23 N.H. 448 | Superior Court of New Hampshire | 1851
In this case it appears that in the month of April, 1846, the plaintiff signed a note for the sum of $500, as co-surety for the defendant, with MeCrillis and Gerrish, payable to the Savings Bank in six months. At the May term, 1849, of the district court for the county of York in Maine, the bank recovered judgment on the note, against the plaintiff. An execution was issued on the judgment and levied upon the plaintiff’s real estate in the county of York, which was appraised at the sum of $830.08, and set off in part satisfaction of the execution. The present action is for money had and received and for money paid, and the defendant contends that as the plaintiff has discharged the defendant’s debt with his land, and not with money, he cannot recover in this form of action.
Where sureties satisfied the debt of their principal by giving their note to the creditor, who accepted it in discharge of the original contract, it has been decided in this State to be as much a payment, in respect to the principal, as if the money had been actually advanced. Pearson v. Parker, 3 N. H. Rep., 366. It is said by the court (Karris, J.,~) to be “ immaterial to the defendant in what way the plaintiffs satisfied the debt, provided he were relieved from his liability.” In the case of Randall v. Rich, 11 Mass., 494, a negotiable promissory note was indorsed to a lessor, as collateral security for the rent of the premises leased, and he sued the promiser in his own name, and caused the execution to be levied on the debtor’s land. It was held that the debtor might recover in an action for money had and received the balance of the note, after deducting the rent in arrear. The satisfaction of the execution, it was said, ought to be considered as a payment of the money, and although land was taken, it was taken at money’s worth, and the debt which might have been exacted in money at all events, had been discharged. Although it is said it must appear that money has actually been advanced, the expression is' to be understood that nothing short of actual payment will support the count. It has
The general rule is often stated to be that to maintain the count for money paid, there must be an actual payment of mon, ey.
But this rule has been so far departed from, in many cases and particularly in the case of a surety, that wherever the property of the surety has been applied and received in payment of the debt of the principal, the value of it may be recovered under the count for money paid. This class of cases includes the present, and our opinion is that the appraised value of the plaintiff’s land, set off upon the executiou may be recovered under this count. In Power v. Butcher, 10 B. & C., 346. Mr. Justice PmJce says, “ The count for money paid cannot be maintaining without proving actual payment, or that which was equivalent to payment,” and the transaction had the same effect upon the interests of the defendant, and was as injurious to the plaintiff as the actual payment of money.
In the case of Raynham v. Canton, 3 Pick., 293, it was held that a volume purporting on its face to contain the laws of a sister State, was admissible asprimáfacié evidence to prove the laws of that State. It is said bp Parker, C. J., “ in England it does not seem to be settled that printed books of "foreign laws are to be received in evidence, and we do not mean to decide that the law of any country merely foreign may be so proved. But the connexion, intercourse and constitutional ties which bind together these several States require that this species of evidence should be sufficient until contradicted.” But in the case of Lacon v. Higgins, 3 Stark., 178; 1 Dowl. & Ry., 38, Lord
This question was much discussed in the Baron de Bodes Case, 8 Ad. & E. (N. S.,) 246. A French advocate stated that the feudal law had been put an end to in Alsace by the torrent of the French revolution, de facto, in 1789, and by the treaty of Luneville, de jure; and upon being asked whether there was not a decree to that effect, said that there was such a decree, of the 4th of August, 1789, of the National Assembly; and that he had learned this in the course of his legal studies, it being part of the history of the law which he had learned while studying the law. The decree itself was not produced. It was held by the court, Patteson, 3"., dissentiente, that the evidence was admissible, and the case of Lacon v. Higgins, before citodj was recognized as law ; and if the statement of the Contents of the decree was competent, a fortiori, a copy of the decree would have been admissible. The' courts in England take the same view in relation to the admissibility of a volume of foreign laws that is taken here in relation to the laws of any of the States of the Union. It is not, however, necessary in
As to the copy of the note, McCrillis says that he saw a note, signed by the defendant and himself, attached to a writ in the clerk’s office in Alfred. He gave a copy of the note, and it appeared to be signed by the plaintiff also, and to be similar in date, amount and time of payment to the note on which judgment was rendered as above mentioned. It does not appear that there was more than one note like this, or that there was any- other judgment between these parties. Now these facts leave no doubt that a note on which the plaintiff was surety for the defendant, was the foundation of the judgment on which the plaintiff’s property was taken. The plaintiff could not produce the note, for it had become a part of the records of a court in another jurisdiction, and was beyond his control. Thus it has been held that an office copy of a registered deed is admissible in evidence where the grantee is out of the commonwealth, and the' original deed is not under the control of the party producing the copy. Eaton v. Campbell, 7 Pick., 10. The practice was carried further in the case of Cocks v. Nash, 6 C. & P., 329, where there was a composition deed in the hands of a trustee, executed by the plaintiff, the defendant’s mother, and several of the defendant’s creditors, but not by the defendant, and which the defendant wished to give in evidence; but the plaintiff objecting, it was held that the trustee could not be compelled to produce it, on the ground that he held it for the plaintiff, who had an interest in it; but the defendant was permitted to give secondary evidence of its contents. In Burnham v. Wood, 8 N. H. Rep., 334, a copy of certain charges made on account against the defendant, on the books of a corporation out of the State, was admitted, on the ground that the corporal tion was beyond the process of the State, and that the books were not subject to the control of the witness. Where the assignee of a mortgage, residing in Boston, refused to annex it and the notes on which it was founded, to his deposition, it was
It is said that the levy was not made by the authority or for the benefit of the bank, and that, therefore, the plaintiff should not recover the appraised value of his land. But the plaintiff has lost his land and it has been applied to pay the defendant’s debt. Whether the suit was commenced at the request of the sureties, or not, is immaterial. It is also unimportant .whether the bank agreed to release thei-»’ interest in the land levied upon, if they could receive a. new note for $600. The bank, naturally enough, preferred money to land, and having the power to exact the money, were inclined to compel the parties to pay it. Whatever negotiations may have been had among the parties, the defendant has shown nothing to vary this fact, that the plaintiff’s land has been taken to pay the defendant’s debt. The letters prove nothing to the contrary. They show, only, that the bank did not mean to surrender any of their rights, and that the sureties desired to protect themselves against loss; but so far as the defendant is concerned, his debt is discharged to the amount of $330.08, which sum we think the plaintiff should recover.
But the plaintiff cannot recover the two sums of $73 and $60, which he has paid upon the $600 note. That note was merely substituted for the $500 note, and was not for a new debt. The bank agreed to release their interest in the land when the debt should be paid. The execution was levied upon the plaintiff’s and upon Gerrish’s land, the debt then amounting to about $600, of which the plaintiff’s land satisfied $330.08, and the remainder, $270, was paid by the levy on Gerrish’s land. The note for $600 was for the purpose of getting a release of the land, and the sums paid by the plaintiff, being $73 and $60 =o$133 before this suit was commenced and $190 since that time, amount to $323, a less sum than the value of his land. He has paid but one debt for the defendant by his land, and if he pays money to the bank for a release of that land, still he has paid but one debt for the defendant.
Verdict set aside.