Whitlock v. Stewart

13 Ala. 790 | Ala. | 1848

CHILTON, J.

We think the charge given by the court as respects the liability of Heard on the note, manifestly erroneous.

The contract by which the plaintiff parted with the note, as well as the contract by which the holder acquired it, being void by the statute, (Clay’s Dig. 257, § 1; lb. 434, § 17,) Heard, who had received notice of these facts, was under no obligation to pay the new note, and, if after notice, he had made voluntary payments upon the note, such payments-would have created no charge upon the property pledged for his indemnity. If the defendant in error (Heard) was under no obligation to extinguish the original note, the note subsequently given is wholly without consideration, and cannot be recovered. Yet, having been induced by the laches of plaintiff to give the note, he should be bound to indemnify him against the expense of defending against it. So, while we regard the charge given as erroneous, we think the chárge asked was also liable to objection, as it assumes that the plaintiff is not entitled to any indemnity.

As to the other charges given by the court, if the bill of exceptions contains all the proof, they were clearly erroneous, as in that event they would be abstract; but we are not allowed to say that there might not be a conceivable state of case which would justify them, and as there may have been proof not set out in the record, which does not purport to contain the whole proofs, it is unnecessary to give an opinion upon them as abstract propositions of law.

For the error we have noticed in the charge given, the judgment is reversed, and the cause remanded.