10 Ga. 214 | Ga. | 1851
By the Court.
delivering the opinion.
The answer, however, whilst it admits an injury, to one of the horses (Southerner,) states that it was a trifling injury, in one of his forefeet, received a few days before, in a race at Charleston, well known to the purchasers at the time of the sale, and admitted by them to betrifling and of no consequence, and that the horse afterwards ran several races, and won some of them. Upon these statements it assumes that this injury was patent, and was not intended to be, and is not in fact covered by the warranty. Upon this ground thus taken in the answer, it is claimed that Bullock was not liable over to Winter, upon the transfer of the Morrison & Harrison note, fora failure of consideration ; that Winter has no equity, and that the injunction ought to be dissolved. Whether according to the statements made in the answer, the injury to the horse Southerner, be a patent defect, which by the rules of law, applicable to this subject matter, is not covered by a general warranty, we have no occasion now to decide. The plaintiff in error, Bullock, admits in his answer, that he was notified that Morrison & Harrison had pleaded a partial failure of consideration to their note, in a suit brought against them by Winter, and that he aided to some extent, in resisting it. Then he did or he did not make this question. If he did, there was a judgment of the Court against him (for the defence prevailed) and it is res judicata', if he did not, being notified, it was his duty to make it, and cannot now profit by his laches. He has had his day in Court — he has been heard, or he might have been heard. The question as to failure of consideration, as to the character and extent of his warranty, is not now open. Winter is concluded by the judgment against him on the plea, and Bullock, being notified, is a privy in law with him, and is
By the judgment of the law, Winter has no right to collect one half of the note which he bought of Bullock. Bullock, by notice, being privy to that judgment, and now in the act of enforcing the draft upon Winter, which he received from him, in part payment for the note, Winter is entitled, in our judgment, to relief in a Court of Equity, against its enforcement. We consider the law as to the estoppel of Bullock, under these circumstances, to be well settled. A question has been made in the books whether he would not be concluded without notice. We do not hold that he would be, but being warned to appear and defend, we hold that he has had his day in Court, and is concluded. See this doctrine discussed in Brown vs. Chaney, 1 Kelly, 412, and the numerous authorities there cited.
Let the judgment be affirmed.