
    
      Wm. Lewis, Ordinary, and adm'r. of John J. Pitts, v. James P. Bell.
    
    In February, 1843, P. confessed a judgment to B. for $300. B. soon after transferred this judgment to G-. for value received, and, with the defendant as his surety, gave a bond to indemnify P. for the judgment so assigned. Subsequently P. took of B. a receipt in full against the judgment, as if B. still held it, and P. gave B. a receipt not under seal agamsthis and defendant’s bond. After the death of P., G-. the assignee, collected the amount of the judgment from his administrator. The administrator then sued defendant upon the bond, tp recover the indemnity promised, and he pleaded in bar the receipt which P. had given against it to B. and himself, — held, that the receipt was worthless, and nothing more than amere form.
    Such circumstances as would lead a Court of Equity — as fraud, mistake or surprise-may be shown, at law, to destroy the effect ofa receipt.
    Defendant pleaded the receipt of the obligee in discharge of the bond sued upon: To this plea in bar the plaintiff demurred, and the Circuit Court overruled the demurrer. On appeal by defendant, the Court held, that the overruling of plaintiff’s demuvrer was an error; but refused a new trial, because the plaintiff had been permitted to answer over to the fact of the receipt, which placed the defendant in his proper position under the receipt, and took nothing from . his rights.
    It is always allowable for the appellee to show that the final result and consequence of an error against himself, have eventuated in no wrong to the rights of the appellantj and he, therefore, in such a case, has no cause of complaint.
    
      Before Richardson, J. at Sumter, Fall Term, 1848.
    This was an action of debt on bond, given to plaintiff’s intestate by one Wm. H. Bowen and the defendant. The bond was dated .the 15th day of April, 1843, and was conditioned that the said Bowen should pay “ unto the owner, assignee or holder of a judgment and execution, William H. Bowen vs. John J. Pitts, dated on or about the tenth day of February, 1843, or satisfy the same so that the said John J., Pitts shall be released from the payment of the said judgment, on or before the first day of November next, said judgment being for the amount of $300” &e.
    Endorsed upon the bond were these words “ In case the condition of the within bond is not complied with, we do promise to confess judgment to John J. Pitts on the within bond on the 1st November next, to substitute in place of the judgment against the said John J. Pitts,” (Signed,) “ Wm. H. Bowen and Jas. P. Bell.”
    The plaintiff declared upon the penalty, ($600,00) and the defendant pleaded the general issue and various pleas in bar; accord and satisfaction, discharge of the principal by the obligee — payment—discharge of the defendant, as surety. The seventh plea set forth as a discharge of the defendant, an instrument of writing in these words, to wit:
    “Received, February 27, 1846, of W. H. Bowen his receipt in full for the judgment in his favor against me for three hundred dollars, and I hereby discharge him from the bond he gave to mé, with James P. Beil as security, for the satisfaction of said judgment; the said bond is lost or mislaid; this receipt discharges them from the said bond.
    (Signed,) “ John J. Pitts.” To this plea the plaintiff filed a general demurrer, which on argument, was overruled, and leave given the plaintiff to file a replication. Issue was joined; fraud and covin in obtaining the said receipt, being alleged by the replications.
    The execution of the bond was proved. The plaintiff offered in evidence the Fi. Fa., referred to in the condition, which was lodged 13 February, 1843, and assigned to Ales-ter Garden, Esq., on the day the bond was given, in part payment of a negro sold by him. Bowen had conducted the negotiation for the purchase of the negro, but into whose possession he went on the sale, did not appear; tho’ Bell subsequently sold him in Charleston. All the parties knew that jU(jgment debt of Pitts to Bowen had been transferred to ' Garden. On the 23d November, 1843, the sheriff levied on £ye negroes 0f pitts under the Fi. Fa., which, however, was not paid until 2d March, 1847, and after the death of Pitts. It was in proof that Pitts, when drunk, might be practised on, but when sober was a man of business — that he was very intemperate, but yet a man of substance. Suit was commenced 8 March, 1847. Wm. H. Bowen was examined by commission'for the plaintiff, and testified that Pitts gave him a receipt about the 27 February, 1846, against the bond the witness gave to Pitts, with the defendant as surety — that Pitts called at witness’s house and proposed that if witness would give him a receipt in full against the judgment above alluded to, he, Pitts, would give a receipt against the bond sued on; that Pitts told witness the bond was lost or mislaid, else it should be given up; that a receipt against the bond was given by Pitts ; that at the date of the bond the defendant knew Alester Garden, Esq., was the owner of the execution ; that witness transferred the judgment to Garden in part payment of a negro pnrchased by Bell from Garden.
    Bowen further testified that when he gave Bell Pitts’ receipt, witness told Bell of Pitts’ proposition, and that witness’ reason for acceding to it was that it would give, witness “ time to realise the amount oí the judgment vs. J. J. Pitts out of a demand witness claimed and then in suit against Wm. G. Richardson, late sheriff” — that Bell knew nothing of the arrangement or receipt till witness gave it to him, soon after witness received it from Pitts; that Pitts was sober at the time he gave the receipt; that when the receipts were passed Pitts said his lawyer had told him that witness’ receipt would be good against the judgment; that witness was the principal and defendant his surety.
    The defendant relied on the receipt, a copy of which has already been given.
    His Honor charged the jury that if there was fraud in obtaining the receipt, it could not avail the defendant; and that unless money or money’s worth, passed from Bowen to Pitts, the receipt was worthless, and nothing more than a mere form.
    The plaintiff had a verdict for the full amount paid by him on the execution.
    The defendant moved for a new trial on the following grounds:
    1st. Because his Honor allowed the plaintiff to file a replication to defendant’s plea in bar, after general demurrer overruled.
    2d. Because his Honor instructed the jury that unless they were satisfied from the evidence that there was actual pay-
      merit, or money’s worth, the receipt of the plaintiff’s intestate to W. H. Bowen and this defendant was worthless and of non effect.
    3d. Because the plaintiff’s intestate gave a full discharge against the bond voluntarily, and with a knowledge of all the facts, without fraud on the part of the defendant, and the debt thereby was wholly extinguished in law.
    4th. Because the plaintiff’s intestate, by his own delay and voluntary act, discharged the defendant from the bond debt, he being merely surety.
    5th. Because to charge defendant with the payment of the bond, would be a constructive fraud upon him, the benefit of which would inure to the representatives of the obligee.
    6th. Because the verdict was contrary to the law and the evidence.
    
      /Spain, for the motion.
    
      Moses, contra.
   RichardsoN, J.

delivered the opinion of the Court.

In February, 1843, John J. Pitts confessed a judgment to Wm. H. Bowen for $300 ; and Bowen, on the 15th April, 1843, transferred the judgment against Pitts to A. Garden for value received. This transfer was made with the knowledge of Bell; and Bell received from Garden a negro, which was part of the consideration paid by Garden for the transfer of the_judgment. On the same 15th April, 1843, Bowen and Bell gave the bond to indemnify Pitts against the judgment, which had been so assigned to Garden. On the 27th Feb’y. 1846, Pitts took of Bowen a receipt in full against the judgment, as if Bowen still held it; at the same time, Pitts gave Bowen a receipt- against his and Bell’s bond. These reciprocal receipts were evidently the consideration, each for the other — i.e.'Bowen and Pitts simply exchanged paper receipts.

Accordingly, Garden, the assignee, collected, as he had a right to do, the amount of the judgment from the administrator of Pitts. Upon this payment to Garden the administrator of Pitts sued Bell upon the bond, to recover the indemnification promised. These are the facts of the case, and such the respective conduct of Pitts, Bowen and Bell. Upon the justice and merits of this action by Pitts’ administrator for the stipulated indemnity, there can be no dispute. The receipt of Pitts to Bowen was merely formal, i. e. in consideration of Bowen’s receipt against a judgment that belonged to Garden, and over which Bowen had no control; or else, it was a fraud upon Pitts. Bowen in his evidence excuses himself for passing such receipt, i. e., he wanted time to collect the money to indemnify Pitts. Bowen explained the transaction to Bell, and gave him Pitts’ receipt. But Bell now sets up the receipt as a full discharge of the bond. Under such circumstances, the judge properly charged the jury, that if there was either a fraud upon Pitts by Bowen, in obtaining the receipt against the bond, or if the receipt of Pitts was without '’any consideration, it was worthless. I need scarcely observe, that all receipts are explainable by parol; and Bowen candidly explains those in question to have been given — the one for the other, for the purpose of gaining time and money to pay Pitts.

9 Cow. Rep 401.

In explaining a receipt the true rule was well laid down in one of the cases cited, by appellant’s counsel, from Crittenden ads. Fuller, to wit: That such circumstances as would lead a Court of Equity — as fraud, mistake or surprise — may be shewn, at law, to destroy the effect of a receipt.”

With such real facts and such unreal receipts, how could, there be any other verdict than for the plaintiff?

We have now disposed of the merits of the case, and come to the point of pleading, made in the 7th plea of defendant. The defendant Bell pleaded the receipt of Pitts in discharge of the bond. To this plea in bar, the plaintiff demurred, and the Court overruled the demurrer. This was an error against the plaintiff; but he had leave to file a replication in fact; and he replied fraud and covin in obtaining the receipt, and the defendant joined issue on this replication. The right of so replying is objected to, i. e. after a general demurrer. But the counsel did not press this point, and I will not enter upon the distinction between the cases, where the party demurring and having his demurrer overruled, is still allowed to answer over, or not, upon the facts alleged. This is not necessary— because in this case the overruling the plaintiff’s demurrer, but allowing him to reply, left the alleged receipt to stand upon its own import and merits, as a receipt j and the plaintiff had a right to prove the fraud and covin in his reply in evidence to the receipt, as well as to any other part of the defence — in the same manner as if the plaintiff’s demurrer had been sustained. For illustration. — Suppose on the other hand, the demurrer had been sustained, would.not the defendant have been still at liberty to prove the receipt? — which, although not a discharge of the bond, might still go for what it was worth. Under the plea of payment he surely might have done so — because the factum and body of the receipt would have still remained to prove satisfaction, under the plea of payment.

This seventh plea, then, together with the replication, left the case and defence as they would have stood if the demurrer had been supported. But it is clear that the demurrer ought to have been supported; because the receipt not being under seal could be no legal bar to the recovery on the bond, although it would still stand as evidence of payment. Thus, then, it- is evident that, although overruling the plaintiff’s demurrer was an error, yet it was in favor of the defendant; and permitting the plaintiff to answer over to the fact of the receipt, placed the defendant in his proper position under the receipt, and took nothing from his rights.

It is always allowable for tho appellee to shew that the final result and consequence of an error against himself have eventuated in no wrong to the rights of the appellant; and he, therefore, in such a case, has no cause of complaint.

In a word, the Court ought to have sustained the plaintiff’s demurrer; but allowed the defendant to prove the receipt, subject to the proof of fraud. And by overruling the plaintiff’s demurrer, but suffering his reply of fraud, this end was obtained.

The appeal is dismissed.

The whole Court concurred.

Motion refused.  