The opinion of the Court was prepared by
This case is presented upon a report of facts and of certain questions of law, made by the District Judge by virtue of the statute of 1845, c. 172. A certificate of the clerk of the courts has also been forwarded to the Court, stating certain facts respecting the disposition of the money said to bo “ placed in the hands of the clerk.” The act requires, that the report of the case should be drawn up with the consent of the parties. This report states, that it was so drawn up. The parties thus assent to the facts contained in the report, and to those alone. They become by agreement the facts, upon which the case is to be decided; and no other facts can be considered by the Court. The writ and pleadings, unless made a part of the case, cannot be examined for the purpose of influencing the Court, without a departure from the facts, which are by agreement to be the basis of the judgment.
The facts reported are, that the suit was commenced upon a promissory note, made by the defendants on Sept. 4, 1844, payable at the house of the defendant, Lovejoy, on July 1, 1845. The action was entered August Term, 1845. No demand for payment was made before the commencement of
It is not necessary to aver and prove the presentment of a promissory note, at the time and place named therein to enable the plaintiff to maintain his action upon it. Bacon v. Dyer, 3 Fairf. 19; Wallace v. McConnell, 13 Peters, 136. If the maker was there prepared to pay it, that is matter in defence, to be pleaded and established by him. If the holder, subsequently to the day named, there demand payment, and do not obtain it, he may maintain an action against the maker, who was ready at the time and place named to make payment. Hence the defence is not perfected by proving such a readiness to pay it, and the first question must be answered in the negative.
The plea in such case, to be a good one, must state, that the maker was ready to pay the money at the time and place named, that he has ever since been ready there to pay the same, and that he brings the money into Court for the plaintiff. Opinions of the Judges in appendix to the case of Rowe v. Young, 2 Brod. and Bing. 180 ; Carley v. Vance, 17 Mass. R. 389. Wallace v. McConnell, 13 Peters, 136. No separate issue can properly be made or tried to ascertain, whether the money was brought into Court before plea pleaded. The plea containing an averment of readiness at all times subsequently to the day appointed, covers the whole space of time between that day and the time of filing it; and the fact thus
In this case the facts reported would not establish the truth of such a plea. The statement, that Lovejoy was ready to pay, extends only from the last day of June to the fifteenth day of July, in the year 1845. There is no proof of it from the last named day to the time, when the plea was filed in the month of April, 1846. Something more than the additional fact stated in the second question, was necessary to make the defence perfect; and that question must also be answered in the negative. Defendants defaulted.