Stephens v. Thompson

The opinion of the court was delivered by Bennet, J. The amendment of the declaration was properly allowed by the county court. The amendment allowed was the insertion of a count upon an account stated, and a note of hand is evidence to support such a coupt; and if the party, in his prqof, is confined to the original con [80] sideration, there can he no objection. This was not introducing any new cause of action. We think the law is too well settled in this state to admit of debate that if a party agrees to take, and does take a separate negotiable note or bill of exchange of one member of a partnership firm in satisfaction of their joint debt, it is a discharge of the other partners, and this'is according to the English cases. See Thompson v. Percival, 5 Barn. & Adol. 933, and cases there cited; and such seemed to be the opinion of .the court below, although it must be admitted, that the case cited by counsel from the 5th Hill, is opposed to this view. The question then before us is, did Thompson make out a prima facie case that Franklin’s note was taken and received in satisfaction of the partnership account. The fact that he received the note to balance accounts is, prima facie, in discharge of the account. This is the doctrine of the Massachussetts court, and we have followed the Massachusetts cases. See 4 Yt. 549, and 13 Yt. 452. The jury should have been told that the taking of the note and giving the receipt, in the manner detailed in the bill of exceptions, made a prima fable case for the defendant Thompson, and, unless rebutted, their verdict should have been for him, and there was error in the court submitting to the jury so many circumstances, to be weighed by them, in connection with other circumstances. This was not giving the facts their legal effect. The deposition of Greeley was properly excluded. It is well settled, as a rule of practice in the county courts, that a party cannot be required to attend the taking of a deposition in term time. The party must have reasonable time to attend the taking of a deposition, by himself and counsel, which was not given in this case. Judgment reversed and case remanded.