10 N.H. 505 | Superior Court of New Hampshire | 1840
The only question in this case is, whether the tax of $⅜3 -24, assessed to Newell in the town of JafFrey, in the year 1828, has been paid. It is provided, in the eighth clause of the first section of the act of the 16th of Dec., 1828, entitled £ian act relating to the settlement of paupers,” (N. H. Laws 300, ed. of 1829,) that !1 any person, of the age of twenty-one years, who shall hereafter reside in any town in this state, and, being taxed for his poll for the term of seven years in succession, shall pay all taxes legally assessed on his poll and estate during the said, term, shall be an inhabitant of said town.” And the court having instructed the jury that the note was not to be considered as payment of the tax for the year 1828, the question arises, whether the instruction of the court was correct.
It has been held for many years, in Massachusetts, to be a presumption of law, that a negotiable promissory note, given for the amount of a debt due, operates as payment thereof, unless the contrary appears from the facts of the case. In the earliest reported case on this subject, Thacher vs. Dinsmore, 5 Mass. 299, Parsons, C. J., says : “ It has long been settled as law in this state, that a negotiable note, given in consideration of a simple contract debt due, is a discharge of the simple contract.” This doctrine is recognized in the cases referred to by the counsel for the defendant, and also in Chapman vs. Durrant, 10 Mass. R. 51; Johnson vs. Johnson, 11
These cases derive their authority, therefore, only from the practice in Massachusetts, and the doctrine contained in them is not there assumed to be recognized at common law.
A similar rule has been established in Maine, Wise vs. Hilton, 4 Greenl. 435; Homes vs. Smyth, 4 Shepley 177 ; and in the former of these cases Mr. Justice Weston considers this rule as an exception to the common law doctrine, that one simple contract is not discharged by another.
But it has been uniformly held, in England, that a bill of exchange, or promissory note, is of itself no discharge of a preexisting debt. In the case of Clark vs. Mundal, 1 Salk. 124, it is said that “ a bill shall never go in discharge of a precedent debt, except it be part of the contract that it should be so.” And in Ward vs. Evans, 1 Ld. Raym. 928, Holt, C. J., says: “ paper is no payment where there is a precedent debt; for where such a note is given in payment, it is always intended to be taken under this condition — to be payment, if the money be paid thereon in convenient time.” And the creditor receiving the bill was not bound to present it for payment, or give notice of its dishonor. But by the Stat. 3 & 4 Anne, ch. 9, § 7, the acceptance of such a bill in satisfaction of a debt shall be deemed payment to the creditor, if he do not take his due course to obtain payment of it. And upon the principle that the acceptance of a security of equal degree is no extinguishment of a former debt, it was held, in Roades vs. Barnes, 1 Burr. 9, that a promissory note cannot be pleaded in bar to an action on a simple contract, though a bond may, because it extinguishes the debt. In Kearslake vs. Morgan, 5 T.R. 513, it appears to be held, that a special agreement to receive a bill in satisfaction, is necessary in order to make it payment. In Puckford vs. Maxwell, 6 T. R.
Where, however, a negotiable note has been given, the plaintiff cannot recover in an action for the original demand, unless he produces the instrument, or proves it in his possession or control, or shows that it has been destroyed. Dangerfield vs. Wilby, 4 Esp. 159; Hadwen vs. Mendizabel, 10 Moore 477.
The same principles have been recognized in New-York in a long series of decisions. Where a negotiable note has been given for a simple contract debt, the plaintiff may recover on the original contract, if he shows the note to be lost, or produces and cancels it on the trial. Holmes vs. DeCamp, 1 Johns. 34. And it is said, in the case of Tobey vs. Barber, 5 Johns. 72, to be “ a rule well settled, and repeatedly recognized in this court, that taking a note, either of the debtor or a third person, for a preexisting debt, is no payment, unless it be expressly agreed to taketheuote as payment, and to run the risk of its being paid.” Schemerhorn vs. Loines, 7 Ditto 313; Johnson vs. Weed, 9 Ditto 310; Angel vs. Felton, 8 Ditto 149; Putnam vs. Lewis, 8 Ditto 389; Hughes vs. Wheeler, 8 Cowen 77. In the case of Olcott vs. Rathbone,
The principle recognized at common law has also received the sanction of this court. In Wright vs. The First Crockery Ware Co., 1 N. H. Rep. 281, it is said, by Mr. Justice Wood-bury, that “ if the creditor receive the note or bill of his debtor, or of a third person endorsed by his debtor, either for a precedent debt, or a debt arising at the time, it is not presumed to have been received in satisfaction.” And the rule in Massachusetts is characterized as “ an unnecessary departure from the common law.” And in Elliot vs. Sleeper, 2 N. H. Rep. 327, the same judge says : “ We have settled, after much deliberation, that the receipt of a note is not payment of a prior debt, unless by express agreement” ; and reference is made to the case of Wright vs. The Crockery Ware Company.
There is no evidence in the case of any special agreement to receive the note in payment of the tax. The fact that Newell’s name was crossed on the collector’s list is no stronger evidence that the nbte was received as payment, than the delivery of the old note, upon receipt of the new one, in the case of Olcott vs. Rathbone, above referred to. Nor is there any thing in the case which renders it probable even that any agreement was made. The probabilities are all the other way ; for, considering the situation of Newell, the presumption is that nothing less than actual payment would satisfy the selectmen, anticipating, as they reasonably might, the possibility that he might become a burden to the town, by gaining a settlement by payment of taxes. And we are of opinion that we cannot, consistently with the authorities, hold the acceptance of the note to be a payment of the tax.
The act provides, that any person, &c., who, being taxed for his poll, shall pay all taxes legally assessed, &c., shall become an inhabitant. Now this cannot be regarded as a merely arbitrary rule, invented solely to settle conflicting questions of legal right, and having regard only to the liabilities of towns, in their relation to each other ; for the rights of the pauper, as against the town, are likewise to be considered., If he pays his taxes, and thus contributes to defray the expenses of the town, he thus acquires a claim to be supported
Nor can a settlement be gained, where the tax is paid for the pauper by the collector, but without his request. The tax must have been actually paid by the pauper, or by another at his request. Wallkill vs. Mamakating, 14 Johns. 87.
These cases authorize the position, that in order to gain a
Judgment on the verdict.
Parker, C. J., did not sit.