Kennel v. Muncey ( 1823 )

Haywood, J.

delivered the opinion of himself and Judge Whyte ; Judge Brown having been concerned as counsel in the cause, and Judge Peck was absent.

This is an action of debt upon a note of hand, which the defendant he-low alleged to have been altered after it was executed, from $1,764 to $1,794, which was the sum demanded. There was also a second count, for the amount for which the goods sold, that was, the consideration of the note, which amount was $1,794. The Court charged the jury that any alteration made in the note, without the assent of the defendant after its execution, vitiated the same so that no recovery could be upon it; but that the plaintiff might still recover, upon the count for goods, wares and merchandise, sold and delivered.. The jury found the issues in favor of the plaintiff, and assess his damages by reason of the several promises in the declaration mentioned, to $ 1,764.33, besides costs. The Circuit Court gave judgment accordingly.

First, the charge of the Judge was correct; this being not a sealed instrument, did not extinguish the precedent demand on which it was founded.

Secondly, so much of the verdict as is proper shall be received, and the residue shall he rejected; I mean, so much as is an answer upon the issues submitted, and is not foreign thereto ; and it- shall be' moulded into legal form. That they find the issues for the plaintiff, $ 1,764, may be retained and the rest rejected. Moulding the verdict into legal form, it will then be a finding that the defendant does owe, as in the declaration stated, to the amount of $ 1,764, the residue being not now due.

Judgment affirmed.