Kirksey v. Bates

ORMOND, J. — ‘The’ judicial attachment which issued in this ease, was directed to the' sheriff, and commanded him to attach so much of the property of John M.C. Kirksey, John Kirksey, and W. W. Thompson, as should be of value sufficient to satisfy the debt and costs, according to the complaint; to which he made the following return: “By virtue of this writ, I have levied upon, and taken four'negroes, viz: Cam, Jack, Kit, and Sol, and the same replevied by a bond, given by the defendant and James jGoo’dwyn.” It is insisted that this return, in- connection with the replevin bond, shows that the writ was executed on the property of one of the defendants only, and that such an execution of the writ will not bring all the defendants into court. We are of the opinion, that the replevin bond is no part of the record, and cannot be looked to in the investigation of this question; and it is, therefore, unnecessary to' inquire whether one defendant could not execute a bond for all. Looking to the return then, as the only source of information of the acts of the sheriff, it is clear that the writ was properly executed. [309] The mandate of the writ was to take the property of all the defendants, and he returns, that, by virtue of that authority, he levied on five negroes. If this return is false, it cannot be questioned in this collateral way. His declaration must be accredited; and if untrue, he will be accountable to the party aggrieved. It is in this view quite unimportant, whether the property was replevied by one, or all of the defendants ; or whether replevied at all or not : as it was the execution of the attachment which gave the court jurisdiction, and this right having attached, it will not be defeated even if the property was permitted by the sheriff, to be improperly replevied. It is objected that Robertson could not state the object he had i,n sending Tims up the country, as his agent, nor the purposes for which he received the note sued on in this case. Robertson, it appears, was a commission.merchant, in Mobile, and the factor of John M. C, Kirksey; and on the trial, deposed that, he sent one Tims, his clerk, up the country to procure from his customers, who were indebted to him, payment in money, cotton, or paper, which he could use; that Tims returned with the note sued on in this case, which he received from the agent, in place of money or cotton as business paper, and in payment, and credited it accordingly in tbe'aeeount current. We can perceive no objection to this testimony. There could certainly be no objection to his stating the object of sending Tims up the country, for this was merely proof of the character of his agency; and this Robertson, was certainly, as competent to prove as Tims, the objection arising from his interest having, been removed. The agent would certainly, be no better acquainted with the character of his agency, than the principal who gave him the power to act. From the nature of the thing it must rest equally in the knowledge of both; and either would be competent to prove it. It was also, competent for him to state in what character he received the note — this is, strickly speaking, an act; he says, he received it as business paper in payment, and accordingly, credited it on the account current. It is true that, If it were [310] important to consider whether the note thus received, was “ accommodation” or “ business paper” the act of Robertson could not change its character ; but we are not able to perceive from the record, that, this question could exert any influence in the cause. Without now stopping to inquire whether, under the circumstances of this case, the plaintiff in error, would be benefitted by considering the note as “ country accommodation paper,” that question was, by the court, left to the jury, and they were told that, if the note was of that character, the plaintiff below could not recover — so that it appears the plaintiff in error, has had the full benefit of the question. But there is a point of view in which there can be no doubt the evidence was properly received. The account current rendered by Robertson to J. M. C, Kirksey, in which the note was entered as paid, Was offered in evidence by the defendants below as proof of payment. The items of an account, or a receipt for the payment of a sum of money, do not come within the rule, that written testimony cannot be contradicted, or explained by parol proof; or rather they form an exception to the general rule; when, therefore, this account was offered, as proof of payment, so as to discharge the sureties, it was competent for proof to be introduced, showing the light in which the note was considered when received, and all other facts and circumstances which would establish the truth of the case, and explain the meaning of the entry of payment in the first instance, and the subsequent charge, when the money was paid to the bank, on the maturity of the note, by Robertson. It is unnecessary, as already incidentally stated, to enter upon the enquiry as to the difference, if any exists, between the rights of sureties, to accommodation or business paper, handed to a creditor, either' in payment of a precedent debt, or for the purpose of raising money in bank to pay the debt, and whether, as is insisted in this case, the sureties are liable only in the event that the note is discounted by the bank; as the jury were expressly told by the court, in this case, “that if tfiey believed the note was executed as accommodation- paper, for the benefit of Kirk [311] sev, that then the plaintiff could not recover.” This opinion it is not necessary to revise, for if erroneous, it was an error in favor of the defendant. It remains only to consider, whether the note was extinguished by the payment by Robertson, with his own funds, at its maturity, to the Bank. The question is thus propounded to the jury, that if the note injquestion was executed by the parties, as business paper, in payment of a debt due to Robertson, or to enable Robertson to raise money in bank, to pay the debts, orto meet the engagements of John M. C. Kirksey to himself, that his payment of the note at maturity, by himself, did not extinguish it, if paid with his own funds, and -to protect his own credit. The note in this case was endorsed by Robertson, and discounted at the bank; at its maturity, the makers of the note not having provided funds for its payment, Robertson was compelled to take it up with his own funds, and to protect his own credit; and afterwards endorsed it to the plaintiffs below. This was no extinguishment of the note. Until a bill or note, has been paid by the maker or acceptor, it has not discharged its functions, and may be re-issued, after it is due and after it has been paid by an endorser. See Byles on Bills of Exchange 97, and Callow v. Lawrence; 3 Mauel & Selwyn, 97. The discount of the note by the bank, is in effect, nothing more, so far as this question is concerned, than a borrowing by Robertson, of the amount due on it, by a pledge of the note with his guaranty.; and as it could have been endorsed before such a transaction, it is manifest it could be afterwards. Such would be the decision on principle, and such it is on authority. The payment by Robertson, was not a payment of the note, but a return of the money advanced on his endorsement. There was no error in the judgment of the Court, and it is therefore affirmed.