Majority
p. 28Hallett against Holmes.
Headnote
JVh£°acórü-™u”pouse?obe the whole1'de-ciaration, but Sad ofit,itisWhere the filaded'and a whkh'tfc’ is and^demuw tfngentddama-fd^nlhe trial ?áue6 anTXe towardsisaf" argued, the Court will not allow thejoarty piea”enother-Murrerhadde" beforethe8trfa1
anotehsueethe maker, and issue is -joined m the cause, and -the plaintiff af-towards takes ^o 'gnmit and fendanta^típu-sue°execuUon mentrnbí el-tered up on the cognovit, until a certain day thereafter, before which ingtothe practfce^fthe could not have brought the cause to trial . ... ... „ and obtained a judgment, this is aot such an indulgence or giving time to the maseras will discharge the endorser. ‘
THIS was an action of assumpsit on a promissory note made by Joseph E. Haff, the 26th September, 1818, payable the defendant, ninety days after date, and endorsed by him to the plaintiff. The declaration contained a counton the promissory notes, and counts for money paid, laid out, &c. money lent, and money had and received, &c. ' The defendant pleaded, 1. Non assumpsit. 2. That the plaintiff ought not to have and maintain his action, &c. because, &c. that after an action was brought in this Court against Haff, the maker, and before this suit was commenced, theplain-*iff> without the consent or knowledge of the defendant, sub-stltuted the following contract in the place and stead of the Pr0miss0IT note, and agreed with Haff, in consideration that he, the said Haff, would give to the plaintiff a relicta . . M . , . . .J; and cognovit in that action, he, the plaintitr, would give indulgence and further time of payment to the said Haff, of the said note, with the interest; and the defendant averred, that in pursuance of this agreement, and without the knowledge aQd consent of the defendant, the said Haff signed and de-INered to the plaintiff, a relicta and cognovit in that action, for sum ¿ug on the note, with interest, being 847 dollars „ aHd 47 cents ; and the plaintiff, m consideration thereof, de-r ..... hvered to the said Haff an agreement and stipulation in writing, by which he gave indulgence and further time to the said Haff for the payment of the said moneys, &c. without notice to the defendant, from the 14th of April, to the 21st day of October, 1819, before which last mentioned day,, the said Half became insolvent, &c. and absconded from m * the state, &c. all which the defendant is ready to verify, &c. 1 ■ J wherefore he prayed judgment, &c. that the issue joined in the suit against Haff was an issue in fact, and triáble only by a jury in the county of Albany, where the venue was laid, and that at the time of receiving The plaintiff replied,
p. 29
the relicta and cognovit mentioned in the ScRid plea, such was the state of the suit, that by the rules and practice of the Court, &c. the issue could not be brought to> trial until the 5th day of October, 1819, and no judgment could have been obtained or execution issued, except by means of a! relicta and cognovit, at any time before the 21st of October'f 1819 ; and that the attorney of the plaintiff in that suit,, in ord'ér to obtain a lien on the land and real estate of the said tícfft sooner than by the rules and practice of the Court, &e. could •otherwise have been obtained, did receive the said relicta and cognovit on the 14th of April, 1819, and containing a proviso that no execution should be issued on the judgment to be entered up thereon, until the 21st of October, 1819 : and gave to the said Haff a. receipt for the said relicta and ■cognovit, with a stay of execution, &c. averring that this was the only agreement made with the said Haff, and traversing several matters contained in the plea, and concluding with a verification, &c.
To this replication, the defendant demurred, and assigned causes of demurrer : 1. That it does not deny that issue was joined in the said suit against Haff, but to evade the force thereof, attempts to put in issue the venue laid, and time of trial, the time of judgment, &c., and the rules of the Court, and the statute, &c., all which matters are not necessary to be alleged, and which are no answer to the plea,. 2. That the replication admits the receiving of the relicta and cognovit, and the agreement in writing, as alleged in the plea, but, nevertheless, traverses the inferences and conclusions of law arising from those facts. 3. That the replication admits the facts set forth in the plea, and, afterwards, traverses the same facts. 4. That the plaintiff traverses the whole matter of the said plea, and concludes with a verification, whereas the replication should have concluded to the country, &c.
The demurrer was submitted to the Court without argument.
delivered the opinion of the Court. The plaintiff takes an exception to the plea, that it purports to be an answer to the whole declaration, and is only an answer
p. 30
to part. If the objection is true, in point of fact, the law is tvell settled, that the plea is bad. (1 Saund. 28. note 3. and the cases there cited. 1 Chilly Pl. 510.) It is an established rule, upon the argument of a demurrer, to give judgment against the party whose pleading is first defective in substance. The plea begins with an answer to the whole declaration, but it confines the agreement set up to the giving a cognovit on the note only, and it does not go on 'to state, that judgment was entered on that cognovit; it makes no answer to the plaintiff’s counts for money paid and laid out, for money lent, or for money had and received. We cannot know but that these counts embrace substantive and distinct causes of action. The matter pleaded extends only to the note, and leaves the other counts unanswered. Had the plea begun only as an answer to part, and answered only a part of the declaration, the plaintiff must have taken his judgment for the part unanswered, by nil dicit; but here the defendant says, “ that the plaintiff ought not to have, or maintain his aforesaid action thereof against him, because,” &c. thus, beginning his plea to the whole cause of action, and answering only to the first count. This objection is, therefore, fatal.
If the plea was good in substance in other respects, and a meritorious plea, the Court would ordinarily give the party leave to amend; but, it appears, that contingent damages have been assessed on the general issue, upon an inquest at the last Rensselaer circuit. In Robinson v. Rayley, (1 Burr. Rep. 321.) a motion was made to withdraw -the demurrers and amend, after argument, and before judgment, and after a trial and contingent damages. Lord Mansfield said, no case of such an amendment after trial had been cited, and that he took it for granted, none existed. Mr. Justice Denison said, that where the demurrer is first argued, the Court will give leave to amend; but there never was an instance of amending an issue at law after a verdict had been found upon issues in fact, and contingent damages assessed on the demurrers.
Upon the merits of the case, it is unnecessary to speak 5 but I have no hesitation in saying, that if we are to regard the facts stated in the replication, as the real facts in the
p. 31
case, there is no pretence for saying, that the plaintiff gave time or indulgence to Haff\ the drawer of the note. It is not brought within the case of English v. Darley, (2 B. & P. 61.) There, the endorser having proceeded to judgment against the acceptor, and taken out execution, received a sum in part payment, and took his security for the remainder, payable in instalments j and it was held, that he was thereby precluded from afterwards suing the endorser. Lord Eldon said, “ if a holder enter intoan agreement with a prior endorser in the morning, not to sue him for a certain period, and then oblige a subsequent endorser in the evening to pay the debt, the latter must immediately resort to the very person for payment to whom the holder bad pledged his'faith, that he shall not be sued.” This is not such a case ; no delay was granted; and the confession of judgment was a benefit to the endorser, because, if entered up, it acquired a lien on the realty, and the only effect of the arrangement was, that the judgment was expedited.
Judgment for the plaintiff.
p. 34
delivered the opinion of the Court. The