1 Call 232 | Va. Ct. App. | 1798
This is an action of assumpsit, and the declaration contains two counts; one for money paid
Upon this testimony, which was produced by the plaintiff, it is submitted by the jury, whether it be legal and admissible evidence to support either count in the declaration.
I lay great stress upon the word support in the verdict; and, therefore, if the Court should be of opinion that the evidence is legal and admissible, as far as it goes, but that some further testimony is wanting to warrant a recovery upon either count in the declaration, judgment cannot be given for the plaintiff upon this verdict.
The particular-point now submitted by the jury, and which was much discussed at the bar, is, whether this testimony will warrant a recovery upon the general counts of indebitatus assumpsit in the declaration. But, if there be such a defect in the case submitted, as that a recovery thereon, will not be warranted under any count whatsoever, a decision, upon the point relative to the form of declaring, becomes unnecessary.
plaintiff could not have recovered; and, surely, the case is not different, when another mode of declaring is resorted to.
It is inseparably incident to the nature of a bill of exchange, that if the endorsee delays for an unreasonable time to notify the endorser of the non-payment, he thereby discharges him of his responsibility.
I am, therefore, of opinion, that, under the circumstances of this case, the defendant cannot be charged under any form of action, but that he is absolved by the conduct of the plaintiff. Which proposition essentially includes another, namely: that the defendant cannot be charged, on either count of the present declaration.
This view of the subject, upon the defect of evidence in notifying the non-payment to the endorser, within a reasonable time, does not decide a question similar to this in other respects, but where such proof is supplied. Should
It is not necessary to decide as a general question, the' point relative to the sufficiency of the testimony to support the counts in the declaration.Por, upon the papers themselves, I think the plaintiff was not entitled to recover the money under any form of action. Nine years appear to have elapsed^ after the protest was made, before any notice of it was given to Can’; and, in the mean time Leitch, who was at first in good circumstances, dies, his estate is wasted, and the money is lost. Under this view of the case, on whom is it most reasonable, that the loss should fall ? On Carr, who was an innocent man, guilty of no fault; or, on the plaintiff, whose culpable negligence, and unaccountable delay, has produced it ? It is one of the first principles of justice, that he whose negligence has occasioned a loss, ought to bear it. But, it was said, that the letters of Carr ought not to be admitted as proof of the loss. Those, who make that objection, would do well to remember, that it was the plaintiff who produced them; and, therefore, he cannot object to the defendant’s making what use of them, he thinks proper. For, they are not to be garbled, but must be taken altogether, and not partially. I am, therefore, extremely clear, that upon the merits of the case, the plaintiff was not entitled to recover.
It consequently becomes unnecessary to decide as a general proposition, the question submitted by the verdict.But, if it had been, I might perhaps have thought, (though I give no opinion,) that circumstanced as this case is, the evidence without auxiliary testimony, would not have been entirely free from objection, under either count in the declaration. In Mackie v. Davis, [2 Wash. 219,] and M’Williams v. Smith, [ante. 123,] there were special statements setting forth the nature -of the demand, besides the common money counts. Which had this, at least, to recommend them, that they gave notice to the defendant, and enabled him to come prepared to contest the demand; whereas, the other practice is calculated to surprise and throw him off his guard. However, as before observed,
I, therefore, concur in the opinion, that the judgment should be affirmed upon the merits of the case.’ Por, I shall never be inclined to support the idea, that because the strict words of a finding may apparently confine the verdict to a particular enquiry, a plaintiff, who upon the broad grounds of justice and law, has no title to recover, shall be allowed to take his adversary by surprise, and overthrow an honest defence, by a - critical exposition of the unskilful words of a jury.
The question, whether a general indebitatus assumpsit will lie on a bill of exchange, note or bond assigned, as between immediate privies, took up much time in conference, since the counsel on both sides argued it at large, and I have an opinion upon it, but it being unnecessary to decide it in this case, the point is reserved ’till a case shall arise, where it becomes necessary, and there may be a full Court. At the same time, I cannot forbear to mention, that I do not like this new practice of general counts much, as they tend to surprise the other party, without giving him an opportunity of preparing for a full defence. In England, the usual practice is to insert a special count, and the general money counts are only resorted to, on account of some defect of form in the special count, which avoids the inconvenience of surprise; because, the adverse party has notice from the special count of the matter with which he is charged. Whereas, the general count does not give such notice.
But, what is the case before the Court ? Here, upon an indebitatus assumpsit, papers are offered in evidence to support the issue, which do not shew the plaintiff to be entitled in any form of action.
The papers are a bill drawn in September, 1774, by Deitch, in favor of Carr, and by him endorsed and remitted to Wood; protested in January, 1775; of which no notice is given to Carr, until September, 1784, above nine years afterwards. By this neglect, Carr’s responsibility, as endorsee, was at an end: And does he revive it
by any promise to pay or acknowledgment of the debt ? On the contrary, he positively refuses payment; and, for a good reason too, that by the delay he had lost his remedy against the drawer; solvent at the time of the protest, but then become insolvent.
Wood thus warned, lies by till 1792, eight years longer, and seventeen years from the date of the protest, when, Carr being dead, he brought this suit against his executors, as a chance of recovering, from their ignorance of the transaction, an unjust demand; and, by the general indebitatus assumpsit concealing the real case, so as to better the chance by surprise. In the language of Lord. Kenyon in the case of Stedman v. Gooch, Espin. Rep. 3, I consider the documents as mere waste paper, and think the District Court very properly decided; that they were not legal evidence. Of course, the judgment must be affirmed.
Judgment affirmed.
[* Turner v. Leech, 4 Barn, and Ald. 451.]
[* See Isom v. Johns, 2 Munf. 272. By the act oiFeb. 25,1819, e. 128, § 86, it was enacted, that “ in every action of indebitatus assumpsit, the plaintiff shall file, with his declaration, an account, stating distinctly the several items of his claim against the defendant; and, in failure thereof, he shall not be entitled to prove, before the jury, any item, which is not so plainly and particularly described in the declaration, as to give the defendant full notice of the character thereof.” i?. C. p. 5X0, ed. 1819,3
[* De La Torre v. Barclay et al. 1 Starkie N. P. R. 7.]