Branch Bank at Decatur v. Lanier

COLLIER, C. J.

— The mere fact of substituting a note, forged as to one of the supposed makers, for one which was genuine, and made by all who purport to have subscribed the former, will not, of itself, amount to a payment of the original note. Whether, if the party whose name was forged, was ignorant of the fact, and was a surety, and upon the supposition that his liability was discharged, omitted to take steps to hasten the payment of the debt, or for his own indemnification, he might not avail himself of these facts as a defence, we need not inquire.

Assuming that the substituted note was ineffectual for the purpose stated, and we think it clear that it cannot prevent the operation of the statute of limitations upon the first note, in favor of the defendant, in the present case. This proposition cannot be better illustrated than by a statement of the facts. The defendant, with two others, made a note, on the S3d of February, 1837, for the payment of a sum of money to the plaintiff, ninety days after date; for the purpose of getting time to pay this note, another is offered to, and accepted by, the plaintiff, with the name of the defendant and the two other persons as makers. But the latter note, as it respects the defendant, is admitted to be a forgery. The statute began to run from the time the first note matured, and as the defendant did nothing to arrest its course, it continued until the bar became complete. To hold otherwise, would be to determine that a defendant might be affected by the act of a third person, to which he was not a party, and 'that he might be thus deprived of a defence which was provided by statute.

The plaintiff’s counsel has attempted to bring this case within the statute, which authorizes a party to bring a suit within twelve months after a judgment obtained by him has been arrested or reversed, although the act which prescribes a limitation to the right to sue, perfected a'bar after the first action was commenced. That statute applies where the plaintiff recovered a verdict or judgment, and not where the defendant made good his defence before the jury; consequently it cannot, by the application of the most liberal rules of construction, be invoked to aid the plaintiff. The case of Cummins v. Colgin, 3 Porter’s Rep. 393, which has been cited to sustain the argument upon this point, instead of being favorable, is rather adverse to the plaintiff.

The consequence is, that the judgment must be affirmed.