Chamberlain v. Gorham

Headnote

A party in .merest may be a witness Com™/the loss of the note, or which^h/suit order tointro” duce parol fury* Of the contents of such note, or instrument.

Where anote is not neassignee’ takes i*> subject^ to existing be‘¡nal” ‘parties at the time of ment.

A noise accompanying a nerai°f ‘teue" ought to be so particular as to enable the to meet the such notice, comeprepared

IN ERROR, to the Court of Common Pleas of Seneca f county.

Gorham brought an action of assumpsit against Chamber lain, in the Court below, and declared on a promissory note made by the defendant (C.) to the plaintiff, (G.) for dollars, payable in four years after date. The note was not made payable to order, or negotiable. The decíaration averred a loss of the note, and contained the usual money countS. *

At the trial, Jacob Fagleman was called as a witness for the plaintiff, and testified that he was the party benefiinterested in the note, which he received of Anthony Snyder, for a horse; that it was dated November 9, 1816, for 100 dollars, payable three years after date, to the plain Gorham. The plaintiff then called A. Snyder as a witness, who testified, that the note in question, with others, was given by the defendant to the plaintiff, as part of the consideration money, on the sale and conveyance of land, and was dated November 9, 1816, for 100 dollars, payable to the plaintiff, but not negotiable, three years after date, . „ lhat the note was assigned to him, soon alter it was made, in- December, 1816, and, in January, 1817, forbade him to pay the note to any other person. That soon after such-notice, the witness transferred and delivered the note to an<^ that he gave notice of the transfer to the defendant, Jacob Fagleman, in payment for a horse. The defendant objected to the evidence, on the ground that the note, the existence of which was proved, varied from the one described in the plaintiff’s declaration, as having been lost.

But the Court decided that the evidence was admissible, under the money counts»

The defendant then offered to prove, by way of defence, that when he gave the note in question, (which was for the price of land bought of the plaintiff,) the plaintiff gave hint a covenant, that if there should appear to be ariy judgments, or liens on the land, the defendant might pay the amount of such incumbrances, and that such payments should operate to discharge and satisfy the note j and that, in fact, there were such judgments which bound the land | and that he had been obliged to pay, and had paid, more than the amount of the note, to redeem the land»

The plaintiff objected to this evidence% I» Because, it could be no defence against the assignee, who was the real plaintiff, and who had given notice of the assignment, &e« 9» Because the evidence was not admissible under the notice subjoined to the plea of the general issue, which was, in general térros, that the defendant would prove that there were divers judgments, at the time of the sale of the land, &c» outstanding against the plaintiff, which were a lien on the land, &e» 5 and which the defendant was obliged to pay, and did pay, in order to prevent a sale of the premises, &c»; but without specifying any particular judgment, so as to enable the plaintiff to know in whose favour, at what time, and in what Court, such judgments were obtained, so as to enable Mm to be prepared to prove that they were fraudulent, and had been reversed, or otherwise satisfied and vacated»

The Court decided that the notice was defective, for want of such specification $ and the evidence was, accordingly, .rejected. The jury found a verdict for the plaintiff, for the amount of the note, on which the Court rendered judgment.

On the return to the writ of error, the cause was submitted to the Court, without argument»