Pilie v. Mollere , 2 Mart. (N.S.) 666 ( 1824 )

Martin, J.

delivered the opinion of the court. The case before us is on a bill of exceptions, to the opinion of the judge a quo, in refusing to permit a note offered in evidence, to go to the jury.

East'n District. July, 1824.

By an act of the legislature of this state, approved on the 14th March, 1823, it is provided that “ no promissory note shall be obligatory or admissible in evidence, unless the sum be expressed in words at full length.”

This act was evidently passed, in consequence of a decision of this court, at the February term proceeding, in the case of Roland vs. Nugent, 12 Martin, 659, in which we held a note obligatory, although the sum was expressed in figures. Were the present case before us on the merits, we could derive no aid from the decisions of any other tribunal, nor the works of any writer, as the principle introduced is absolutely novel. According to the law-merchant, as understood in the United States, Great Britain, and France, the payment of a bill of exchange, or note, cannot be resisted, on the -ground of the sum being expressed in figures. Chitty on Bills, 82, Pothier, Traite du Control de Change, n. 35 & 99.

The legislature was so anxious tó come to the relief of those who might subscribe notes, in which the sum was expressed in figures, that they declared them not obligatory, and not admissible as evidence of a debt

The counsel, charged with the defence of this case, has begun it by objecting to the admission of the note in evidence. It is contended that:

1. The note, set forth in the petition, is one for two thousand four hundred and seventy-four dollars and thirty eight cents; that, offered in evidence is not obligatory at all, or if so, is good for two thousand four hundred and seventy four dollars only-Ergo, there is a fatal variance.

2. The sum in the note offered, is not expressed in words at full length; i. e. it is not wholly so-a part of it being in figures-Ergo, the act renders it inadmissible.

The plaintiff’s counsel contends that the principal sum is in words at full length; that the fraction (the cents)is alone in figures-that what is in figures cannot vitiate what is in words at full length.-Utile per inutile non vitiatur.-The cents are so trifling a part of the sum that no attention ought to be paid to them ; de minimis non curat lex-they will be rejected as surplusage.

We think there is no principal sum in the East'n District. July, 1824. case. We see but one sum, and it cannot be styled principal, because there is no other, in relation to which, it may receive this appellation.

The cents are a component part of the debt, as well as the dollars ; and the creditor could not be more legally compelled to accept of the latter, without a simultaneous tender of the former, than the former without a like tender of the latter. Between the original parties, the sum is indivisible.

Granting then what is asked, viz: That what is in figures is to be considered as not written; then the note produced is one for two thousand four hundred and seventy-four dollars only; and the sole question presented for our solution is ; Did the first judge err in refusing such a note to go to a jury empan-nelled to try the issue, whether the defendant bad given the plaintiff a note for two thousand four hundred and seventy four dollars and thirty eight cents?

We think thevariance was fatal ; and the judge did not err. When fhe plaintiff

When fhe plaintiffproves something differ- ent from what be has asked, the defendant ought to have judgment ; no other can be giv- I East'nDistrict. July, en. Quando el actor prueba otra differente causa, de la qae por el fue pedido, se ha de absolver el reo: por que non se puede hacer otra sententia, que es nulla la que se hiciere. Cur. Phil. Libello, n. 7.

The proof must be made according to the form of the petition; because the judgment must be given accordingly. Ha de ser hecha la prueba, segun la forma del libello, y la razon es que segun esta se debe pronunciar la sententia. 3 Cinco Juicios, cap. 1, & 7, n. 283.

In an action on a contract, it is necessary to set it out truly ; and a difference in any part is fatal; because the contract is entire. King vs. Pipel, 1 T. R. 240.

A trivial variation in setting out a written instrument is fatal, when the plaintiff has the original in his possession or may by due ex- ertion, obtain it. Dunbar vs. Jumper, 2 Yeates, 74.

a bill be drawn by J. Crouch, and decla- red upon as drawn by J. Couch, the variance is fatal. Whitwell vs. Rennet, 3 B. & P. 559. Where a note was offered against Austin, as made by W. Austin, R. Strobel & W. Shirtliff, and that charged,was stated to be made by W. Austin, R. Srobel and W. Shurtliff. Aus tin, who was alone in court, was permitted to avail himself of the variance between the note produced and that charged. 4 T. R. 611.

Derbigny for the plaintiff, Hennen for the defendant.

If the plaintiff mistake the sum, he fails in his action. Alleyn, 28, 29. Smith vs. Hickton, B. R. T. 7 Geo. 2. An error in a fractional part is fatal; and where, on a report of referees, judgment was rendered for 99 cents more than was reported to be due, the judgment was held to be erroneous, and was reversed. Stafford vs. Van Zandt, 2 Johns. Cases, 66.

The principle has been acted upon in this court. Victoire & al. vs. Moulon, 8 Martin, 400. Florny vs. Allen, 11, id. 549.

The conclusion to which we come renders it unnecessary to examine, whether a note, in which the cents are set down in figures, is (when it corresponds with that stated in the petition) admissible as evidence of a debt.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.