
    
      Thomas N. Gadsden v. Samuel Gasque.
    
    The covenant of the plaintiff was, that'he should accept and pay “all such draft or drafts” as the defendant might “from time to time” draw on him, for the purchase of slaves, to the amount of $5,000, and no more — and the covenant of the defendant was, that he should indemnify the plaintiff from all loss “by reason of any acceptance or acceptances of all such draft or drafts as he might from time to time accept, by virtue of the true intent and meaning” of the agreement — held, that the defendant’s liability for subsequent acceptances was not discharged after acceptances to the amount of $5,000 had been discharged.
    A judgment, by agreement of the parties, may be entered up as a security for a debt then due, and also for future advances to the defendant; and the plaintiff may collect by execution not only the sum due at the time the judgment was rendered, but the amount subsequently advanced.
    
      Before Mr. Justice Fe.ost, at Chambers, Charleston, February y 1847.
    CONFESSION OF JUDGMENT FOR, $5,000, DATE MAY 17, 1845.
    This was a motion to stay the execution in the above case, and for a rule against the plaintiff, to show cause why satisfaction should not be entered on the judgment.
    AFFIDAVIT OF THE DEFENDANT, SAMUEL GASQUE.
    The State op South Carolina, )
    
      Georgetown District. $
    Personally appeared before me, Samuel Gasque, the defendant in the above stated case, who, being sworn, made oath that, on the 17th May, A. D. 1845, he confessed a judgment, in the city .of Charleston, for the sum of five thousand dollars, in favor of the plaintiff, Thomas N. Gadsden — on a bond of indemnity in the penal sum of five thousand dollars, dated the 16th May,-in the same year, a copy of which is attached to the record in said case — and this deponent further says, that pursuant to the stipulations contained in the said bond of indemnity, on the 19th day of May, in the year above mentioned — -the day on which the entry of said judgment bears date, he drew a draft on the said Gadsden, for the sum of five thousand dollars, payable at ninety days, which was accepted by the said Gadsden — that on the 20th August following, the day before the said draft was payable, this deponent remitted to the said Gadsden, for the purpose of meeting said draft, the sum of fifteen hundred dollars — and on the following day, the 21st August, he remitted to him the further sum of fifteen hundred dollars — making, in all, the sum of three thousand dollars, which he had remitted to him in cash, which sums the said Gadsden acknowledged to have received by his letter, dated 21st August, 1845: and this deponent further says, that some time between the date of the said judgment and the time when the said draft had arrived at maturity — that is, between the 19th of May and the 21st of August, deponent had shipped from Georgetown to the defendant in Charleston, the following negro slaves, viz: Sam, Sarah, Bob, Joe, Dinah, Tom, to be sold by defendant in order to place him in funds to meet the payment of said draft; that defendant sold Tom for the sum of $585 — and although the said Gadsden has never furnished to deponent an account of the sales of the other negroes, he however acknowledged, by his letter of the , that they were worth at least $1600, making, in the whole, the sum of two thousand one hundred and eighty-five dollars — -so that, with the three thousand dollars which defendant remitted in cash, as above stated, the said Gadsden was in the possession of funds belonging to the deponent, to the amount of five thousand and one hundred and eighty-five dollars, before the said draft became due, to enable him to meet, the payment thereof. This deponent further says, that notwithstanding he had placed the said Gadsden in the possession of funds, to an amount more than, sufficient to enable him to meet the said draft, when it should arrive at maturity — the said Gadsden, instead of entering satisfaction on the said judgment, pursuant to the provisions in the said bond of indemnity, upon which judgment is predicated. — -nevertheless refuses so to do, but insists upon enforcing the same against the property of this deponent, in fraud of the rights of the bona, fide judgment creditors of deponent — deponent further says, that there are judgments against him to a considerable amount, in the District of Marion, where he resides, junior in date to the one confessed by him to Gadsden — that nearly all his property is now under levy, and advertised to be sold on the sale day in February next — that Gadsden, with the view of defeating the just rights of the other judgment creditors of this.deponent, has sent his execution to the Sheriff of Marion, in whose office deponent has heard it is lodged- — and insists upon being paid the amount of his said execution, out of the proceeds arising from the sale of deponent’s properly, notwithstanding the same has been fully paid and satisfied.
    SAMUEL GASQUE.
    
      Sworn to before me, this 2§th January, 1847.
    D. L. McKay, Notary Puilic.
    
    
      Mr. S. Gasque :
    
      Dear Sir — I received, per your brother, a negro boy, named Bob, and will do the best I can with him, as you have directed— though, as a guide for me, I would like to have his cost price: do this by return mail. The fellow you sent me a few days since, I was offered $525 for, and I think the same man will give me $550, which, if he does, I will accept, if you please. I am very short of money — therefore must beg you to be sure to attend your draft — negroes are getting higher every day, particularly men and boys; not so small as the one you have sent — two sizes larger.
    Yours truly, THOMAS N. GADSDEN. .
    Charleston, Mayj 1-845.
    Charleston, 21st August, 1845.
    Mr. Samuel Gasque:
    
      Dear Sir — Enclosed, you have your draft accepted: remember, for I have no security, the judgment must be renewed— I will therefore expect shortly to see you in Charles-tbn, to renew the judgment; also to sign an agreement, which I will draw out for us both to sign, according to our present arrangement, for the future transaction of business. If you will act fairly with me, I can make considerable of commissions, and you can make good profit if you buy judiciously. I do not know what effect the Mexican War will have on slave property — as soon as I can find out what public sentiment is, I will write you again, though you had better come down and see me in person. I received by mail yesterday, fifteen hundred dollars; your draft is payable to-day of $5000.
    Yours as usual, THOMAS N. GADSDEN.
    P. S. — I received fifteen hundred more dollars by mail this morning, from you. Yours, «fee. T. N. GADSDEN.
    $5000 drawn, 90 days, through Bank of Georgetown, da- ■ ted 20th May, 1845, paid 21st August, 1845.
    22d August, 1845, $5000 at 90 days,' — -27th November, 1845, $2500 at 60 days, paid.
    COPY OP DR. LEE’S .CERTIFICATE.
    I certify that Joe has a curvature of the spine and small limbs, which are probably the consequence of this first defect —I do not consider him capable of enduring continued hard work. (Signed,) LAWRENCE LEE, M. D.
    Charleston, Sept. 16, 1845.
    
      Charleston, 17th September, 1845.
    Dr. Gasque:
    I am happy to inform you that I sold your man Tom this day, for five hundred and eighty-five dollars; I also sold Joe, but he was returned as unsound, as per above certificate r what shall I do 1 Shall I sell him at a less price than I had sold him for, or not ? I got, in the sale just broken up, $563. 1 have been offered $462^ for the girl; I am trying for $500; I think I had better sell at $475, when I get it offered. You paid too much for the little boy; he is not likely; I fear you have paid also too much for the old man : I will do my best, however. Send me on prime negroes, and I can do well for you. Yours truly, T. N. GADSDEN.
    You can give $525 for men; they will bring $575 to $600; women, $400, will sell for $475.
    Charleston, November S2d, 1845.
    Mr. Samuel Gasque:
    
      Dear Sir — Your letter of the 21st instant reached me safely, and, much to my astonishment, I have seen no provision made for your draft of $5000, which is this day payable. You may imagine my situation no ways difficult, but you are much mistaken; the negroes Sam, Sarah,' Bob, Joe and Dinah, when all sold at their outside value, will not bring more than $1600, which in itself is not sufficient to meet the balance against you in our last settlement; I am, therefore, placed in a position which I never expected — more especially, when I take into consideration your frequent promises “to make myself easy,” that you would not suffer the draft to fall due, without funds to meet it; judge now of my disappointment, thrown altogether on my own resources, and at a time by no means favorable, as I have been frequently pressed for this month past, owing to the dullness of the season. I am compelled to make this matter more obligatory on you, and request you to come to Charleston forthwith, in person, and arrange this business — it can never continue this way any longer. I will expect a reply from you by returning mail.
    THOMAS N. GADSDEN.
    Received from Samuel Gasque two hundred and fifty-six 67-100 dollars, in full of all demands, to date, for balance due on ledger and interest. THOMAS N. GADSDEN. ■
    
      August 27th, 1844.
    COPY OP THE AGREEMENT,
    The State op South Caholina:
    Know all men by these presents, that I, Samuel Gasque, of Marion District, in the State aforesaid, am hold, and firmly bound unto Thomas N. Gadsden, of the city of Charleston, in the State aforesaid, broker, in the penal sum of five thousand dollars, to be paid to the said Thomas N. Gadsden, his certain attorney, executors, administrators or assigns, to which payment, welL and truly to be made and done, I bind myself, and each and every of my heirs, executors, and administrators, jointly and severally, by these presents.
    Sealed with my seal, and dated at Charleston, this sixteenth day of May, in the year of our Lord one thousand eight hundred and forty-five, and in the sixty-ninth year of American Independence.
    The condition of the above obligation is such, that, whereas, the said Samuel Gasque, for the consideration hereinafter expressed and set forth, covenants, promises, and agrees to and with the said Thomas N. Gadsden, from time to time, and with all reasonable dispatch, to purchase slavesj and cause them to be sent and delivered, with as little delay as possible, to the said Thomas N. Gadsden, in the- city of Charleston, then and there the said slaves to be held by the said Thomas N. Gadsden, at the risk of the said Samuel Gasque, and to be sold from time to time by the said Thomas N. Gadsden, as in his judgment is for the best interest of the said Samuel Gasque, and on his account. And it is further covenanted and agreed, by the said Samuel Gasque, that the proceeds, arising from the sale of the said slaves, after first deducting all incidental costs, and charges and cormnissions for the sale of the same, shall be applied by the said Thomas N. Gadsden to the payment of all such liabilities as the said Thomas N Gasden shall incur by virtue of his agency in the said sales. And whereas, the said Thomas N. Gadsden, in consideration of the aforesaid covenant on the part of the said Samuel Gas-que, will, from time to time hereafter, accept, either at' sight or on time, and when due, pay all such draft and drafts, bill and bills of exchange, as the said Samuel Gasque may from time to time draw upon him, the said Thomas N. Gadsden, in the purchase of slaves, as the said Samuel Gasque may purchase for sale, as aforesaid, to the amount of five thousand dollars, and not more — -which said draft and drafts, bill and bills of exchange, may be made payable to any Bank in the city of Charleston. And the said Samuel Gasque hereby further covenants and agrees not to limit the prices and sales of any or all such slaves as may by him be sent to the said Thomas N. Gadsden by virtue of this covenant and agreement, but the said Thomas N. Gadsden shall, at any and all times, sell the same at the best possible prices in his discretion, without limitation or restraint, by the said Samuel Gasque. And it is the true intent and meaning of these presents, that the said covenant and agreement, herein entered into, the said Samuel Gasque may dissolve the same, and the said Thomas N. Gadsden may, at his pleasure, dissolve the same, at any time either may desire, upon thirty days notice of such intention of either party, being given to the other. And it is the further intent of these presents, that the foregoing bond is intended to secure and indemnify the said Thomas N. Gadsden for all loss and injury which he may sustain or suffer, by reason of any acceptance or acceptances of all such draft or drafts, bill and bills of exchange, he may from time to time accept for and on account of the said Samuel Gasque, by virtue of the true intent and meaning of these presents. And if the said Samuel Gasque shall well and truly perform all his aforesaid covenants and agreements, then the above obligation to be void and of non-effect, or else to remain in full force and virtue.
    Witness my hand and seal the. day and year aforesaid.
    (Signed) SAMUEL GASQUE, [l. s.]
    Signed, sealed, and delivered in presence of John S. Riggs.
    OPINION.
    The Presiding Judge. The rule to show cause must depend on the result of the motion to stay the execution, for all the objections which can be made to the judgment, apply equally to the execution; and if this be not stayed, it would be inconsistent to direct an inquiry whether the judgment is satisfied. The motion to stay the execution is not supported by the allegation of any irregularity in the proceedings, or of fraud in the judgment, nor by any evidence or complaint that the defendant owes to the plaintiff nothing, or not so much as the judgment; but it is rested entirely on the ground that the bond of indemnity, on which the judgment is entered, has been fully satisfied by the defendant’s repayment of the first draft for $5,000, which was accepted and paid by the plaintiff. This depends on the construction of the condition of the bond, and presents a mere question of law.
    First, it is to be remarked that the agreement consists of mutual covenants between the immediate parties to the consideration, and is not a guaranty or engagement to pay the debt of a third person. The plaintiff’s acceptances, to whatever amount, enured to the benefit of the defendant. The limit of the amount of acceptances was stipulated for the benefit of the plaintiff, and not of the defendant, as in cases of guaranty. It is the plaintiff who covenants that he will accept the defendant’s draft, for the purchase of negroes, “to the amount of $5,000, and not more.” The defendant covenants to indemnify the plaintiff against loss from all such acceptances. This covenant expresses the just liability of the defendant, hut if it exceeds the security which the plaintiff contracted for, the claims of other creditors require that the plaintiff should not take more, under the judgment, than is secured by the bond. Is the security of the bond and judgment confined to the first acceptances of the plaintiff, not exceeding $5,000? This is to be first determined by the express terms of the agreement. If they admit of doubt, the whole transaction may be brought in aid of the construction. The covenant of the plaintiff is, that he shall accept and pay “all such” drafts as the defendant may “from time to time” draw on him, in the purchase of slaves, “to the amount of $5,000, and no more.” The defendant covenants that he will indemnify the plaintiff from all loss, “by reason of any acceptance or acceptances of all such draft or drafts as he may from time to time accept, by virtue of the true intent and meaning” of the agreement. Even if the terms of the agreement are to be construed by the rules which determine a continuing guaranty, a reference to the cases collected in Chitty on Coirtracts, 525-6, will show that the defendant’s liability for subsequent acceptances is not discharged after acceptances to the amount of $5,000 have been satisfied.
    This construction receives confirmation from the whole agreement. The defendant had undertaken an agency for the sale of the slaves, on commission, to be purchased by the defendant with funds to be raised on the plaintiff’s accept! anees. The agreement was to continue indefinitely, and be dissolved at the pleasure of either party, on thirty d^s notice. The business required a large outlay of funds. The defendant’s purchases depended on the advances procured by the plaintiff’s acceptances.
    If the bond were satisfied by the first draft for $5,000, much pains were wasted in preparing the terms of the agreement.
    It appears, from the plaintiff’s letter of the 21st of August, that he then supposed the judgment did not protect any acceptances after the first. But he is not concluded by that opinion, as by an admission of facts. He did not take a new security; and subsequently accepted for the defendant, to the amount of $7,500. He may have been advised that the judgment was a security for future acceptances, and in confidence of this, gone on. This misapprehension of the effect of the agreement, cannot change it. There is no evidence of an admission, in fact, that the judgment was satisfied by the payment of the first drafts, or that the subsequent acceptances weré not made on the security of it.
    The motion is refused.
    The attorney for the motion moved to reverse the decision of his Honor, refusing the motion, on the following grounds:
    1. Because his Honor erred in deciding that the bond on which the confession of judgment was given, was continuing in its nature — and not discharged by the parties being indemnified for the first advance, to the amount of the penalty.
    2. Because his Honor erred in deciding that the plaintiff on the judgment was entitled to set up the security against what was acknowledged to be the intent of the parties, and against his own admission, that the judgment was no longer of force.
    3. Because his Honor’s decision was, in other respects, contrary to law.
    Monroe, for the motion.
    Porter, contra.
    
   Frost, J.

delivered the opinion of the Court.

It is not affirmed in the affidavit of Gasque, that the amount claimed by Gadsden, and which he is proceeding to collect under the judgment and execution, is not in fact due to Gadsden ; and the account current between the parties, showing a balance for more than the amount of the judgment, was produced at the argument of the case at Chambers, and admitted in evidence, without objection. The ground assumed in the affidavit and argument, for staying the execution, is, that the bond and judgment confessed therein, import an obligation to repay Gadsden’s acceptances to the amount of five thousand dollars, and no more; and that by cash payments and credits for negroes sent to Gadsden for sale, he has been repaid the first acceptance for five thousand dollars, by which payment the judgment is satisfied. This statement presents a question of law on the construction of the condition of the bond, whether the penalty is a security only for acceptances to the amount of five thousand dollars, or a continuing security for future acceptances. On this point it is only necessary to support the construction of the Circuit Judge, by citing the authorities referred to in his opinion.

In Williams v. Rawlinson, 3 Bingh. 71, the condition of the bond was, that the principal obligor should, “from time to time,” and at all times thereafter, reimburse to the obligees all sums of money which the obligees should, within ten years, advance or pay on account of accepting and paying any drafts which the principal obligor should, “from time to time draw” on the obligees — it was moved, in arrest of judg-meat against one of the securities, that, by the terms of the bond, the plaintiffs were not to allow the principal obligor to be more than £5,000 in their debt at one time; whereas, it was averred that he owed them a sum exceeding £35,000 at the time of the action; but the Court said there was nothing in the objection, the meaning of the bond being clearly that whatever the plaintiffs advanced, the defendant would contribute £5,000 towards indemnifying them. The condition of the bond in Butson v. Spearman, 9 Ad. and Ellis, 298, was, that the obligors should pay to the obligees all such sums of money, not exceeding £200, which the obligees should advance or pay on account of their acceptances of bills which the principal obligor should, “from time to time,” draw upon them. The judgment of the Court, expressed by Lord Den-man, C. J., was, “ we are satisfied this is a continuing guaranty. There is no doubt.” Sansom v. Bell, 2 Campb. 37, and Merle v. Wells, 2 Campb. 413, will be found to confirm these decisions. In Livingston v. McInlay, 16 Johns. R., it was held that a judgment, by agreement of the parties, may be entered -up as a security for a debt then due, and also for future advances to the defendant; and the plaintiff may collect, by execution, not only the sum due at the time judgment was rendered, but the amount subsequently advanced to the defendant; and it is said, in the judgment of the Court, that there is no solid objection to this, any more than to a mortgage being held as a security for future advances.

The motion is dismissed.

Richardson, J. O’Neall, J. Evans, J. and Wardlaw, J. concurred.

Motion refused.  