Goddard v. Mockbee

But the Court (nem. con.) refused. The defendant then prayed the Court to instruct the jury that if they believe from the said evidence that the plaintiff holds the said Moekbee’s note for the debt and has never released him from the debt, then the understanding of the defendant was collateral, and the plaintiff is not entitled to recover, although the defendant may have verbally promised to pay the plaintiff, upon a full consideration passed to him by the said Mockbee. Which instruction the Court also refused to give. The defendant then prayed the Court to instruct the jury that if they believe, from the 'evidence aforesaid, that the said Mock-bee, being largely indebted, assigned to the defendant certain per [667] sonal property, upon his assumption to said Mockbee to pay the creditors of the said Mockbee; and that at the time of the said assignment and assumption the plaintiff was the holder of the note aforesaid, and still holds the same, never having released the said debt; but the same being still a subsisting debt in full force; and that after receiving the said property the defendant acknowledged verbally that he had sufficient to pay the preferred creditors of the said Mockbee, among whom was the plaintiff; and afterwards acknowledged that he had sold the greater part of the said property, and had paid the curtails upon the said note ; then there is no evidence of any promise in writing by the defendant to pay the debt of the said Mockbee, and the plaintiff is not entitled to recover. Mr. R. J. Brent, for the defendant, cited Weston v. Barker, 12 Johns. 276 ; Biting v. fancier lyn, 4 Id. 237; Marshall v. Bro-naugh, in this Court; Rice v. Barry, also in this Court, (2 Cranch, C. C. 447); Deioolf v. Rabaud, 1 Peters, 475, 501. Mr. Hoban, for the plaintiff, cited Roberts on Frauds, 234; Hughes v. McDermot, in this Court at last term; Olmslead v. Greenly, 18 Johns. 12; 5 Wheeler, 510; Cleveland v. Farley, 9 Cowen, 639. Which instruction the CouRT also refused to give. The defendant then prayed the Court to instruct the jury that if they believe that the said note was made and indorsed for the accommodation of the said Mockbee, and that the plaintiff was but an indorser, then, to entitle the plaintiff to recover, it is necessary that he should prove that the said note was discounted, or put into circulation ; and that some consideration has been paid by the plaintiff for the note or on account of the same. But the Court refused this instruction also. Verdict for the plaintiff.