Holmes v. D'Camp

Spencer, J. now delivered the opinion of the court. If there had been no count in the declaration on an insimul compatassent, I should have considered the first exception as fatal, notwithstanding the cases* cited by the counsel for the plaintiffs. On examination, those cases will be found not to contradict the proposition, that in declaring on a debt contracted with the plaintiffs and another, since deceased, his death, and the survivorship of the others should be alleged; for, otherwise, it would not appear to be the same promise. The defendant, in September, 1802, stated an a° count exhibiting the balance due from him, claimed by the plaintiffs. Formerly, the stating of an account was conside ed so deliberate an act, as to preclude any examination inv> the items.† A greater latitude has of late' prevailed, and any errors may be shewn and corrected; but still the stating of an account, is regarded as a consideration for the promise; and it is in the nature of a new promise. Technically speaking, a negotiable note is not an extinguishment of an antecedent debt; yet it has been deemed ah extinguishment sub modo. In the court of King’s Bench,§ a negotiable note or bill of of exchange, has been held to [37] be an extinguishment of a simple contract debt, the defendant being liable to pay the money to a third person.— Though this principle is not to be found in any adjudged case, yet it is so reasonable and necessary a rule, in a commercial country, that I am disposed to adopt it, with this qualification; that where a negotiable note has been given for a prior debt, not to suffer the plaintiff to- recover on the original consideration, unless he shews the note to have been lost, or produces and ^egoeslff-it at the trial. The poxver of attorney to Mr. Dwight, did not, in its terms, authorise him to compound or take security for the debt in question; and the testimony offered to prove that it did give him that authority, xvas of the most slender kind, the mere understanding of the general creditors of Seymour and D'Camp. 'I he judge, at the trial, very properly rejected this evidence; and if the plaintiff will now stipulate to cancel and file xvith this court, the note given to them by the defendant, the present motion ought not to prevail, otherwise, I think it ought to be granted.* Judgment for the plaintiff’s. Footnotes [*] 2 Durnf. and East. 476. Smith v. Barrow. 5 Durnf. and East. 493. Slipper, et alia, v. Stedstone. 6 Durnf. and East. 582. French v. Andrade. [†] 1 Durnf. and East. 40. Truman v. Hunt. [§] 2 Bac. Ab Debt. (G.) 290. Gwillim’s Ed. See also, Bac. Ab. Vol. 1, p. 281, note, and 5 D &. E. 513. Kearslake v. Morgan. [*] Thcounsel for the plaintiffs produced the note, cancelled, and filed if with the clerk.