Livingston v. Romaine — 1 Ant. N.P. Cas. 199

Majority

p. 199

Livingston against Romaine.

Headnote

Payment of interest must be pleaded in debt on bond, it cannot be given in evidence under a plea, or notice of set-off, as so much money had and received.

This was an action of a debt on bond.

The declaration was in the common form.

The plea, after craving oyer of the condition, and setting the same forth, admitted that a certain sum of money was due, for principal and interest on the bond, at the commencement of the suit, and then averred that a large sum was due to the defendant for money had and received by the plaintiff for the defendant’s use, and for services rendered by the defendant, to the plaintiff’s family, as a physician. Plaintiff replied that more was due on the bond, &c.^[1]

p. 200

Under this plea, the defendant offered to prove that credit had not been given to him for one year’s interest on the bond.

p. 201

B. Livingston, and Robinson,

contended that such evidence was not admissible under the defendant’s plea; that, to avail himself of such proof, he ought to have pleaded payment.

p. 202

Golden and Bogardus,

for defendant. If the sum alleged to have been paid by the defendant as interest, has not been so applied by the plaintiff, it remains in the plaintiff’s hands as so much money had and received to the defendant’s use, and may be given in evidence under that part of his plea.

This was a payment, and can never, therefore, be deemed money had and received for the defendant’s use. The defendant ought to have pleaded payment.

p. 204

^[1] The plaintiff must take his judgment in the common form, and issue his execution at his peril for the sum actually due. If he issues his execution for a larger sum, the defendant may apply to the court, upon affidavit, to have it rectified.

Verdict for plaintiff.

B, Livingston and Robinson, for plaintiff.

Golden and Bogardus, for'defendant.

(2) (2) Payment of a bond must be pleaded, and it may be either, ante diem, ad diem, or post diem. The plea of solvit ante diem, may be pleaded where the condition of a bond is for the payment of money “at or before such a day; ” and in this case, if the plaintiff disputes the reality of any payment at all, he may reply, “that it was not paid at the particular day mentioned in the plea, nor at any time before or after that day,” and this will bring the point to the material and proper issue, “ whether it has been ever paid at all, or not.” Fletcher v. Hennington, 2 Burr. 944; 2 Wit. 173. The plea of solmitad diem, must be’ pleaded when the bond is conditioned for payment on a day certain, and this plea is good on such a bond, and is the proper plea, although payment Was made before the day. Bond v. Richardson, Cro. Elis. 142; Maule v. Wake, Salk. 608. Solvit post diem, is given by statute, 4 Am. c. 16, sec. 12. This plea was bad at common law, unless accompanied with an acquittance under seal; because, by the default of payment at' the day, the bond had become single, and the obligor could no longer avail himself of the condition, (Salk. 508,) but .inasmuch as he was relievable in equity, after breach, on paying the condition, with interest, which is there considered the true debt, the statute interposed. This plea is the proper and safe plea, when the obligor relies on presumption of payment from lapse of time. Moreland v. Burnet, 1 Str. 652.