Colby v. Everett

10 N.H. 429 | Superior Court of New Hampshire | 1839

Parker, C. I.

The defendant’s plea is sufficient in form as well as in substance. Although there are several counts in the declaration, it is not necessary to file a several plea to each count. If the same matter is relied upon as a defence to all the counts, one plea, pleaded to all the counts, is sufficient. It is to be taken distributively, as if it was a plea to each. 1 Chilly's Pl. 533, 551; 2 Ditto 643; 1 Salk. 223, Howard vs. Jennison; 1 D. & E. 40, Truman vs. Hirst.

The plaintiff’s replication is good in substance. It was a sufficient answer, as to the first six counts, to traverse the allegation of the plea; and it is a sufficient answer, as to the seventh, that the note in that count mentioned was secured by a mortgage — such notes being specially exempted from the operation of the statute of limitations. N. H. Laws 77.

The only remaining question, and the one which is first presented by the pleadings themselves, is, whether the demurrer of the defendant is well taken. The ground relied upon is, that no such note as that described in the seventh count of the declaration, is, in fact, secured by the mortgage which is spread upon the record.

But it is a sufficient answer to this, that it certainly does not appear that it is not so. The replication avers that the note is secured by a mortgage from the defendant, which is still in force. This is a matter of fact, which the defendant might have traversed by his rejoinder, and the question might have been settled by a jury. But the court cannot determine, from the condition of the mortgage, as set forth in the rejoinder, that it is not so secured. It is true that the note is not there fully described. The last note there mentioned is described as payable in 1830. Its date is not given, unless it may be inferred from the preceding parts of the condition. But the sum agrees with that of the note mentioned in the seventh count : and the dates of the other notes described in the mortgage are the same with the date of the note sued. The latter also is payable by the 15th of March, 1830, and the other notes mentioned in the mortgage were payable by the 15th of March, in preceding years. Here are very strong grounds for supposing that this is the note intended by the last clause of the condition. It is by no means to be inferred from that clause, taken in connection with what precedes it, that the note there referred to was, in terms, made payable in 1830, without more, so that the maker would have the whole year in which to pay it.

We have no doubt that it would be competent for a jury to find, from the matter to which we have already adverted, appearing upon the face of the declaration and mortgage, that the note in suit is the one intended in the last clause of the condition. It is, therefore, very clear that the court cannot find, from matter appearing upon the record, that this note is not so secured; and the defendant’s demurrer is not well taken.

The result must have been the same, had the notes described in the condition of the mortgage agreed in no particular whatever with the note in suit; for it is settled that a debt may be secured by a mortgage, where the original note has been taken up, and a new one substituted, the debt remaining the same, and the evidence of it, only, being changed. 2 N. H. Rep. 525, Elliot vs. Sleeper; ante 210, New-Hampshire Bank vs. Willard, and auth. cited. This, of course, may be shown by other evidence, the matter not appearing upon the face of the deed.

Judgment for the plaintiff on the demurrer.