McNair v. Gilbert

3 Wend. 344 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

Slight variances between the bill of particulars and the evidence will not be regarded. The true rule on the subject seems to be, that variances are immaterial, unless they are calculated to mislead the defendant. Such an effect could not have been produced from the claim of interest in this case; the objection was therefore properly overruled.

It did not appear whether the notes were negotiable or ■not. It seems to have been decided in this court, (10 Johns. R. 104,) that where a note is shewn to be lost or destroyed, and the fact does not appear whether it was negotiable or not, the court will not presume it to have been negotiable ; but if it appears to be negotiable, the plaintiff cannot recover in a court of law. (3 Cowen, 303.) The plaintiff, therefore, having shewn the existence and amount, and loss or destruction of the notes, and it not appearing that they were negotiable, he is entitled to recover, unless he is barred either by the statute of limitations or the defendant’s dis-e harge.

That the plaintiff was a petitioning creditor and assignee of the defendant in his insolvent proceedings, can place him in no worse condition than any other creditor of the insolvent. Where an insolvent debtor receives a valid discharge under the statute, he is legally exonerated from the payment of his antecedent debts, but the moral obligation remains. This obligation is a sufficient consideration for a new promise. (Cowp. 290, 554. 7 Johns. R. 37. 14 id. 178. 1 Chitty, 40 n.)

The promise in this case was abundantly sufficient. It was a message to the plaintiff that the defendant would pay him his debt and all he owed him in a few days. This was enough in reference to either the plea of the statute or of the discharge. As to the discharge, however, it appears that the insolvent had neglected, in the account of his creditors, to state the consideration of his indebtedness to the plaintiff. This omission, by the act of 1817, renders the discharge absolutely void. I am of opinion, therefore, that none of the objections are well taken, and that the plaintiff is entitled to judgment.