French v. Estate of Thompson

The opinion of the court was pronounced by Collamee, J. — The plaintiff, by his declaration, insists that Thompson, in his private and individual capacity, made the promise, and for the consideration therein stated, to be personally holden. This was a question for the jury to try, and by their verdict they have found it as the plaintiff has declared; nor has any exception been taken to the charge as to the manner in which that question was left to the jury. This view of the case disposes of a large part of what has been urged in argument. To the jury the defendant should have urged the facts that the surrender of the demands and property was no personal benefit to Thompson, that the parties long left the demand unsettled, that French wrote to Thompson to sue Hurlbut on the claim, &c. as all tending to show that Thompson never made, and French never understood him. to make any such personal promise as is now alleged, Such was the only legitimate use to be made of those facts. The weight of evidence is not to be argued over to the court, on a proceeding in error. This disposes of the letter of French. If he had a legal claim on Thompson personally, it was no way inconsistent with an existing claim on Hurlbut, and the letter could be no discharge of Thompson. This also disposes of the argument that the promise of Thompson was void, as being no more than he was already bound as guardian to do; for the jury, by their verdict, have found a personal promise and liability. It is not necessary to say the plaintiff had a lien for his account on Hurlbut’s demands so that he could have held the whole until paid; but the court is of opinion he had the right to collect his pay out of those demands, and therefore his surrender thereof was a sufficient consideration for the promise.. It is here to be observed, that the questions whether a sufficient legal consideration was proved, or whether the promise was void because it created no new obligation or duty, can hardly be considered as questions presented in this case. The consideration and promise proved were those stated in the declaration, and the declaration was [59] not demurred to, nor has any motion in arrest been filed for insufficiency. If the defendant, neglecting to demiir, traverse the declaration, and put the plaintiff on his proof, he cannot object, to the evidence, or to verdict being found for the plaintiff if the evidence support the declaration, even though the declaration be substantially defective. The issue being sustained by legal proof, must be found accordingly$ and the opposite party must be left to his motion in arrest. It is important this distinction should be preserved in practice. The plaintiff is entitled to all the advantages a verdict will give him in such case. Many defects are cured by verdict, and even if a motion in arrest is sustained, the defendant recovers no cost. This is peculiarly important under our system of review. The same charge would be equally erroneous or correct at every trial of the same issue on the same evidence,. Suppose a declaration be substantially defective, but the defendant, willing to put the plaintiff to all possible cost, declines to demur, but puts in the general issue, and after several jury trials, at last requests the court to charge the jury that the plaintiff cannot recover even if the declaration is fully proved. Is it not apparent, if the jury be so instructed, and a verdict returned for the defendant, the most manifest violence will be done to legal principles, and the defendant will recover costs to which he is not entitled ? Even the jury would do violence to the very terms of their oath, and would not try the issue and find it according to the evidence given in court. In the present case, the evidence was strictly according to the declaration, both in relation to the consideration and terms of the promise alleged. The court therefore could neither reject the evidence nor direct the jury to find a verdict for the defendant, even had the plaintiff’s claim been insufficient in law. These principles have been fully recognized and settled by this court in the case Barney vs. Bliss, (2 Aik. 60.) The principal question which this case presents is this: Was the promise of Thompson within the statute of frauds, and therefore necessary to be proved in writing? Were this res integra, it might admit of much room for hesitation ; but our legislature having adopted the English statute. in its very words, must have intended it should be here re [60] ceived with the practical construction and limitations it 1 had there received. It has been most fully and repeatedty decided, that if the promise to pay the debt of another founded on a new consideration, independent of the debt, and moving between the parties to the new promise? it is an independent promise, and not within the statute.— (Stark. Ev. 4 Part, 596-7, and notes.) This case is within the case Castling vs. Aubert, (2 East, 325,) and amounted to a sale of the plaintiff’s collateral security. Much has been said on the demand; but it is not very obvious how a demand was necessary. By the terms of the promise, Thompson was to see the debt paid : if, therefore, he had notice of it as a liquidated and unpaid debt, it was his duty to have paid it. That he had such notice, the jury inferred from the facts in the case, which the court think they were well authorized to do, if they so believed. Judgment affirmed.