Spence v. Barclay

COLLIER, C. J. In Brahan & Atwood v. Ragland, et al. 3 Stew. Rep. 247, and several subsequent decisions, it is held that the doctrine of contribution does not apply as between accommodation indorsers, unless there was an express or implied agreement to bear parts of the loss as joint sureties, in the event of the inability of the maker, or drawer to pay. The record in the present case does not show whether the parties were indorsers for value, but if necessary to indulge presumptions, such would be the natural inference. This, however, is immaterial, for in the absence of an express or implied agreement changing the liability of indorsers inter se, they will be bound to pay in the order in which their names appear on the paper ; and this, as we have seen, although they may have indorsed for the accommodation of the maker, or some other person. The proof ofthe genuineness of the signatures ofDouglass and the defendant was certainly quite sufficient to authorize the Court to allow the note indorsed by the parties, to go in evidence to the jury. The record of the judgment and proceedings at the suit of the Bank was competent evidence, and the recitals in the judgment entry, so far as they tended to make out the plaintiff’s case, were quite as satisfactory, as if the same facts were testified by witnesses examined in Court. It was not allowable for the defendant, after having acquiesced in the judgment and paid a part of it, and insisted upon the plaintiff’s paying the residue, in satisfaction of a joint execution against them, to object that the judgment was [584] obtained upon insufficient evidence, and thus put in litigation the facts concluded by it. In addition to the effect of the judgment, the conversations between the pgrties in respect to the execution while it was in the coroner’s hands, and'the agreement under which it was satisfied, would, even in an ordinary case, be admissible to show, that the defendant had been duly charged by notice of the maker’s default. The declaration states the making of the note, its indorsement, protest for non-payment and notice, and thence deduces the defends nt’s liability as indorser. A count is also added for money paid, laid out and expended. We are satisfied, that upon the proof, the instruction to the jury was correct, and that there is no error in refusing to give the charge prayed. The judgment is consequently affirmed.