JULY 1830 wood v. grounds of relief are different, and what is more material, the main grievance, the indorsement on the execution, assigning the interest to Turner, and the pressure of it has Brahan & Atsubsequently arisen. Turner, who seeks indemnity and remuneration as second indorser, by means of the assigned Ragland et al. execution, does not appear at any time to have denied, but that the note in question, and several prior notes for similar objects, and having the names of these complainants as indorsers, contained also indorsements in his name. Nor does he appear in any form or manner to have denied the genuineness of his signatures to this or the preceding notes, until six or seven years after their execution. He remained profoundly silent for nearly the same lapse of time, after it was mutually known to him and the complainants, that the notes bore his signature, and that the latter were deeply interested in its genuineness and his responsibility; his silence was cautiously maintained until after Bradford had fled the country. Moreover, at an early period after the execution of the note, it having been drawn payable only twenty days after its date, when sued as indorser, he simply pleaded non-assumpsit, and suffered judgment to be rendered against him, without presuming to deny his indorsement. It is true the record evidence of this recovery is not in the transcript, but it was, as appears from the written opinion of the Circuit Court, offered as evidence there, and rejected as being matter inter alios acta. The complainants' bill however charges the recovery to have been suffered in the manner stated, and Turner's answer admits it in general terms. Therefore if the facts be material, and I think they are, they must be assumed as true, or a certiorari should issue to bring up the record as a part of the evidence. There is not the slightest evidence or even averment, that the complainants ever consented to become first indorsers to this note, or ever admitted themselves to be such. On the contrary, it manifestly appears that Atwood, who signed the name of the firm, believed at the time, that he was binding them as second indorsers only; and that this was a reasonable and natural conclusion, from seeing the name of Turner previously indorsed, and from the prior transactions of a similar nature, between the same parties, and to which Turner had made no objection. It has not escaped me, that Turner, by his answer to the complainants' bill, denies generally that he knew any thing of the previous notes mentioned as having borne his sig JULY 1930. nature as indorser, or that he ever indorsed them, or the one in contest, or that he authorized any one to indorse Brahan & At- them for him, or that they were made with his knowledge or consent; or that he afterwards recognised them as valid Ragland et al. indorsements. But it must be observed that this answer wood v. was filed in October, 1827, and is the tirst intimation we have of any denial from him of the genuineness of his signatures, when the note in controversy fell due in December, 1819, and the suit thereon against him was instituted shortly thereafter. In aid of Turner's answer, it is admitted that he had furnished sufficient other proof, that the indorsement on the note is not in his hand writing. It is equally true, as an abstract proposition, that neither the appearance of a forged indorsement on the note, or any delusive expectations formed from the belief of its genuineness by another, at the time of giving his indorsement, can create any liability on the person whose name is thus indorsed, or affect the rights of a subsequent indorsee for a valuable consideration, and without notice of the fraud. Let it also be admitted that the judgment or verdict obtained by Ragland against Turner, is inadmissible as evidence in a suit between the latter and these complainants. Yet it by no means follows that any waiver by Turner of his defence against the indorsement, or any recognition either expressed or implied of his responsibility, whether in the defence of a suit against him or otherwise, does not bind him. Nor can I admit that the record shewing the nature of the suit against him and his plea, is not admissible evidence to shew his admission or recognition of his indorsement. Suppose instead of the plea of nonassumpsit, he had confessed judgment according to the note and indorsement, it would have been no less matter inter alios acta, yet doubtles the complainants would have been entitled to shew such admission of his liability as indorser, and that by the record. It fully appears from the complainants' bill and Turner's answer, and as it is understood by the record of the recovery against him by Ragland, that Turner in that suit declined availing himself of the only legal defence that could have been made, on the ground of the alleged forgery of his name, as either second or first indorser, and that then he had all the evidence of the fact, that he has had at any time since. If the indorsement was a forgery, and he had plenary evidence of the fact, his defence would have been no less available against Ragland than these complainants. And wood ▼. as the responsibility of the latter, depended ultimately on JULY 1830. the validity of Turner's indorsement, together with the solvency of Bradford, if the indorsement was spurious, Brahan & Atit was important that they should have had the earliest notice of it, that they might have sought redress against Ragland et al. Bradford. Who can say that with such notice, they would not have secured themselves? How is Turner's mysterious silence, relative to the alleged forgery to be accounted for? Did he fear that a denial of his indorsement at the proper time, or at any time during the seven years, would elicit proof that he had lent the use of his name to his friend, and that it had been so used to his prejudice? Was he unwilling to deny his indorsement, lest it should subject some one to the peril of forgery? Or did he seek to favor the complainants decision, and promise himself the gratification of suffering a recovery against himself, that he might prosecute recourse against the complainants who he knew, or had the best reasons to believe were only accommodation indorsers? In any view of the subject, it was an extraordinary and highly criminal silence. I conceive the circumstances to amount to a full recognition and adoption of his indorsement, sufficient to estop him in relation to all persons, from a subsequent denial of the indorsement. Then I must regard Turner as an indorser; and admitting that in equity, a subsequent indorsee for a valuable consideration, who has made satisfaction to his indorser, may have the benefit of cession of a judgment, obtained by the latter against a prior indorser; admitting also that the same may be done in the case of accommodation indorsers, where there is no agreement, express or implied to the contrary; yet I view this case as one essentially different from either. That these were accommodation indorsers is sufficiently evident. All the circumstances constituting Turner's admission, recognition or adoption of his indorsement, apply equally to the peculiarities of the case; to the note with his indorsement in the position of first indorser, and doubtless with a knowledge that the indorsement in his name had been first written. But Turner relies, among other things, on the fact that Bradford filled up the note, which had remained blank, till after the indorsement had been made, with the names of the com plainants, instead of himself, as payee; whereby it became necessary, to secure the benefit of both indorsements, that they should be filled up as though the first had been made from them to him, and that Ragland's attorney acted ac JULY 1830. 'cordingly. From these circumstances it cannot be inferBrahan & At- red that the complainants ever consented to incur a sepa wood v. a Page 174. b Page 562. rate liability as between the indorsers, or to be made first Ragland et al. indorser. The exact reverse of these facts is fully shewn to be the situation of the parties. The light most favorable to Turner, in which I think the subject can be viewed, is to regard him and the complainants as having strongly implied their consent to stand as co-sureties for Bradford, and that as between them the principle of contribution applies. I admit the true doctrine to be as held in 2 Littella and 4 Randolph, that in ordinary cases of indorsers, even for accommodation, where nothing is expressed or implied to the contrary, there is no right of contribution. That in signing as indorsers, they are presumed to know the law governing commercial transactions, and to have embarked their respective liabilities, subject only to the common law responsibility in relation to indorsers, and which is so far different from that of co-sureties, that the former are held "to have only bound themselves severally in succession, so that each may be a supplemental surety in respect to another." In support of this doctrine, the Supreme Court of Virginia and New York, and most of the American tribunals which have C 160. 14 Vesey adopted it, refer for authority to the case of Craythorne v. Swinburne. All the authorities however concur in the admission, that if from the particular circumstances of the transaction, an agreement among the indorsers can be inferred, that each should bear a part of the loss if any, as joint sureties, then they are to be regarded as such, and contribution must be allowed, at least in equity. The case referred to of Craythorne v. Swinburne, which has been often treated as a leading one, strongly inculcates this doctrine, and maintains that the intrinsic equity of the case, as between the indorsers should ever be regarded. The facts of that case could not involve much difficulty, yet the Chancellor went at length into the doctrine of liability between co-sureties, and of contribution, and I think admitted the principle for which I contend, and which would award contribution in a case like the present. He admitted the position that "equality is equity in red 4 John. Ch. spect to sureties." In the case of Campbell v. Mesier & Rep. 334. Demstan,d it is ruled that the doctrine of contribution is not so much founded on contract as on the principles of equity and justice. That where the interest is common, , the burden also should be common, and that this principle, JULY 1830. that equality of right requires equality of burden, has a more extensive and effectual operation in a court of equity Brahan & Atthan in a court of law. wood v. Hence I am of opinion, the decree should award con- Ragland et al. tribution between Turner and the complainants. JUDGE TAYLOR, not sitting. Decrce affirmed. FRIERSON AND SHORTRIDGE V. BLAKESLEY. 1. The statute allowing amendments in proceedings before justices, does FRIERSON made a note payable to Thomas English, or bearer, on which a suit was brought before a justice of the peace in Tuscaloosa, in the name of English, for the use of Ralpha Blakesley, and judgment by default was rendered for the plaintiff. Frierson appealed to the Circuit Court, and executed an appeal bond, with Shortridge as security, payable to "Thomas English, who sues for the use of Ralpha Blakesley." In the Circuit Court, a statement of the cause of action was filed in the name of English, for the use of Blakesly, as in the warrant. Frierson pleaded in abatement, that English was dead at the time of the commencement of the suit, and to this plea, the plaintiff demurred. The cause came on for trial at March term, 1829, and before the Court pronounced judgment on the demurrer, the plaintiff asked leave to amend his statement or declaration, by striking out the name of English, and inserting in lieu thereof, that of Blakesley as plaintiff, with an averment that he was bearer of the note. The defendant excepted to the decision of the Court, allowing the amendment; and refusing to withdraw the plea in abatement and to plead over, judgment was rendered for the plaintiff against him and his security in the appeal bond. The errors assigned by Frierson and Shortridge, are 1st. that the Court erred in allowing the amendment; and 2d. in rendering judgment against the security in the appeal bond. |