Chandler v. Lawrence

By the Court, Green, P. J. This suit was commenced in the County Court of Macomb County, in June, 1851, by filing declaration, but was tried in the Circuit Court for said county, at the September term of 1852. Whether it was transferred from the County Court into the Circuit Court, by election of one of the parties, or by virtue of the 10th section of the schedule of-the new Constitution, the record does not show. If the transfer was by election, the question is free from all doubt. The “ act to consolidate the laws in relation to County Courts, and for other purposes,” approved April 2,1849, § 54, provides, that “ when an action founded upon contract is brought against several persons, the plaintiff' may be allowed, at any time before judgment, to discontinue as against any of the defendants, upon such terms as the Court shall direct, and a verdict may be taken for or against any one or more of the several defendants.” By the amendatory act of June 28, 1851, (Loaos 1851, ¶. 322,) authorizing the removal of causes from County Courts to Circuit Courts, by election of one of. the parties, it is provided that neither party shall lose any rights by such transfer which he would have had if the same had been tried in the County Court, &c. If, therefore, the cause was transferred by election, it is clear that the plaintiff had the right to discontinue as against any of the defendants, and that the Circuit Court had the same power to allow such discontinuance that the County Court would have had under the act of 1849. [266] The 10th section of the Schedule before referred to provides that on the first day of January, in the year 1852, “ the jurisdiction of all suits and proceedings, at law and in equity, then pending in the Circuit Courts and County Courts for the several counties, shall become vested in the Circuit Courts of the said counties, and the District Court of the Upper Peninsula.” Under this latter provision, the Circuit Courts, from the first day of January, 1852, and without any further legislation, assumed and exercised jurisdiction of all suits and proceedings then pending in the County Courts, and have given effect, as far as was compatible with the organization and mode of procedure in the Circuit Courts, to all the provisions of law relating to such suits and proceedings in the County Courts, and we have no doubt that such is the true construction of the provision conferring the jurisdiction in question upon the Circuit Courts. The action in this case was upon a joint and several promissory note, and presented a proper case in which to allow a discontinuance as to any one or more of the defendants, at the instance of the plaintiff The Court below did not err in admitting in evidence the two indorsements upon the note, in the hand-writing of Chandler, and in receiving the testimony of Robertson to prove the admission of Chandler that the indorsements were in his hand-writing, and that they were made for the purpose of renewing the note. • Section 17, of chap. 2, title 6, part 3, of the R. S. of 1838, which corresponds with section 17, of chap. 140, of the R. S. of 1846, reads as follows: “Nothing contained in the four preceding sections shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person; but no indorsement of any such payment, written or made upon any promissory note, bill of exchange, or other writing, by or on, behalf of the party to whom such payment shall be made, or purport to be' [267] made, shall be deemed sufficient proof of the payment, so as* to take the case out of the operation of the provisions of this chapter.” One of the four preceding sections referred to is the 13th, which requires that an acknowledgement, or new promise, shall be in writing, signed by the party to be charged thereby, ill order to be effectual as evidence to take a case out of the operation of that chapter. Section 11 assumes that a payment of any principal or interest of a debt, is sufficient of itself, without any written promise or acknowledgment to take a case out of the statute; and that an endorsement upon a promissory note, written by the party to whom the payment purports to be made, is not incompetent as evidence, but declares that it shall not be. deemed sufficient proof of the payment. It cannot, then, be doubted, that an endorsement of payment made by the-party sought to be charged thereby, is competent, and may be sufficient evidence, unrebutted, to prove such payment. Our statute of limitationSj so far as it affects the question now under discussion, is a literal transcript from the R. S. of Massachusetts of 1836, Ch. 120, § 13 to 11, inclusive. In the ease of Williams vs. Gridley, (9 Metc. 482,) Dewey, J". reviews the English authorities upon this question, and arrives at the conclusion that the admission of the defendant, or any other competent parol evidence, is admissible under the statute to prove part payment, in order to take the case out of the statute. In this construction of the statute we fully concur. Proof of the signature of Chandler to the note, was sufficient, without proving its execution by the other several makers. The issue was upon the several promise of the defendant below, and the plaintiff sustained that issue on his part, by showing that the. defendant executed the note. (2 Chitty’s Pl. 116, note R, Springfield ed. 1847.) The judgment of the Circuit Court must be affirmed, with costs to the defendants in error.