Thomas v. Hodgson

The opinion of the Court was delivered by Rogers, J. — A promise to pay a debt by an insolvent debtor, which existed before his discharge, creates a new contract, upon which suit may be brought; the previous indebtedness being a good consideration for the new promise. Earnest v. Parke, (4 Rawle, 452.) And this is the cause of action in the declaration, inartificially set out it is true, but still so explicit and certain, as to be good after verdict; for a verdict aids a title, defectively set out, but not a defective title. (1 Bur. 301, 2 Bur. 1159.) The question whether the evidence supports the declaration, does not properly arise, as no objection of that kind was taken at the trial; and if it had been, the plaintiff would have had leave to amend. We give no opinion as to any illegality, or supposed want of consideration for the new promise, as that may become a subject for investigation hereafter. The plaintiff offered in evidence, a copy of an assignment made by Moses Thomas to Alexander M'Causland, dated the 4th January, 1834, and annexed to his petition for the benefit of the insolvent laws. Previous to this offer, he proved that Alexander M'Causland was the assignee named in the assignment, and that he never accepted it; and further, that a notice was served on Mr. Ingraham, to which ho made no objection, in the following words: [499] “William Hodgson v. Moses Thomas, District Court, March term, 1836, No. 463. “ Dear Sir, Please take notice, that you are required to produce upon the trial of this cause, the assignment of the defendant of the 4th January, 1834. Yours, &c. A. H. Hamilton, A.tt’y for plaintiff. To Edward D. Ingraham, Esq. Att’y for defendant.'” The presumption was, after proof that the assignee refused to accept the assignment, that the original assignment was in the possession, or under the power and control of either Thomas or his counsel. Nor is there any force in the other objections, that there was no proof, that it was a true copy, or that the original was ever executed, or if executed was lost. There is abundant proof of every particular which is required. It must be taken to be a true copy, as it is so stated by the defendant himself in his petition; and it is equally certain that the assignment was executed, as it was recorded in the recorder’s office; and whether it was lost, or in the possession of Moses Thomas, was entirely immaterial. It appears that the assignment, though not accepted by the assignee, was after its execution, recorded; and a doubt has been stated, whether a copy, unless it be a certified copy, can be received, as not being the best evidence in the power of the party. But this point we decline to decide, as we are of opinion with the plaintiff in error on another ground. The notice refers to an assignment by the defendant of the 4th of January, 1834, but omits to state what is surely material, to whom the assignment was made, or what was the nature of it. Its identity is only shown by its date,- and the allegation that it was an assignment made by Moses Thomas. It is absolutely necessary that the notice should describe the paper with reasonable certainty. Rose & al. v. King & al. (5 Serg. Rawle, 241.) I lay no stress on the point that the notice was served on the attorney, although the original may have been in the possession of the principal; as if any difficulty was intended to be made, it should have been suggested at the time the notice was served. Some doubts were entertained whether the copy referred to in the petition, may not, as against the petitioner, be viewed in the light of an original paper. On reflection, however, we have come to the conclusion that it was but secondary evidence, and not receivable, without notice in due form to produce the original assignment. On the ground of the want of sufficient certainty in the notice, the judgment is reversed and a venire de novo awarded. Judgment reversed, and a venire de novo awarded.