| W. Va. | Jul 15, 1867
This was an action of debt on a bond payable on demand, against three obligors, who pleaded non est factum. The plaintiffs in the court below, after proving the signature of
The bond was a joint and several obligation, and had the obligor liuckman, whose signature had been proved, been sued alone, a recovery might have been had against him on the evidence adduced, and since by the statute, Code 1860, chap. 177, sec. 19, a like, recovery might have been had against the same obligor in this action, upon the same evidence, it was proper-to permit the evidence to go to the jury for that purpose, and would have been error in the court to have excluded it from the jury as required by the defendants in the court below.
Had the court been asked to instruct the jury that the said bond, so proved against one, and not against the other obligors, was only evidence against the one and not against the others, it would certainly have been the duty of the court to have done so. But no such instruction having been asked, no objection can bo raised on that account to the failure of the court to do what it was not asked to do. But the counsel for the plaintiffs in error, confidently asks, that, “although there was no error in allowing the note to go in evidence to the jury because it was evidence against Ruck-man, yet how can it be claimed that there ivas no error in the verdict of the jury and the judgment of the court against the other defendants, when the record shows that there was no evidence against them on the only cause of action set out in the declaration?” The answer is:
First. That the record only shows that the signature of Ruckman being proved, the note was offered in evidence, without proving the signatures of Combs and Haines, non con-stat, but that it was proved before the jury, to have been executed by the attorney in fact of Combs and Haines in their names, or by Ruckman for them, and in their names,
Second. The bill of exceptions does not undertake to set out all the evidence in the cause, or all the facts proved, but only enough to show the pertinency of the objector to the admission of the note as evidence at the time it was offered. But non constat, that afterwards in the course of the trial, the signatures even of the parties, were not proved.
Third. No motion was made for a new trial, and the verdict will not, in the appellate court, be presumed to be without evidence, but the party must be taken to have acquiesced in it.
Fourth. No motion was made in arrest of judgment in the court below, upon the ground that the verdict was without evidence as to the said Combs and Haines, a fact which that court might have known, but this court cannot from the record as it appears here.
It would be novel indeed for an appellate court to reverse a judgment and set aside a verdict admitted to be right as against one of three defendants, as not warranted by the evidence as against the other two, when the record did not pretend to show all the evidence in the cause, and without a motion for a now trial, or a motion in arrest of judgment in the court below.
Another objection is taken to the verdict and judgment of the court below, viz: That as the bond ivas payable on demand, it was not due till after demand, and that while the suit was demand, yet interest could not bo given till demand, and as no other demand was shown than the suit, interest could not be allowed earlier than the date of the suit. But the doctrine is now too well settled, otherwise to be disturbed. See 6 Rand., 101" court="Va." date_filed="1828-01-23" href="https://app.midpage.ai/document/payne-v-brittons-6805884?utm_source=webapp" opinion_id="6805884">6 Rand., 101, Payne vs. Britton; and 2 Bibb., 99, Cotton vs. Reuvill. In the former case, Judge Green said: “But an obligation to pay money on demand is evidence of a present debt payable instemter, and the writ is a demand, which entitles the plaintiff to the penalty. The interest is allowed, not because the penalty is forfeited, but
The instructions given by the court embraced substantially the instruction asked by the defendants in the court below. I think, therefore, that there was no error in the judgment of the court below, and the same ought to be affirmed.
Judgment aebtrmed.