Abercrombie v. Mosely , 9 Port. 145 ( 1839 )

GOLDTHWAITE, J.

The first assignment of errors presents a question which deserves some consideration, and is not without its importance on the course of practice. It is obvious to all who have had any connection with business on the circuits, that pleas are frequently put in at the moment of trial, and when it is greatly inconvenient to members of the bar to reply specially. Hence has arisen, in a great measure, the custom which has obtained so extensively, of pleading the usual pleas by merely naming them. It is to be regretted, that this laxity of pleading was ever countenanced by the court, but it has prevailed too long, and been sanctioned by too many decisions, to be now'overturned. If the parties to a cause will consent to this course of pleading, perhaps no very evil con sequences will flow from it. Another effect, however, of this hurried mode of pleading, is, that in many, perhaps the most, of cases, which are tried on the circuits, no regular issue is ever formed, unless insisted on by the counsel engaged in the cases. It is always within the power of the defendant or plaintiff, to require .the pleadings to be in the regular form, and they can respectively claim judgments of non pros, or default, if the regular steps are omitted. With this right completely in their power on the circuit, it is unjust that parties should be permitted, after atrial, as if an issue was in fact made up, and submited to the jury, to reverse the judgment for the want of a replication or rejoinder. Thus much would not have been said on this point, if it were not that this court, in the case of Wheelock vs. Fitch, (3 Porter, 387,) had sustained the precise exception' taken by this assignment. We are now satisfied that case was incorrectly ruled, and that it is not in accordance with the general course of our decisions on similar questions, as we have always been actuated by the most earnest desire to divest the practice of the courts, of those technicalities which so often tend, when carried to extremes, to the prostration of justice.

The defendant, in this court, insists that there is no error in this case, even if it is admitted, that the charge of the court cannot be supported,-as the evidence before the jury warranted no other finding than the one ascertained by the verdict.

It is true, the evidence is very unsatisfactory to induce the conclusion, that the note and order were given by Sims, and accepted by Mosely, as an absolute satisfaction of his demand. . There are many and strong circumstances in the case, as shewn by the evidence, to rebut any such conclusion, but ve cannot say that some parts of the evidence are not sufficient, in point of law, unexplained and not contradicted by other parts, to authorise the inferen e, tlu'tthe note was received under an agreement, that it should be in part satisfaction. _ Thus the witness, Maddox, states, that the plaintiff informed him, if he could get the one hundred and thirty dollars from the witness, it would satisfy'hi.s demand, against the defendant, and he woidd get ike rest of the money on the four hundred and seventy dollar note, from his neighbors. It is true, that when this declaration is weighed against the fact, that no receipt was taken, expressing the terms of the settlement, and the evidence of the original debt was retained by the plaintiff, that the presumption arising from this conversation is perhaps destroyed; yet the court is not the tribunal appointed by the law to determine the weight of evidence — it should, in' all such cases be left to the jury to determine. We must, then, look into the charge, as given, and see if it can be supported.,

It naturally is divided at two points; the first, that if the plaintiff received the notes and order as a collateral security, and they were not collected, he was entitled to a recovery in this action ; the second, that if the note was given to the plaintiff, and received by him as á payment of the one due from the defendant,’yet, if the persons from whom the money was due, were insolvent, and the money could not be made from them, then, notwithstanding the agreement of the plaintiff to receive it in payment of his debt, he might resort to a suit on the original consideration, and recover thereon.

The first branch of this charge contains a proposition too clear to require any illustration to support it. It is the recognised and admitted doctrine of all the cases— (Chitty on Bills, 203, note 1 — where all the American cases are collected.) The second proposition cannot be sustained to the extent laid down, by the Circuit court. A bill of exchange, or promissory note, given for a precedent debt, is not a payment, unless it be so expressly agreed by the parties, but it is competent for the parties to stipulate, that it shall be so taken, and when this is expressly agreed on, the original note or liability is completely discharged. In the case of the New York State Bank vs. Fletcher, (5 Wend. 85,) it is said by Judge Marcy, “ that negotiable paper is not payment of a pre-exist-ing debt, unless it is expressly agreed to be accepted as such. I take the law to be, that it is payment, if expressly accepted as such, whatever be the grade of the pre-existing debt.” So, also, in Davidson vs. the Borough of Bridgeport, (8 Conn. B. 472,) the converse of the rule is correctly stated, that the mere giving, for an antecedent debt, of a note or bill which turns out to be unproductive, is not an extinguishment of.such debt, in the absence of any agreement to receive it as payment.

In this case, the Circuit court directs the jury, that even if the noté was given and accepted as a payment, notwithstanding such agreement, if the parties were insolvent, the plaintiff might resort to the original consideration, &c. This charge was not called for by the evidence disclosed, and might have, and was sufficient to, mislead the jury, from the true question for their determination, that is, whether there was any agreement lohat-ever, to accept the note and order, as a payment and satisfaction of the debt due to the plaintiff.

For the.error of this charge, the judgment of the Circuit court is reversed and remanded.