Lazier v. Nevin
3 W. Va. 622
W. Va.
1869
Check Treatment
Maxwell, J.

The first cause of error assigned is, that the court erred in allowing the plaintiff to withdraw the issues on the 4th, 5th and 8th of the pleas first filed.

No good reason has been advanced, nor is it easy to imagine one, why the defendant was or could have been prejudiced by allowing the pontiff to withdraw the issues. No surprise could have been occasioned to the-defendant on *627the trial because the cause was not tried at that term, and the pleas themselves were all bad. . •

The second and third causes of error .assigned are, that the court erred in sustaining the demurrer to the 4th, 6th and 8th pleas first filed, and to the five pleas last filed.

The pleas demurred to are in substance'the same, and will, therefore, be. considered together.

In the case of Roads vs. Barnes, 1 Burrows, 9, it was held that a promissory note cannot be pleaded in bar to an action upon a simple contract.

In the case of Cole vs. Sackett, &c., 1 Hill, 516, the same rule was maintained and pleas similar to the pleas in the case under eonsidei’ation were held bad .on demurrer. So that upon the authority of these cases the demurrer to the pleas was properly overruled.

The nest cause of error assigned is the action of the court in sustaining the demurrer .to the evidence.

The memorandum of Nevin, made part of the defendant’s evidence, shows that on a settlement between Fitch and Nevin, Fitch was indebted to Nevin in the «nm .of 2,280 dollars, for which he executed his note to Nevin at four months, bearing date January 20th, 1868, and left the note sued upon, and another note, in Nevin’s hands as col-laterals. The plaintiff here insists that Nevin was not entitled to a judgment on this evidence, because it does not show that he ever returned, or offered to return, or deliver up to any one the Fitch note for 2,280 dollars.

It is well settled that in a suit against a party, when it appears that he has executed to' the plaintiff a subsequent note for the same debt, while the subsequent note is no bar to the suit, the plaintiff cannot recover without producing or accounting for the subsequent note. Cole vs. Sackett, 1 Hill, 516; Lobey vs. Barker, 5 Johns., 68; Alcock vs. Hopkins, 6 Cush., 484. But sueh cannot be the rule in a case like this, where a debtor obtains money for which he executes his own note, and, as a further security, places in the hands of the creditor a note on a third party.

*628It is hard to perceive what right the debtor in the collateral could have to control, in this case, the Fitch note. The creditor could pursue all his securities at the same time, but of course could have but one satisfaction. It certainly can make no difference to Lazier whether a judgment be obtained against him by the assignee, Nevin, or by Fitch, and nothing in respect to the Fitch note, short of its satisfaction, would be sufficient to prevent a recovery by Nevin. The question of usury in respect to the Fitch note cannot arise in this case, as the plea of usury applies only to the note sued on.

As to the application of payment insisted on in argument, the evidence shows that the settlement filed as part of the evidence was between Nevin and Fitch, in which Fitch is charged with the amount of two notes, the note sued on and his own note, for 3,000 dollars, endorsed by other parties, and if the application of the payments was still an open question, it would be proper to apply them to his own note, as has been shown already.

There can be no good ground for a new trial, as the evidence was sufficient to warrant the judgment on demurrer.

Upon the whole case I am of opinion that the judgment complained of will have to be affirmed, with damages and costs to the defendant in error.

^he President concurred.

Judgment affirmed.