8 Cow. 77 | Court for the Trial of Impeachments and Correction of Errors | 1827
As to the demurrer. The second and third pleas are taken from a precedent by Mr. Chitty; (2 Chit. PI. 435;) and so far as that precedent goes, have the sanction of his authority. In the 1st Yol. of that work, 472, he lays down the principle, of which there is no question, that payment, accord and satisfaction, “ a promissory note or other negotiable security given for the debt, and remaining in the hands of a third person, or otherwise outstanding,” may be given in evidence under the plea of non assumpsit; and in pages 474, 475, he says the defendant is at liberty to plead specially any matter which does not amount to the general issue. So all matters in discharge of the action may be pleaded specially; and he enumerates as falling under that description, accord and satisfaction, release, arbitrament, former recovery, and that a “ negotiable or higher security was given for the debt.” But he remarks that they are seldom pleaded' specially, unless for
In Holmes & Drake v. De Camp, (1 John. 34,) the principle was distinctly asserted by this court, that where a negotiable note has been given for a prior debt, the plaintiff cannot recover on the original consideration, unless he shows the note to have been lost, or produces and cancels it at the trial. There the giving of the note was proved under the general issue, and specially pleaded. Angel v. Felton, (8 John. 149,) recognizes the same doctrine. In Pintard v. Tackington, (10 John. 105,) the court say, the better opinion seems to be, that the acceptance of negotiable paper on account of a prior debt, is prima fade evidence of satisfaction, and that you cannot recover on the old debt without some explanation, or giving some account of the note; and they refer to the cases already cited as establishing that doctrine.
. In Burdick v. Green, (15 John. 247,) the declaration contained several counts. To the common money counts and the indebitatus assumpsit and quantum valebant counts for goods sold, &e., the defendant pleaded, that after the making of the several promises in those counts mentioned, the defendant made his promissory note for the same identical promises, and delivered it to the plaintiff, which note the plaintiff received in full satisfaction of the promises, and that the plaintiff afterwards indorsed and delivered it to one Joel Ketchum for value received. To this plea the plaintiff replied, that Ketchum, before the commencement
This opinion certainly goes the length of deciding that a plea of this description must show affirmatively that the note has passed beyond the control of the1 plaintiff, and is so circumstanced that it cannot be produced by him upon the trial, for the purpose of being cancelled; or it will not be held good. It substantially decides that this defence1 is not available by plea;- but must be matter1 of evidence under the general issue,, upon the1 trialand if the plaintiff
The next question is, whether the plaintiff was entitled to recover, under the common counts, the amount of the original note, for which the note declared on (and which was proved to be usurious) was given. The objection made to the recovery is, that the note itself, having been destroyed *by the parties, does not exist, and cannot be used as evidence of money had and received by the defendant; and the evidence showing that it was given for the debt of a third person, there was no cause of action against the defendant, prior to, and independent of the giving of the note. The destruction of the note is a matter of no importance. The note on which the suit was brought having been proved to be usurious, the plaintiff resorted, as he had a right to do, to the consideration of that note so far as it was not affected by the usury. What was that consideration ? It was the old note whioh was not attempted to be impeached; out which, on the contrary, was shown to have been given for a legal consideration; and a premium of 5. dollars for forbearance. That a promissory note is evidence of money had and received by the maker from the payee, and may he used as such upon the money counts, is admitted. It is then, in principle, the common case of an action for money had and received, &o., supported by proof of a promissory note, which is shown to have been destroyed by accident or misapprehension, or in any other manner, which does not amount to a legal satisfaction or discharge of it.
Suppose the case of a note thrown into the fire by mistake: the payee declares upon it, stating the special circumstances of the case; but on the trial, his proof establishes the giving of a note of a different date, or for a different sum; and which, therefore, does not support the special count; can there be a doubt that he could recover the amount of the note thus proved, under the common counts, without resorting to the original consideration of that note ? In such a case it is not the, note itself which constitutes the evidence; but proof that a note was given,, and accounting for its non-production.
The decision of the court below upon this point was, therefore, correct.
The next objection made to the recovery of the plaintiff below on the common counts, was, that the old note was not given for a pecuniary consideration; and, in addition to the evidence already given upon that point, the defendant below offered to show that the note was given for the debt of a third person, which debt was not for money, but for land sold by the plaintiff below to him. The evidence was excluded, and the objection overruled.
In this I am inclined to think the court erred. A negotiable promissory note is, prima fade, evidence of money had and received by the maker for the use of the payee, (Chit. on Bills, 470,) and, in this state, of any other bona fide holder of the note. (12 John. 90.) In England, it is doubtful whether the right of using a bill or note under the common counts, is not confined to the original parties. (Waynam v. Bend, 1 Campb. 175.) But neither in England, ñor in this state, has it ever been held that a note was conclusive evidence of the receipt of the plaintiff’s money, by the maker, or of an account stated between them; but I think a contrary rule is deducible from the English authorities. (1 H. Bl. 239; 3 B. & P. 559; 1 East, 432; 1 H. Bl. 602, per Eyre, Ch. B.; Chit. on Bills, 469, Phil. ed,
On this ground, alone, I think the judgment should be reversed.
*Savage, Ch. J., and Wo.odworth, J., concurred, except as to the effect of the original note as evidence under the common counts. They thought it conclusive, and that the judgment should be affirmed.
Judgment affirmed