The opinion of the Court was delivered by
Green, J.Notwithstanding the numerous assignments of error on this record, it is apparent that the ease presents but a single practical question, to wit, what was the consideration for which the judgment-note in question was given? The points, with relation to the judgment having been given to hinder, *502delay and defraud creditors, are inapplicable, because there was no evidence to support them, and it is therefore unnecessary to consider them. The plaintiffs’ tenth point should have been affirmed if there had been any evidence to show that the indebtedness of $400, due by Samuel Thom to James Clarkson, was. included as part of the'consideration of the judgment. The Court below left it to the jury to determine-this question, affirming the point unless the jury found that this indebtedness was not included in the note. The jury have found by their verdict that it was not included, and for this finding there was sufficient testimony in the case. The points in relation to the old indebtedness of the defendant to the plaintiff in the judgment, and as to its constituting part of the consideration thereof, were properly answered by referring the whole subject to the jury. Of course, whether it had been previously paid or yet remained, and whether it constituted any part of the consideration of the note in controversy, could only be questions of fact, and, as such, they were necessarily left to the jury. The only remaining question was, whether there was any actual consideration for the note other than those above indicated? None was proved, and, against the inference arising from the mere fact of the execution and delivery of the note, testimony was given which, if believed by the jury, was quite sufficient to show there was none. The only witness who was present at the execution of the note testified directly and positively that it was given reluctantly by the defendant at the solicitation of Mr. Clarkson, the plaintiff, and of Mrs. Thom, the defendant’s wife, without any consideration whatever, and upon the express statement by the plaintiff that it was “for no value received.” The witness details the circumstances, from which it appears that the defendant had been on a spree, and there was apprehension that he had been indorsing notes for strangers, and, in order to preserve a home for the defendant’s wife, he was induced to sign the note without any consideration from Clarkson. Samuel Melville, another witness, testified that the plaintiff, Clark-son, asked him to tell Mr. and Mrs. Thom to come out and get a large note he held against him, and also their will, which was in his possession, that he repeated this request several times, and in the course of the conversation told the witness that he held a large note against them for no value received. This occurred shortly before Clarkson’s death. The credibility of both these witnesses was left to the jury with proper instructions, and the jury have found by their verdict that there was nothing due to Clarkson on this j udgment. As there was no evidence that Clarkson furnished *503any money to Thom when the judgment-note was signed, or conveyed to him any property, real or personal, or had any settlement faith him at that time, it is quite apparent that the jury had sufficient warrant for their finding in the testimony. With the credibility of the witnesses we have nothing to do. That was exclusively for the jury. It was suggested that if the judgment-note was given for the benefit of the wife, the plaintiffs, as administrators of James Clark-son, could enforce it in any event,and were therefore entitled to a verdict and judgment, and could then be called upon by Mrs. Thom to account to her for the proceeds. Had the plaintiff's admitted the trust, and proposed to have the judgment marked to her use, there would have been much force in this suggestion. But instead of any such concession, the plaintiffs were endeavoring to enforce the judgment as the property of James Clarkson and for the benefit of his estate. This claim was in direct antagonism with any such trust, and presented the plain issue whether there was anythiug due to James Clarkson in his own right. That issue it was the clear right of the defendant to contest, and he could not be disqualified from making such contest upon the theory that his wife was the equitable owner of the judgment, unless the ownership was either asserted or conceded as a reply to his defence. Moreover, if the plaintiffs were allowed to recover a general verdict and judgment in this proceeding, it would be impossible to know whether it was because he owed the money to James Clarkson in his own right or as trustee for the defendant’s wife. In order to raise that question, a distinct issue should have been presented in the Court below, by the plaintiffs, so that there should be no confusion or uncertainty in the event of a recovery as to the right in which it might be had. As the issue was made up, Mrs. Thom was asserting no right as equitable owner of the judgment, nor were the plaintiffs asserting any such title. It follows, therefore, that the Court below was not in error in directing the jury, that if they found that the judgment was given for the benefit of Mrs. Thom, and the plaintiffs were seeking to divert it from that purpose and recover for the use of the estate, the verdict should be for the defendant.
Judgment affirmed.
Sharswood, C. J., dissents.