Cox v. Bethany

Mathews, J. delivered the opinion of the court. This suit is on two promissory notes, made payable to the plaintiff and two other persons, or hearer. The contract is joint in relation to the obligees, but the notes being in the possession or custody of the petitioner, she assumes the entire r . . _ , . , T1 , ownership of them m the present action as bearer. Judgment was rendered in the court below for the whole amount claimed jn t[le petition, from which the defendant appealed, * . , , _ . . ,,. , . The answer contains a denial of the right of the plaintiff to recover the whole amount of the notes, having only a i0jnt interest in them with other persons who have not trans-J . . y TT ferred to her their title and interest in these obligations. Her counsel seems in argument to rely on the legal presumption by which holders of notes made payable to bearer, or J r endorsed in blank when made m negotiable form, are considered as the rightful proprietors of such instruments, This presumption amounts'to primh facie evidence of title r r ^ r ¿ in the holders of such instruments in ordinary cases, and yields only to contrary proof. But it appears to us that the same presumption ought not to be recognized as prevailing in a case like the present, when one of the co-obligees is the holder or possessor of the notes. Here we find three. They could not all hold and possess the same things at the same lime in their integrality. Instruments of this kind, held by one of the parties for whose joint benefit they may have been made, must be considered as bolder for all, unless it be shown that the holder has acquired by transfer the rights of his co-obligees. This case, however, cannot be examined on its merits, f^ere being no statement of facts or assignment of errors; and if the latter had been made, we could not assume any thing against the allegations of the petition which may have been supported by evidence, for they must be presumed to have been true, as the judgment of the court below is legal and correct only on this presumption; and here the maxim, omnia recte acta, is applicable. The defence in this court is therefore stripped of all its force, except two bills of exception; one of these was abandoned in the argument, and the other [155] cannot be supported either on principles of law or rules of practice established to aid in the administration of justice. This exception is to the opinion of the judge a quo, by which he overruled a motion made on the part of the defendant to . 1 . obtain a new trial. The motion is based on an affidavit of the discovery of new evidence. The facts said to have been discovered after the trial of the cause, would be applicable only to a new defence, which was not pleaded, viz: want of consideration for the promise. Now, it appears to us, that it would be to extend the doctrine and principles of new trials to an unreasonable length, if they were to be granted both to amend pleadings and let in new evidence. . A new tl.;ai fcdavit of newly cience since the fh^facte’disoio-sed related to have not been pleaded. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.