CASES AT LAW, DETERMINED IN THE COURT OF APPEALS OF SOUTH CAROLINA; AT COLUMBIA, JANUARY, 1833. JUDGES PRESENT HON. DAVID JOHNSON. HECTOR M'NEILL . ARCHIBALD M'DONALD, et al. Tried before Mr. Justice EARLE, at Chesterfield-Fall Term, 1832. Columbia, January, 1833. M'Neill V. M'Donald. A note trans becomes due, is equities which THIS was an action on a note drawn by the defendants, for $200, payable to A. M'Millan, or bearer, ferred after it dated 2d September, 1828, and due at three days after subject to all the date. By way of defence, the defendants tendered existed between evidence to show, that some time before the date of the original parthis note, one Neil M'Neill had purchased a tract of it expresses to be land from one Massay, and that A. M'Millan, the ved," its true payee of the note in question, had joined Neil Me- may be inquired Neill in a note for the purchase money, to be paid at a negotiable note ties;and although "for value recei consideration into. When a January, 1833 M Neill V. MDonald was given to the Columbia, future day. That this debt being unpaid, M'Millare became uneasy on account of his liability, and Neil M'Neill, to satisfy him, procured these defendants to give him the note on which this suit is brought, to indemnify him against any loss or liability, which he payee, to indem- might incur, on account of his securityship. Neil securityship to a M'Neill afterwards paid the note, to Massay; and upa debt, which on his request, M'Millan delivered to him the note the principal af in suit, after it became due; and he (Neil M'Neill) and the note is afterwards put it into circulation, and by that means due, the makers it came into the plaintiff's hands. nify him for his third person, for terwards pays, transferred after are not liable. The presiding Judge excluded the evidence on the ground that it went to vary the terms, and limit the operation of a note purporting a consideration, and absolute on its face, and as violating the rule that excludes parol evidence, to alter, vary, or add to a written contract. The Jury found, for the plaintiff; and the defendants appealed, and now moved for a new trial because the Court rejected this evidence. Johnson J. delivered the decision of the Court. The correctness of the rule on which the Court proceeded, is not questioned; but this case falls clearly within an exception, which has always obtained, or rather, it admits the application of a qualification of the rule which is universally allowed. The note in question. having been first transferred after it became due, it is subject to all the equities which existed between the original parties; and to enable us properly to understand it, we must regard this as a case between A. M'Millan, the payce, and the defendants, the makers. As, between these parties, the evidence offered was calculated to show, that although the note expresses to be for value received, the true consideration was the indemnity which it afforded the payee against his securityship, for Neil Neill to Massay, and that he had been indemnified by the payment of that debt.---- Columbia, January, 1833. M'Neill V. The case of Singleton v. Breman, State Rep. by Harper, 201, establishes very clearly, that the consideration of a note is examinable, though expressed to be for value received; and if it be without consideration, M Donald it is nudum pactum; and by the same rule, it is admissible to shew what the true consideration is. The case in hand is still more general; the expression, value received, does not point to any particular consideration; it might have consisted of money had and received, money lent, or goods sold and delivered, so far, as appears from the face of the note and proof; that it consisted of the one or the other, would not add to, vary or contradict the note itself, but is entirely consistent. with it, and shews that it was given as an indemnity, for that too, may be a good consideration. But the every day case of notes given for considerations, which have failed, as in cases where they are given for property which proves to be unsound, shows very clearly, that the consideration of a note expressed to be for value received, may be inquired into. We think, therefore, very clearly, that the evidence ought to have been admitted: for if, in truth, the note was given to M'Millan as an indemnity against his liability, as surety for Neil M'Neill to Massay, and Neil M'Neill paid that debt, the defendants are unquestionably not liable. Motion granted. Columbia, January, 1833 Eddy V. Smith. EDDY 2. SMITH. The sheriff had levied on two horses, by virtue of an execution, in this case, and kept them in his possession until the day of sale. On a rule against the sheriff to compel him to pay over the proceeds of the sale; Held, that what was a reasonable compensation to the sheriff for keeping the horses, was a question for the presiding judge to decide; and that 21 cents per diem was a reasonable and the customary allowance. Per MARTIN, J. Confirming the decision of Mr. Justice EARLE, at Marion, Fall Term, 1832. A contract between joint exe the estate, may HENRY BERRY, jr. v. JOHN TART. Tried before Mr. Justice EARLE, at Marion.-Fall Term, 1832. THIS was an action of Assumpsit on a note of the following tenor: "By the first day of January next, I do promise to cutors, concern- pay Henry Berry, as executor for the heirs of Right ing the funds of Bass, deceased, the sum of two hundred and thirtyhave a right seven Dollars forty-three cents, with interest from the first of January last, for value received of him, necessarily void. this, the 24th January, 1829. and legal consideration; consequently, it is not Where the defendant, an executor, gave his note to his co-executor for funds in his hands belonging to the estate: Held that it is recoverable, [Signed] JOHN TART." In the declaration, the plaintiff styled himself ex less there actly as described in the note, "to answer to Henry dant can shew Berry, as ex'or." &c. that he is in ad estate, and that vance with the The defendant was co-executor with the plaintiff the plaintiff had under the will of Bass, and had qualified as such at Funds ነበ his the same time, and had also acted as executor. The hands. |