
    
      John Ford vs. David Elkin.
    
    1. A judgment confessedas an indemnity for liabilities incurred by another, as indorser or security, is not void. It is good and legal, and at law may be enforced, whether the party assuming such liabilities has been compelled to pay them or not.
    2. If the defendant, in such case, pay the debt, to secure which the confession was taken, the plaintiff might be compelled, at law, to enter satisfaction.
    3. But, generally, the only remedy a creditor could have, would be in equity.
    4. There is neither reason nor authority in favor of the position that such a judgment should be postponed to subsequent bona fide judgment creditors.
    
      Before O’Neall, J. at Fairfield, Fall Term, 1843.
    This was a rule against the sheriff, to shew cause why he did not pay to the plaintiff, the debt and interst, by him collected in this case.
    He shewed for cause, 1st. That five or six of the negroes were sold under an indemnity, given by David Aiken. That Aiken was the purchaser, and had been sued for them.
    2d. That Aiken claimed the whole proceeds of the rest of the property, sold under a decree in chancery.
    3d. That Ailfen contended that the plaintiff’s debt was fraudulent.
    On the first ground, as to the negroes sold under Aiken’s indemnity, and purchased by Aiken, his Honor held that the sheriff was right in holding the proceeds of that sale, until the suit was decided.
    But there was an abundant fund in the hands of the sheriff, besides the sale of the negroes, to pay the plaintiff’s debt.
    The final decree in chancery, in the case of Aiken vs. Elkin, was junior to the plaintiff’s judgment.
    The allegation of fraud in the plaintiff’s judgment, was altogether unsupported.
    It appeared that John Ford, the plaintiff, was the security of Elkin, to the executors of Kincaid, and was his indorser in bank. To cover these liabilities and a small debt to the plaintiff, Elkin made his note to the plaintiff for the aggregate, and confessed a judgment upon it. The note to Kincaid’s estate was produced by Ford, as paid by him. The note in bank, he also alleged, he had paid. The sheriff, or Mr. Aiken made no shewing that he had not paid it.
    The counsel for the sheriff and Aiken, contended, that such a judgment as the plaintiff’s must be postponed. The presiding Judge thought otherwise, and made the rule absolute.
    The sheriff and Aiken appeal, on the ground :
    “Because the judgment of John Ford vs. David Elkin, is illegal and void, as to subsequent bonajide judgment creditors, and ought to be postponed, in payment to such creditors.”
    Clarke, for the motion. Black, contra.
   Curia, per

O’Neall, J.

This court concurs in the decision below.

It is altogether a mistake to suppose that a judgment confessed as an indemnity for liabilities incurred by another, as indorser or security, is void. It is good and legal, and at law, may be enforced without any inquiry whether the plaintiff has been compelled to pay his liabilities for the defendant or not. Indeed it may often be necessary that he should enforce the judgment before he does pay, to save himself from loss.

Such a judgment would be liable to no imputation of fraud, and could not be set aside at law. It might be, that if the defendant paid the debts, to secure which, the confession was given, the plaintiff might be compelled at law, to enter satisfaction. But, generally speaking, the only remedy which a creditor could have, would be in equity. That court, if the defendant had paid the debts, or if the plaintiff never could pay them, would, in the first case, enjoin the enforcement of the execution, and in the other instance, might order the judgment to stand as a security for the benefit of the creditors to whom the plaintiff was liable for the defendant.

There is neither reason nor authority in favor of the position that such a judgment should be postponed to subsequent bona fide judgment creditors. It might just as well be asked that a mortgage executed to secure a security, should be postponed.

The language of equity would be, in such a case, relieve the security, by paying the debt for which he is liable, and then your debtor’s property will be unincumbered and liable to your remedy. The,motion is dismissed.

O’Neall, Evans, Butler and Wardlaw, JJ. concurred.  