Haines v. Stauffer

The opinion of the court was delivered, by Burnside, J. There was no error in the court admitting the evidence of Greorge Leaman, who proved that the defendant declared that he would pay Major Haines, .who had been his friend, and he would not let him stick. The time of this declaration, as well as the subject matter of it, were for the jury, under the care and direction of the court. The evidence was admissible in accordance with the ruling of this court in many cases. In Kingston vs. Wharton, 2 S. & R. 208, it was held that where a debtor, previous to his bankruptcy, promises a particular creditor to pay the debt, when he shall be able, his certificate of a discharge under the act of 1800, is no bar to an action on the new promise, although the original debt might have been proved under the commission; nor need the new promise be made to an agent of the creditor, to give a good cause of action; McKinley vs. Okeson, 5 Barr 369. The principle is further illustrated in Comfort for Milliken vs. Eisenbise, decided in Harrisburg, in May last, but not yet reported. It is there held that a promise by a bankrupt to pay a debt discharged by certificate, is binding, though not made to the creditor, or his authorized agent. We think that the evidence was properly admitted. The second error is to the charge of the court. Upon a careful examination of the evidence and the charge, we see no error. The jury were' instructed that the defendant’s signature to the note was proved in the usual way. The defence and allegation of the defendant was, that the note in suit, which bore date subsequent to the discharge and,certificate under the bankrupt law, had been altered in its date, from a period prior to the discharge, for the purpose of avoiding the effect of the bankruptcy. The face of the note exhibited no evidence Of the alteration to sustain this allegation. The defence rested solely on the alleged declarations of Haines, as proved by Morton and Peck, that he held a note for $600, dated prior to the proceedings and discharge in bankruptcy, and there was no way to recover it, unless he got a new note from Stouffer. The case of Haines vs. Stauffer, in 10 Barr 363, is not inconsistent with the ruling of this case. There, the court submitted as a fact to the jury, the ingenious suggestion of the defendant’s counsel, of which there was no evidence. The determination of this court was, that where a state of facts could not be inferred on a demurrer to evidence, it was error to submit their determination to a jury. I think the case was fairly put to the jury, under the evidence, and in accordance with the principles settled by the Supreme Court ; and the jury were instructed, if they found the note in suit given by the defendant as it purported, the plaintiff was entitled to a verdict. If it was not given as it purported, or its date altered, the plaintiff ought not to recover. [544] A court has no right to submit a point assumed by counsel without some evidence from which it might be fairly inferred. The learned counsel had requested the court to instruct the jury on some ten points — which the court. refused to notice, because they were not furnished' to the opposite counsel, agreeably to the rule of the Common Pleas, and because the instructions, in the general charge, were all the case required. The Common Pleas has a right to make rules, regulating a request for instructions on points. Many cases have been reversed, in this court, on points put and answered by the court, near to, or at the close of a charge, artfully put by ingenious and able counsel, which had not • been considered by counsel on the trial, or carefully considered by the judge. This is a practice of professional skill with which I have been long familiar. The courts owe it to themselves, as well as to suitors, fo make .such rules as will prevent surprise, and enable them to answer upon reflection, and without a waste of the public time. Here the rule of court had not been complied with, and the defendant’s counsel were not entitled to an answer. The judgment is affirmed.