Fintard v. Tackington

10 Johns. 104 | N.Y. Sup. Ct. | 1813

Per Curiam.

The declaration of the plaintiff below, consisting of a detail of his case, is to be liberally construed, so as, if possible, to meet and embrace the proof. We have never required any technical nicety or form in pleadings, in the justices’ courts, because the pleadings are usually by parol, and managed by the parties, without the aid of counsel. The plaintiff, therefore, dedared for money bad and received, and upon a lost note, which he particularly described, and as having been given for work and labour. If, therefore, the testimony will entitle him to recover, either upon the note, by proving its existence, loss and contents, or upon the original debt, for work and labour, the judgment ought to be supported. We see no reason why the recovery upon the note, as a lost note, was not good. It does not appear that the note was negotiable, or, if negotiable, that it had ever been endorsed, and the existence and contents of the note were fully proved, and the circumstances were enough to authorize a conclusion that it had been lost or destroyed. The cases which have not permitted a recovery at law, upon negotiable paper which was merely lost and not destroyed, were those in which the paper had been endorsed before it was lost. (Pierson v. Hutchinson, 2 Campb. N. P. 211. and note; and the cases cited by Lord Eldon in 6 Ves. 812.) The court below went, perhaps, upon the ground of the existence of the previous debt; and that the recovery upon that was to be supported, notwithstanding the giving of the note. The better opinion on this poin seems to be, that the acceptance of negotiable paper, on account of a prior debt, is prima facie evidence of satisfaction, and that you cannot recover upon the old debt without some explanation, or giving some account of the note. (Kearslake v. Morgan, 5 Term Rep. 513. Richardson v. Rikeman, cited in 5 Term Rep. 517. Holmes and Drake v. Camp, 1 Johns. Rep. 34.) But this was not shown to be negotiable paper, and if that was the intendment, in the first instance, as seems to have been the conclusion of the court in Angel v. Felton; (8 Johns. Rep. 149.) yet the plaintiff below gave as sufficient an account as the nature of the case, and the condition of the parties, would well admit, of the loss of the note, without its being negotiated and endorsed. On either ground, therefore, we think the judgment ought to be supported.

Judgment affirmed.