Marquis v. Rogers

Blackeord, J. This was an action of debt on three promissory notes given by the defendant’s intestate to the plaintiff. Pleas, 1. No consideration; 2. No goods of the deceased in the defendant’s hands; 3. Plene administravit; 4. Failure of consideration. Replication to the 1st and 4th pleas, that the notes were given on a sufficient consideration. Replication to the 2d and 3d jileas, that the defendant had assets. The first replication, so far as it relates to the 4th plea, is a nullity. It does not attempt to answer the alleged failure of consideration. The cause was tried by a jury. Verdict and judgment for the defendant. After the evidence on the trial was closed, the plaintiff moved the Court for leave to open and conclude the argument in the cause, but the motion was overruled. The affirmative of the issues on the 2d and 3d pleas was on the jilaintiff. Bentley v. Bentley, 7 Cowen, 701. — 2 Greenl. Ev. 277. He had, therefore, a right to begin. There were several instructions asked for by the plaintiff [119] and' refused. It is not shown that there was any evidence to which these instructions were applicable, and we cannot therefore, that the refusal was erroneous. D. Wallace and R. Brackenridge, for the plaintiff. D. H. Colerick and H. Cooper, for the defendant. On motion of the defendant, the Court instructed the jury that if they found that the notes were paid, their verdict should be for the defendant. This instruction was wrong. The defendant could not, under the issues, prove payment of the notes. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.