Lord v. Staples, 23 N.H. 448

23 N.H. 448 | Superior Court of New Hampshire | 1851

Gilchrist, J.

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 been often held that where the original liability has been extinguished by actual payment, it is immaterial in what description . of property the payment has been made. Where provincial notes have been received as money, they may be recovered in this form of action. Pickard v. Bankes, 13 East, 20. So may a bill of exchange. Wilkinson v. Clay, 6 Taunton, 110 In Ainslie v. Wilson, 7 Cowen, 662, the plaintiff was liable as indorser for the defendant, and conveyed land which was received as payment of the note. In was held that this was not a voluntary payment, for the plaintiff was liable to be sued by the holder of the notes. Woodworth, J., said, “ I have no doubt that as the conveyaace of the land was received in discharge of a money debt due from the plaintiff, it is in judgment of law to be considered the same thing as if the plaintiff had actually paid money.” And in Bonney v. Seely, 2 Wend., 481, it was decided that the payment of the debt of the defendants in land was sufficient to sustain the action for money paid by the surety. A tent in common who sells trees growing on the land and receives real estate in payment, is liable to his co-tenant in an action for money had and received. Mller v. Miller, 7 Pick., 133 ; Emerson v. Baylies, 19 Pick., 55.

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.

It is objected that the printed volume of the laws of Maine is not competent evidence to prove the regularity of the levy according to the laws of Maine. In the case of the State v. Carr, 5 N. H. Rep., 370, it is said that “ the seal of the State is of itself the highest test of authenticity. But other modes of proof are not excluded on this ground. And it seems that the acts of States may be proved otherwise than by a copy under the seal of the State.” In Thompson v. Musser, 1 Dall., 458, a printed pamphlet, purporting to be the laws of Yirginia, and to be printed by the State printers, was held to be competent ev-' idence of the law of that State. It was said by McKean, C. J., that “ such printed copies being of public notoriety, and relied on as genuine, have the presumption of authenticity in their favor and afford a reasonable satisfaction to the mind, of their truth and accuracy.” Where books purported to contain the laws of the province .of New-Brunswick, and there was evidence that they had been cited and read in the courts there, as laws in force, and as regulating the administration of justice, they were held to be competent evidence; Hhepley, J., saying, “ it is difficult to say that it is not as satisfactory to the mind as the exemplification of a roll found in the possession of the cusios rotulorum, would be, accompanied by the oath of the person making it.” This decision goes farther than it is necessary for us to go in the present case, for it holds that a volume containing the laws of a foreign country, and authenticated by parol evidence only, was admissible in evidence.

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 Tenterden admitted a copy of “ Les Cinq Codes ” of France, purporting to be published by authority of the- government of France, and said by the French vice consul to be the book on which he acted in his official capacity. In Middleton v. Janverin, 2 Hagg. Cons. Rep., 437, a marriage was solemnized at a town in the Austrian Low Countries, the law of marriage there being regulated by the decree of the council of Trent, made in the year 1563. To prove that this was the law of the United Provinces to which the town was subject, the testimony was introduced of four advocates of the court of judicature at the Hague and of four advocates of the courts in Austrian Flanders. Sir W. Wynne said “ the decrees of the Council of Trent are in print and in every body’s hands ; and the particular parts of the laws which are referred to by the advocates, are copied into their opinions therefore I think there is every evidence of authentication and every ground the court can have to believe that such ordinances and such laws as they mention, were actually, by proper authority, published and were at the time in question valid and in force.”

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 the present case to decide that a volume of foreign laws would be admissible on such an authentication, although recent decisions tend that way. It is sufficient for this case, for us to hold that the volume of the laws of Maine was properly admitted.

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 held that an office copy was admissible. Little v. Paddleford, 13 N. H. Rep., 167 ; Woods v. Banks, 14 N. H. Rep., 109. Under the circumstances we think the copy was competent evidence to show the liability of the plaintiff as surety for the defendant.

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.

The verdict was taken for all the sums claimed. The plain, tiff is entitled to recover $330.08 but the case provides that the verdict is to be set aside, if either of the sums should not be allowed.

Verdict set aside.