Potter v. Stanley

The opinion of the Court was delivered by Chipman, Ch. J. The plea in bar in this case, if it amount to any thing, amounts to the general issue. . The consideration is, if I may use the expression, of the very essence of a promise. It is true that a general averment in a note and declaration, is, prima facie, sufficient for the plaintiff, and puts the defendant, to prove that the note was obtained by fraud, imposition, or on an illegal consideration, or on a consideration which has failed. If the defendant can shew this, the law says that he did not assume and promise. It goes to the original cause and ground of the action. But, to permit the defendant, in the case .of a promissory note, by a mere averment of a want of consideration, to put the plaintiff upon the proof of a special consideration, when a general consideration is acknowledged in the execution of the contract, would be to unsettle both prin [244] ciplcs and practice; it would be to reduce these instruments, back to parol contracts, and would in many instances, particularly, in the hands of an indorsee render them equally, if not more inconvenient +7 , tiian parol agreements. It is true that some matters, which may be given in evidence under the general issue in assumpsit, may also be pleaded in bar, as payment, accord and satisfaction, and a release ¡ because the plea hi such case allows the cause of action once to have subsisted ; but, nothing can, in assumpsit, be pleaded in bar, which goes to deny the original cause of action. It seems here, indeed, that the pleader intended to go further, than a naked averment of a want of consideration, and to set forth some facts from which to infer a want of consideration. But whatever his intention might have been, he has been so loose and vague in his expressions, as not to be fairly intelligiable. He says the money received, for which the note was given, was received of Mrs. Potter, wife of Amos Potter, and was the property of Amos Potter. Is the Amos Potter mentioned in this part of the plea, the same Amos Potter, who was impleaded by the name of Amos Potter, 2d ? for this addition to which he has answered, supposes another Amos Potter, of the same name without the addition. This is too vague and uncertain. And the Court consider the plea as insufficient in every point of view and therefore Affirm the judgment of the County Court.