Page:Federal Reporter, 1st Series, Volume 5.djvu/328

 316 FEDERAL REPORTER. �over to their creditors. If they so intended, there would be something to indicate such intention; but if they took an absolute discharge, as was done in this case, the contrary must be inferred, The fact that in transferring the notes theydid it "without recourse, except as to the consideration," and that this is taken notice of in the transferof the marriage settlement, is a clear indication of what they intended in the whole transaction. They evidently intended to guaranty nothing except the consideration. They offered Governor Chapman the claim against Prewitt as it stood. He must judge for himself as to its validity and value ; so far as they were concerned it was ail right. He evidently understood the matter in this light. He investigated the claim. He consulted Mr. Walker in regard to it; satisfied himself as to its validity and value, and agreed to accept it. It seems clear to me that Governor Chapman took the claim with its collateral security at his own risk, and that his discharge of Bradley, Wilson & Co. was intended to be in fact, as it was in form, absolute and unconditional. But, aside from this consideration, it does not yet appear that the security is not valid. The decree of the circuit court has been appealed from. The litigation is not ended. On the question of fail- ure of consideration, the eviction or decree of nullity must be complete before it constitutes a ground of rescission. �Looking at the whole case, as it is presented by the plead- ings and proofs, it Beems to me that the bill must be dis- missed, with costs. �Let a decree be entered accordingly. ����