Porter v. Nash

GOLDTHWAITE, J. — 1. The first count of the declaration instead of direct and positive averments of the date of the note, and its time of payment, contains a statement of these matters in a very loose and uncertain manner. It may be possible that the plaintiff was unable to furnish any more certain description of the note, having lost it from his possession, but this does not authorize a departure from the rule of pleading, which directs that all averments shall be direct, certain, and positive. [1 Chitty on Pleas, 236 to 421.] The statute of I828, respecting lost bonds, rules, &c. [Aikins’ Pigest, 329] does not change the rules of pleading in the ease of a lost instrument; it provides ,! that when any person may have or own, or may have owned any bond, &c. the right or title to the same remaining in him, and the same shall be or have been, destroyed by fire, or lost, by accident, he shall be authorized, opon first making oath in writing, of the loss of the bond, &c. and that the same has not been paid, satisfied, or discharged, to :sueat common law, and recover upon the same, on making proof of the contents of such bond, &e. so lost or destroyed. It is ••apparent, from this recital of the act, that if any change whatever was made of the law as understood at its passage, that the pleadings remain precisely as before. A party is not without a remedy, although he may not be able to state the date or other description of a lost note, with certainty and precision. Nor would the fact that the evidence also was uncertain, as to such a matter debar him from a verdict on the common counts, if the jury was satisfied of the amount remaining due, and of the distinction of the instrument or of its loss, if the adverse party •could not be injured, by its afterwards coming to the possession of another. We think it was incumbent on the plaintiff, when he framed the first count of his declaration, on the note, to aver its description with the same certainty as in other cases; the allegations of the loss of the note and of the filing of the affidavit, [455] does not cure the previous defect; the only use-of these averments being to dispense with oyer of the instrument, if it should be craved, under our rules of practice. The circuit court therefore erred in overruling the demurrer to the first count. 2. The objection to the deposition was properly overruled because the evidence afforded by it, was amply sufficient to sustain the action, on the common counts, although it might not, without other evidence, be satisfactory to support the first count. And for a similar reason, the refusal to give the instructions requested, is without any legal objection; as they went to the whole case, when, (if they could be supported under any circumstances,) they could have been properly given, as applicable alone to the first count. 3. The jury was instructed, that if they believed the witness was mistaken as to the time when the note became due, they might find for the plaintiff on the first count. The witness did not pretend, it is true, to speak positively to the date, yet if he was mistaken, there was no evidence whatever before the jury to authorize a verdict on this count, for the bill of exceptions distinctly sets out the fact, that no other evidence than the deposition was before the jury. This part of the instructions might have misled the jury so far as to cause them to give interest from October or November, instead of the following month of January; but if the amount of the verdict shows that the jury were not misled, and assessed the interest only from January, we should hesitate long before we would reverse the judgment for this cause, as we consider it clear that, a judgment ought no.t to be reversed even when an erroneous charge has been given, if it appears from the circumstances of the case, that no injury has been done to the adverse party. As the judgment is necessarily reversed on the point previously mentioned, we need not examine the amount of the verdict to ascertain whether injury has or has not been done, and sufficient has been said to prevent a recurrence of a similar charge. 4. The instruction respecting the non-allowance of interest, if the verdict should be found on the count for money had and received, was correctly refused. Formerly it was the practice not [456] to allow interest on this count; (Chitty on bills, 422) but we are not aware that any such rule has ever obtained in the American courts. The course of practice in this State has always been the reverse, and we can perceive no reason why interest should not -be allowed on a demand which is lawfully entitled to bear it, whether the recovery is had on a special or a general count. For the error in overruling the demurrer to the first count of the declaration the judgment is reversed and the cause remanded.