1 Denio 108 | Court for the Trial of Impeachments and Correction of Errors | 1845
The witness Moore was the first endorser of the nóte. If he had any interest in this action against the makers, there can be no doubt that the release by the plaintiff rendered him a competent witness.
The note is payable to “E. Moore, assignee of J. K. Van Ness, or order,” and it is endorsed generally “ E. Moore,” without any addition. The endorsement is sufficient to pass all the payee’s "interest in the note, whether he held it in his own right, or as assignee for the benefit of some one. else.
The endorsement and delivery of the note by Mrs. Van Ness, after it had been endorsed by the payee, transferred the legal title to the plaintiff, and he clearly had a right to sue.
Under the pleadings in relation to the infancy of Livingston, it was sufficient for the plaintiff to show a new promise or ratification by Livingston in March, 1841; or, indeed, at any time after the making of the note. It was then for Livingston to
On looking at the whole charge, I think the question of fact whether Livingston had ratified the original promise was fairly left to the jury. Whether they found for the plaintiff upon insufficient evidence, or not, is a question which, upon a writ of error, we cannot consider.
What the court said about pleading or giving notice of the receipt is a matter of no consequence. The receipt has no tendency whatever towards making out a defence to the action.
On the bill of exceptions all is well enough. But there is a fatal error in the record. The jury have passed upon the first issue, and found that the defendants did undertake and promise ; but they have taken no notice whatever of the issue joined on Livingston’s plea of infancy. This is not like the case of Thompson v. Button, (14 John. 84,) where the defendant held the affirmative of the second issue, and the court said the jury could not have found the first issue for the plaintiff if the defendant had made out his justification. Here, the plaintiff held the affirmative of the second issue; and the jury may well have found the first issue, or the original promise, in favor of the plaintiff, although there was no proof of a subsequent ratification by Livingston. We know by the bill of exceptions that the question of ratification was tried; but that cannot aid the defect in the judgment record. It there appears that the court below gave judgment in the plaintiff’s favor, when the jury had passed upon only one of the two issues, in both of which he held the affirmative. The bill of exceptions furnishes evidence that the record ought to be amended ; but that is no better than evidence by affidavit. An amendment must be made, before the error will be cured.
Judgment reversed.