Fluker v. Henry's Adm'r

RICE, J. The giving of the note sued on by the defendant, “ in discharge of the balance remaining due on the original note”, changed the relation between him and J. G-. Dent & Co. On the original note, he was their surety ; but by giving his own note, “ in discharge” of it, he became their creditor. He cannot, in this suit, be regarded as their surety, or as entitled to make any defence which rests upon the existing relation of principal and surety. He is the principal, the sole principal, in the note sued on, and must be so treated in the present action. — Lyth v. Ault, 11 Eng. Law <fc Eq. R. 580. It may be conceded, that the evidence offered by the defendant and excluded by the court would have been admissible, in a suit against him, on the original note. — Evans v. Keeland, 9 Ala. 42 ; Lynch v. Bragg, 13 ib. 773. It may also be conceded, that the evidence should not have been excluded, if it tended to prove that the original note was void ; or that the note sued on was given merely as a renewal; or that it was without any consideration; or that its consideration had failed, either in whole or in part. — Bullock v. Ogburn, 13 Ala. 346 ; Holt v. Robinson, 21 ib. 106. But these concessions cannot help the defendant. There was a valid consideration for each note. There is no evidence of any failure of the consideration of the note sued on. If a defence, either total or partial, could have been made to the original note, in consequence of fraud in the sale of the negro for which it was given, or of the breach of the warranty of his soundness, tlie discharge of that note, by giving the note here sued on, destroys the right of the defendant to make that defence in this suit. There is no error in excluding the evidence which was excluded ; and the judgment is affirmed.