Adm'r of Gee v. Williamson ex rel. Nicholson

'Ey Mr. Justice Thornton : This cause was once before brought up by writ of error to this court; and was reversed and remanded.a The declaration contains, in addition to the common counts in assumpsit, one upon a writing of the intestate of the plaintiff in error, described in said count as an agreement or writing, dated the 14th of March, 1821, under his hand, acknowledging that he had received of the defendant in error, Williamson, the sum of eleven hundred dollars, which was the full amount due by said Williamson in the St. Stephens Bank, which said sum of eleven hundred dollars, the said intestate, in the aforesaid certaiti writing or agreement, undertook and promised said Williamson to pay, into the St. Stephens Bank, as the several instalments of the said eleven hundred dollars should become due. This special count concludes with the breach — “ Yet the said Joseph Gee, (the plaintiff’s intestate) not regarding his promise and assumption so by him made as aforesaid, has not paid the said sum of eleven hundred dollars into the St. Stephens Bank, as the several instalments in said Bank, on that sum, fell due,” &c. The error assigned is, that the court erred, as stated in the bill of exceptions. Upon examining the bill of exceptions, we find two matters excepted to. First, the admission of a record of the Circuit Court of Washington county, of proceedings had in that court in favor of the Tombeckbee Bank, which discloses a judgment had against the cestui que use in this action, on a note for nine hundred dollars, payable to the said institution, dated on the 23d day of March, 1821, and signed by J. W. Williamson, Joseph Gee, and said Theophilus Nicholson. The exemplification further shovvs, that on this judgment an execution issued against all the said obligors, which is returned by the sheriff, “ satisfied,” generally, without ^specifying who paid , it. The bill of exceptions states this ground of error thus— “ On the trial of this cause, the plaintiff offered in evidence, the exemplification annexed and marked A, to prove a default by the defendant’s testator, in his contract as declared ; [320] to which the defendant objected, and the court admitted the -” If the just import of this language is, that that the record offered constitutes proof of a default in performance of his contract, by the intestate, (which is not a very strained construction) there can be no doubt that the exception was well taken; for the defendant’s intestate, was no party to to those proceedings, and should not be concluded by them, as the matter of his performanceof hiscontract, even though they Were had, upon the same debt to the Bank, which his contract had bound him to discharge. But not preceded by, or at least not accompanied by any explanatory testimony, this record was not only no evidence of a default, but was wholly inadmissi-as any evidence at all. The contract declared on, is of 14th March, 1821, and binds the defendant’s intestate to apply a certain sum of money to the discharge of that amount} then due by the said Williamson to the St. Stephens Bank, the several instalments thereof may become due. Now note to the Bank, which is the foundation of the record proceedings admitted as testimony, is the note of the said Williamson, Nicholson and intestate, for the sum of nine hundred dollars, dated the 28th of March, 1821, and payable ninety days thereafter. For this cause, without more, the judgment should be reversed. As however, the matter of the other exception, touching the effect of the record designated B. in the bill of exceptions} may be agitated again, in any new trial which may take place, we feel called upon to decide in relation to it also. This record is voluminous, but á short statement of its-prominent features will suffice. It appears from the exemplification, that some time before the institution of this ac_ tion, Williamson, the defendant in error, had assigned, to the intestate Gee, a promissory note upon one Shaw.' Judgment being had thereon at common law, Shaw filed a bill in equity, praying an injunction, which was granted also, before the issuance of the writ in the cause before, us. This bill,' which made both Williamson and the intestate Gee, parties [321] defendants, sought-relief on the ground alleged of fraud in the consideration of said note, practiced by the said Williamson, occasioning a failure thoieof. After many things done -in the progress of this chancery cause, which ere deemed unnecessary to be noticed, a final decree was pronounced in April, L825; which, (after reciting, rf*,--; hi conformity tv orders theretofore made, the civ.', r t 3 !, >.»: rcr:? as to Williamson, on the bill, auswv «••>.* vm ««.st'mony,) perpetuated the injunction, and d.u roc.;'! she wb: ¡-; nu.r', Williamson. The defendant in the cowi b hv, ij.*« record, under the pica of set off; a:;. f >e r, w .. ckaiged .'V-jury, that it was necessary for him “tog v.;, . a a,.u'i notice to the plaintiff, to fix Ids liability as ; sd- ; • : Ws there was a failure of the consideration of a v-d-i-d-facts, nor either of them, could bo pro-red by >: * \ - »./ •--< plification” — which charge is assigned for err-,.-.. . This cause having on a former occasion boon n. -fimo tins court, it behooves us to ex ami ;e, what principios ws’se theft settled ; for it is well estah'rshed, that whatever has been once stabiished in this court, between the sumo pasties, in the same case, continues'to be the law of the case, whether orthodox or not, so long, as tiro facts, of which such legal principles were predicated, continue to be the facts of liso case. We are not authorised to presumo that ibis record i.i not the same which was offered on the forraor trial. W« will not suppose that there were two of perfect similitude, and that this Is that other, and not the one formerly attempted to be used under the plea of set off. Then as l apprehend, the effect of this very record has been settled by the former opinion of this court; so far at least, as to conclude one of the grounds charged by the court, as not proved by the exemplification — -that is, the failure of consideration. Bat if the former opinion should be considered as only settling the admissibility of this proceeding, notwithstanding that its admissibility is deduced in that opinion, mainly, from a consid« [322] ration of its effect; yet I would consider the charge to be er~ ' roneous. . . Without proof, that the terms of this assignment were such as to prevent it, I think a right of action accrued to the intestate, Gee, immediately upon the transfer of the note upon Shaw ; for at that very time, the consideration of the assignment had failed, and a liability arose, to the extent at least, to which the transferred note was rendered void by the fraud of Williamson. It is true that record evidence did riot then exist of this failure of consideration ; but the doctrine on this head, is not ( that nothing shall be. used as a setoff, the proof of which transpires after action 'brought, but that the right to set off as a debt due only, shall have been acquired before that time. Now this note upon Shaw had been assigned, and its collection enjoined by the fiat of a chancellor, prior to the institution of the present action; arid its consideration had also failed, though the conclusive evidence of that fact, which this record discloses, was not their in existence. As to the demand and notice, it is only suggested in the charge as aa alternative requisition, admitted very properly to he 'unnecessary where failure of consideration appears. The payee of a note, indorsing it, is like the drawer of. a bill of exchange, and the maker like the drawee. Now, want of funds, or au- /' 'thority to draw, supersedes demand and notice. • Let the judgment be reversed, and the cause remanded. Footnotes [a] 2 Stew. 512.