McKeagg v. Collehan

CHILTON, J. — The indorsement of the sheriff upon the execution was not a return. The writ commanded him to make the money specified in the execution, and the law confers upon him no authority thus to adjust the rights of the parties. There was, then, no such entry of satisfaction as would prevent the issuance of an alias fi. fa. This Was done, and the defendant in the judgment became the actor to have it satisfied, by virtue of his receipt which he had obtained from the plaintiff. He undertakes to show to the court that the demand reduced to judgment, had been fully paid off. Now, if we admit the truth of the first plea, (and the demurrer does admit it to be true,) to allow the receipt given by the plaintiff in execution to have the effect of a satisfaction, we must either affirm the doctrine that its consideration cannot be inquired into, or, that having been obtained in consideration of the sale of a horse, falsely represented and warranted to be sound, when in fact he was wholly worthless by reason of disease, which disease was known to the seller, and, as the plea asserts, which horse', so diseased, was “ wilfully, fraudulently and corruptly” imposed upon the plaintiff in execution, we must regard said receipt as a satisfaction in 830 full of sáid execution. We cannot give our sanction for a moment to either proposition. A receipt, though it be in full of all demands, is subject to explanation. If fraudulently obtained, or without consideration, it is inoperative and cannot be set up to defeat the plaintiff's right of recovery. The horse being wholly worthless, it was not incumbent on the plaintiff to aver that he returned, or offered to return him. These are familiar principles of law, and are'so consonant with justice and common sense, as to render the citation of authorities unnecessary. The circuit court erred in sustaining the demurrer to the first plea, which though not very formal, at the same time substantially shows, that fraud and imposition in obtaining the receipt relied upon as a satisfaction renders it nugatory and void. The second plea is bad, as stating a legal conclusion, without setting out the facts from which such conclusion arises. For the error of the circuit court in sustaining the demurrer to the first plea, its judgment is reversed, and the cause is remanded.