testimony should have been received. If it had been admitted, there would really have been only one question of fact for the jury: Whether B. C. Brooker & Co. had or had not provided the money which was paid to the Consolidation Bank. If they had, the case was at an end. This conclusion proceeds upon the basis that the evidence would have supported the offers, and no contradictory testimony had been produced by the plaintiff. Judgment reversed, and venire de novo awarded.