28 Mo. 87 | Mo. | 1859
delivered the opinion of the court.
It is sufficiently averred that the judgment before the justice was procured by fraud, which vitiated it, and that the defendant, after he had pocketed the ill-gotten fruits of his fraud, gloried in his shame. The payment of the judgment under the circumstances stated in the petition was not voluntary, and a satisfactory reason is given why an appeal was not asked or taken in time.
The statute of frauds has not changed the common law mode of declaring, and it was not necessary to have stated that the guaranty was in writing. (2 Saund. Pl. & Ev. 126.) The right however of the plaintiff to recover back the money received by the defendant on the execution did not depend on the question whether he could have recovered on his original demand before the justice ; for, admitting that the plaintiff could not have maintained his action, that fact gave the defendant no right to a fraudulent judgment on his set-off.
If the averments in the petition are sustained by the proof on the trial, and it is shown that the plaintiff properly made the payment on the guaranty of a debt due by the defendant, he will be entitled to recover the sum so paid; and the defendant should also be compelled to restore the amount received on his execution.
The demurrer was improperly sustained and the judgment will be reversed and the cause remanded ;