Vancleef v. Therasson

Parker C. J. gave an opinion of the Court in substance as follows. It is very clear that by the decisions of this Court, a few years since, in the cases of Little v. Little, in Essex, and Tappan v. -, in Hampshire, not reported, the amendment could not be allowed, for the note and the account were substantially different causes of action.1 What may be the [14] .aw of New York on this point it is unnecessary to determine, for we are clear that the action may be sustained without the amendment. The contract, having been made in New York with reference to their laws, it is to have the same effect here wh'ch it would have there,2 and it is manifest from a series of cases in the Reports of that State, that the note, being lost, cannot be viewed as an extinguishment of the antecedent debt, unless it were so expressly agreed, and that the receipt given by the plaintiff does not amount to such an agreement.3 Burdick v. Green, 15 Johns. R. 247 ; Tobey v. Barber, 5 Johns. R. 68. Judgment according to the verdict. Footnotes [1] Fairfield v. Baldwin, 12 Pick. 388; Morton v. Fairbanks, 11 Pick. 368 [14] Ball v. Claflin, 5 Pick. 303; White v. Snell, 5 Pick. 425; Swan v. Nesmith, 7 Pick. 220; Tenny v. Prince, 4 Pick. 385; Stone v. Swift, 4 Pick. 389; Eaton v. Whitaker, 6 Pick. 465 ; Holmes v. Holmes, 2 Pick. 23; Clark v. Lamb, 6 Pick. 512; Haynes v. Morgan, 3 Mass. R. 208; Brigham v. Este, 2 Pick. 425, Miller v. Clark, 8 Pick. 412; Phillips v. Bridge, 11 Mass. R. 246; Bean v Parker, 17 Mass. R. 603; Mooney v. Kavanah, 4 Greenl. 277; M'Lellan v. Crofton, 6 Greenl. 307, 328; Bogart v. M‘Donald, 2 Johns. Cas. 219; Putnam v. Hall, 3 Pick. 445; Bell v Austin, 13 Pick. 90. [2] Story’s Conflict of Laws, 274; Wallace v. Agry, 4 Mason, 344; Descadillas v. Harris, 8 Greenl. 298. [3] Van Ostrand v. Reed, 1 Wendell, 424; New York State Bank v. Fletcher, 5 Wendell, 85; Hughes v. Wheeler, 8 Cowen, 77 ; Glenn v. Smith, 2 Gill & Johns. 493; Booth v. Smith, 3 Wendell, 66. This seems also to be the true doctrine of the common law. Puckford v. Maxwell, 6 T. R. 52; Owenson v. Morse, 7 T. R. 64; Kearslake v. Morgan, 5 T. R. 513 ; Roades v. Barnes, 1 Burr. 9; The King v. Dawson, Wightwick, 32; Chitty on Bills, (6th ed.) 97 to 100; Hadwen v. Mendizabel, 10 Moore, 477; Bunney v. Poyntz, 1 Neville & Manning, 229; Putnam v. Lewis, 8 Johns. R. 339; Johnson v Weed, 9 Johns. R. 310; Pintard v. Tackington, 10 Johns. R. 104; Holmes v. De Camp, 1 Johns. R. 34; Sheehy v. Mandeville, 6 Cranch, 253; Wallace v. Agry, 4 Mason, 336; Elliot v. Sleeper, 2 N. Hamp. R. 525; Cheever v. Mirick, 2 N. Hamp. R. 376; Dennie v. Hart, 2 Pick. (2d ed.) 205, note (1); Chastain v Johnson, 2 Bailey, 574; Bill v Porter, 9 Connect. R. 23; Hutchins v. Olcott, 4 Vermont R. 549. So of the Civil law. 1 Domat, 515, bk. 4, tit. 3. § 1. So of the Scotch law. Thompson on Bills, 192 to 194. A different rule has been adopted in Massachusetts and Maine. In those States, however, the taking of such security seems to be only pnm& facie evidence of an absolute payment; the fact is open to explanation. Descadillas v. Harris, 8 Greenl 298; Maneeley v. M'Gee, 6 Mass. R. 143; Goodenow v. Tyler, 7 Mass. R. 36, Johnson v. Johnson, 11 Mass. R. 359; Chapman v. Durant, 10 Mass. R 47, Varner v. Nobleborough, 2 Greenl. 121; Greenwood v. Curtis, 4 Mass. R. 93, Whitcomb v. Williams, 4 Pick. 228, Watkins v. Hill, 8 Pick. 522; Reed v Upton, 10 Pick 525 Wood v. Bodwell 12 Pick. 269, 270.