Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-08
SUPREME COURT DECISIONS.
December Tenn - Nashville,
1870.
W. P. Hickerson, VS.. Roiguel L Co.
OPINION. Fix


to satisfy an execution from The Federal
Court against Rsyburn & Co, which he
had assumed to pay, applied to VIM. P.
Hickerson, then in Nashville, to become
his accommodation endorser on bill of
exchange for 50, 800, payable at thirty
days: saying that the Cashier of the Plan
ters' Bank had promised him to discount
it that day, if he presented bill properly
endorsed. Hickerson hesitated about en-
dorsipg, but finally consented, and en-
dersed the bill upon the express condi-
ton, that if the bill was not discounted
that day by the Planners Bank, that
She'd was either to return the bill or de-
stroy it. This occurred in the afternoon
and ON the next morning Hickerson left
for his home in Coffee coruty. She'd
presented the bill at the Plsnters' Bank
the same evening, but the cashier refused
to discount. Whereupon Shield went to
]. B. Clemments, United Stptes Marshal
for Middle Tennessee, informed him that
he had such bill, and told him the terms
and conditions on which d ''1erson had
endorsed it. He then proposed to Gem
ments who had the executions in favor of
Reignel & Co. against Rayburn & Co.,
which Shield had assumed TO satisfy, that
he would transfer to him as the agent of
Reignel s. Co. the bill of exchange, in
satisfaction of the executions. Glenn
ments consulted the counsel of Reignel s.
Co., who advised him to accept the prop
osition. Accordingly Clemments took the
bill of exchange, and entered UPON the
executions receipt in full satisfa ;tion.
The amount of the two executions was
about 50, 200, and Clemments agreed that
when the bill was collected he would re-
fund the excess to She'd.
The bill was dishOnOred at maturity
and suit brought thereon to the Septem-
Der term, 1860, against She'd and the two
endorsers, Hickerson and Eetell. The
endorsers made no defense, and permitted
Judgment TO be entered against them at
the appearance term, and thcreupon took
judgment by motion against She'd, and at
the May term, 1861, Reignel & Co. took
judgment against She'd on the bill.
No execution issued on this last-named
judgment until January, 1868, when one
was issued, and levied on tract of land
belonging to She'd, estimated to be worth
$4,000. After the levy on the land
She'd raid the amount of the
execution to the Sheriff of Coffee
county, who receiptec and satisfied the
execution. SHIELD therefore sold and con-
veyed the land and became insolvent.
When the sheriff rendered the money, re-
ceived on the execution, to the counsel of
Reignel s. Co., they refused TO receive it.
Whereupon they caused execution to is
sue against HickersOn on the judgment
agJinst him as endorser at the
term 1860.
The bill is filed by HickersOn to enjoin
the execution so issued.
The first question for determination, IS,
whether injustice was done to complain
ant, by the judgment rendered by the
Circuit Court at the September term,
1860. 1t appears that he made no de
fence, but permitted judgment TO be
made at the appearance term without OBJ
lection This is conclusive against his
application for relief, unless he had
good defence, and failed o make it, on
count of accident, or fraud or the action
of the opposite party, unmixed with neg
ligence or fault on his own part. KeaTy
VS.. Smith 8 Yerg., 1877.
The proof shows, that when C0mplaiG-
ant endorsed the bill, he did 20 upOo the
express condition, that if the Planters
bank did rot discount the bill on that
day, his liability as endorser was
to cease, and the bill was
either 10 be returned or destroyed.
1t is wholly immateria', whether COM
plainant knew the use which She'd pro-
posed to make of the money or not. He
was indorsing without consideration, and
for the accommodation cf Saeid; and had
the right to annex such terms and con-
ditions to his liability, as he saw proper.
Perkins VS.. Ament Head Ito. Bank Of
Tennessee VS.. johnson l Swan PIT.
1t is clear, that when the Planters
Bank refused to discount the bill, and the
day had expired during which it was to
be presented, the liability of complainant
was terminated. The only liability, which
could then be cres ted, must have arisen
from the tran fer of the bill, in the due
course of ira e to some innocent plTcha-
ser for vslue. But the proof shows, that
when She'd offered to transfer the bill TO
who was acting as the agent
Of Reignel It Co., in the collection of
heir execution, he informed him of the
.erms and conditions, which complain
ant had annexed 10 his Endorsement. 1t
follows, that ClemmeDts took the bill with
full notice, that She'd had no authority
70 use it for any purpose and in any way.
As Clemments was acting as the agent of
Reignel & Co., they would be affected
with the notice which their agent had.
But the proof further shows that the
Dill was taken by Reignel & Co., in pay
nent of claim which they had against
Rsyburn & Co., and which claim She'd
lad undertaken, by contract with Ray
1urn & Co., to pay. The bill, therefore,
vas received in payment Of pTe-exist-
ng debt, and was taken, subject to all the
EQUITIES and defenses which the indOrser
,0u'd lawfully set up against the liability
n the bands of She'd; s Hum. 1877; 2
Head, 27O; Mtigs' R., 155; l Head, SIT;
Hum, 81: Sneed, 443; Head, 178.
II follows, that If complainant had
made his defense in the suit at law, he
would have had the right to rely upon
he fraud prachced upon him by She'd,
n transferring the bill without authority,
md in violation of the terms and cond.-
ions of his Endorsement; and under the
aw, a verdict and judgment upon the
facts disclosed in the record, must have
5een rendered in favor of complainant.
The injustice of the Judgment against
him is thus made manifest.
But it is not enough that the
Judgment was unjust-it must also
appear by the proof, that complainant,
without negligence or fault upon his part,
was prevented by accident, fraud or the
action of the opposite party from making
bis defence, before he can entitle himself
% relief against the judgment. The ex-
,use on which he relies for allowing
Judgment to be taken without defence is,
hat at the time the judgment was rem
Tered against him, in Sept, 1860, he was
lnder the impression that the bill had
been discounted by the Planters Bank,
snd that he was bound by his endorse
nent. 1t was under this conviction that
ne permitted judgment 10 be taken at the
IL