Carson v. Coulter

The opinion of the court was delivered by Woodward, J. — We answer the first error assigned, as a similar objection was answered in Dennison v. Leech, 9 Barr, 165, by saying, the court might have opened the judgment on terms, and perhaps they ought to have done so, but having-thought proper to adopt a different course, by opening the judgment without conditions, the burden of proof was on the plaintiffs. Under such an order, the judgment remains as security for whatever may be found due, but in all other respects, the trial must be had as if no judgment had been entered. The court gave the plaintiffs all the benefit of the judgment they were entitled to claim. The second error was not pressed,' and there was no ground for it. The other assignments of error relate to the charge. The judgment had been entered on a bond given by Henry Coulter and Samuel E. Dale, partners under the firm of H. Coulter & Co., to Carson & McKnight, “for any moneys they, the said Carson & McKnight, may become, or are now liable for, or on account of the said H. Coulter & Co., by reason of accommodation, acceptances, endorsements, or otherwise.” The judgment was opened, and the plaintiffs put to the showing of what moneys they had become liable for, in accordance with the terms of the bond. That they were not prejudiced by what the court said on the subject of collusion and fraud, is shown by the verdict, which found for them the amount of the Plumer note, the only liability proved to have been incurred for H. Coulter & Co. Then, in regard to the other claims, the court submitted to the jury to find whether they were not contracted after the dissolution of the firm of Coulter & Dale, and knowledge of it by Oarson & McKnight, and if they were, as is found, they cer [125] tainly do not come within the terms of the indemnity. Whether Carson & McKnight became liable for these claims on the credit of the one or the other of the partners, they could not have trusted the firm, if they knew it had ceased to exist, and therefore had no pretence of right to use this firm judgment, for their protection as against other creditors. As to the liabilities endorsed on the execution, of which no proof was offered, the court were unquestionably right in directing their disallowance. It appears to us that the jury were instructed to allow everything which fell within the terms of the indemnity, and to reject whatever was outside, and in this we perceive no error, and accordingly affirm the judgment.