9 Port. 145 | Ala. | 1839
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
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
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, notwith
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 evi
For the.error of this charge, the judgment of the Circuit court is reversed and remanded.