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Wilson v. Codman's Executors, 7 U.S. 3 Cranch 193 193 (1805)

Wilson v. Codman's Executors

7 U.S. (3 Cranch) 193




In a declaration, the averment that the assignment of a promissory note was for value received is an immaterial averment, and need not be proved.

If the defendant plead the bankruptcy of the endorser in bar, a replication stating that the note was given to the endorser in trust for the plaintiff is not a departure from the declaration, which alleges the note to have been given by the defendant for value received.

Upon the death of the plaintiff and appearance of his executor, the debtor is not entitled to a continuance. But he may insist on the production of the letters testamentary.

If the court has unguardedly permitted a person to prosecute who has not given satisfactory evidence of his right so to do, it possesses the means of preventing any mischief from the inadvertence, and will undoubtedly employ those means.

When the averment in the declaration is of a fact dehors the written contract, which fact is in itself immaterial, the party making the averment is not bound to prove it.

Claims against the agent cannot be offset against the principal.

It was an action of debt originally brought by John Codman, as assignee of a promissory note made by the defendant, Wilson, to Andrew and William Ramsay.? The declaration was as follows, viz.,

"John Codman, assignee of Andrew Ramsay and William Ramsay, complains of William Wilson, in custody, &c., of a plea that he render unto him the sum of $1,038.80, which to him he owes, and from him unjustly detains . . . for this, to-wit, that whereas the said defendant on 26 June, 1799, at Alexandria, in the county aforesaid, by his certain note in writing, subscribed with his proper hand and name, and to the court now here produced the date whereof . . . did promise to pay to the said Andrew and William Ramsay, or order, forty-five days after date, $1,038.80, for value received, negotiable in the Bank of Alexandria; and the said Andrew and William Ramsay, afterwards, to-wit, on 23 October, 1802, at the county aforesaid, by their certain writing endorsed on the said note, and subscribed with their proper hands and names, assigned the said note to the said plaintiff, for value received, of which assignment the said defendant afterwards, to-wit, &c., had notice, by means whereof, and by force of the act of assembly of Virginia, in such case made and provided, before the year 1801, action accrued,"

&c.. There was an office judgment against the defendant and his appearance bail,

Page 7 U. S. 194

to set aside which, the latter pleaded nil debet for his principal at June term, 1803.

At December term, 1803, the suit was entered abated by the plaintiff's death. Afterwards, at the same term, on the motion of Stephen Codman by his attorney, it was ordered, "that the said Stephen Codman, executor of John Codman, deceased, be made plaintiff in this suit, with leave to prosecute the same."

At June term, 1804, the defendant gave special bail and

"moved the court for a rule upon the plaintiff to grant oyer of his letters testamentary, to enable the defendant to answer the plaintiff, which was opposed by the plaintiff's attorney, and the motion was refused by the court,"

whereupon the defendant took a bill of exceptions. The plea put in by the appearance bail for the principal was withdrawn, and the latter pleaded 1st, nil debet, upon which issue was found, and 2d, that before 23f October, 1802, the time stated in the declaration, when A. and W. Ramsay are supposed to have assigned the said note to the said John Codman, the said A. and W. Ramsay had been declared bankrupts, &c., and on __ March, 1802, had duly obtained their final discharge, &c. To this plea the plaintiff replied that on 20 June, 1799, the defendant was justly indebted to John Codman, the testator, in the sum of $1,038.80, and in consideration thereof on that day made and executed the promissory note in the declaration mentioned for that sum to A. and W. Ramsay, as the agents of, and in trust for the use of, the said John Codman, the testator, and concluded with a verification. To this replication the defendant demurred specially, 1st, because it is a departure from and is inconsistent with the declaration in this, that the declaration affirms that the said note was payable to Andrew and William Ramsay for value received and was by them assigned for value received to the said John Codman, and the replication affirms that the said note was executed and delivered to the said A. and W. Ramsay, as the agents of, and in trust for the use of, the said John Codman; 2d, because the plaintiff, in his replication, ought to

Page 7 U. S. 195

have traversed the plea and tendered an issue thereupon, and ought not to have replied the said special matter and concluded with a verification; 3d, because the said replication is informal and insufficient, &c.

Upon this demurrer the court below adjudged the issue in law for the plaintiff.

Upon the issue in fact, the jury found a verdict also for the plaintiff, and on the trial, four bills of exception were taken by the defendant. The 1st was to the refusal of the court to instruct the jury that the plaintiff ought to produce in evidence his letters testamentary, to enable him to maintain the issue on his part.

The 2d bill of exceptions stated

"That the defendant produced testimony to the following facts, viz. that A. and W. Ramsay, on 13 August, 1799, when the note in the declaration mentioned became due, were indebted to him on their own account in a large sum of money, to-wit, in the sum of $8,000, and continued indebted to him always thereafter, to that or a greater amount, until they became bankrupt in November, 1801. That they had taken the said note for the use and benefit of John Codman, and not for their own, and were authorized as his agents to receive payment of the said note for his use, from the date thereof, until the ___ day of May, 1800. That the said John Codman urged payment to be made, and during this period of time sundry payments in money were made to the said A. and W. Ramsay by the defendant, who, at the time of making such payments, did not mention any definite purpose or use for which they were made. That the said Andrew and William Ramsay, during the period aforesaid, viz., from 13 August, 1799, to the time of their bankruptcy, had authority to receive no other debt from the said William Wilson, except the debt due on the note aforesaid, and on another note for about the same sum, due for the use of said John Codman. And the defendant moved the court to direct the jury that if it shall be of opinion that at the times respectively when William Wilson, the defendant, made payments in money to

Page 7 U. S. 196

Andrew and William Ramsay of sundry sums after the note became due upon which this action is brought, they, the said A. and W. Ramsay, were indebted to him on their own account, always after the said note became due, to an amount exceeding $8,000, and were not authorized, during the whole of the time, from 13 August, 1799, till their bankruptcy, to receive any other debt due from W. Wilson, the defendant, for the use of any other person except the debt due on the note, which is the ground of this action, and another note for about the same sum, which they held as the agents of John Codman, and in trust for his use; in such case, those payments of monies may be applied to the discharge of those two notes, unless the jury shall be satisfied by testimony that the said defendant did make those payments, or any of them, for some other purpose or purposes, respectively."

"The plaintiff had offered to prove by the testimony of Andrew Ramsay that the payments or advances of money to him and William Ramsay, charged in the account offered by the defendant, William Wilson, in the words and figures following, [here was inserted an account current made out by the defendant against A. and W. Ramsay, containing, among others, sundry debits and credits of cash, subsequent to the time when the notes became payable, and before the bankruptcy of the Ramsays, by which it appeared that they had paid to the defendant during that time more cash than he had paid to them, without specific appropriation; but the balance of the whole account (which commences in April, 1797, and continues to October 15, 1801) was against the Ramsays to about the sum of $10,000] were not made on account of the notes due to John Codman, or either of them, and that they were not received by the said A. and W. Ramsay, on account of the said notes or either of them, and had also offered in evidence two letters from the defendant, admitted to be in his handwriting, in the words and figures following [here were inserted two letters from the defendant to John Codman, the first dated 21 January, 1800, saying, that he had paid a small part of the notes to A. and W. Ramsay, and would gladly settle the remainder, if it was in his

Page 7 U. S. 197

power; the second is dated 25 February, 1800, offering to pay the notes in real estate, or to give a mortgage] whereupon the court refused to give the instruction as prayed,"

to which refusal the defendant excepted.

The 3d bill of exceptions was to the opinion of the court that it was necessary for the plaintiff to prove the assignment of the note, but that it was not necessary for him to prove that the same was made for value received by the said A. and W. Ramsay from the said John Codman.

The 4th bill of exceptions was to the admission of the note and endorsement in evidence to the jury, the endorsement being in these words: "We assign this note to John Codman, without recourse," and signed by A. and W. Ramsay, the payees of the note, inasmuch as the endorsement varied from that set forth in the declaration, the former being "without recourse" and the latter "for value received."

Page 7 U. S. 206

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

The first question which presents itself in this case is was the defendant entitled to oyer of the letters testamentary at the term succeeding that at which the executor was admitted a plaintiff in the cause?

It is contended on the part of the defendant that on the suggestion of the death of either plaintiff or defendant, a scire facias ought to issue in order to bring in his representative, or, if a scire facias should not be required, yet that the opposite party should have the same time to plead and make a proper defense as if such process had been actually sued.

The words of the act of Congress do not seem to countenance this opinion. They contemplate the coming in of the executor as a voluntary act, and give the scire facias to bring him in, if it shall be necessary, and to enable the court "to render such judgment against the estate of the

Page 7 U. S. 207

deceased party," "as if the executor or administrator had voluntarily made himself a party to the suit." From the language of the act, this may be done instant. The opinion that it is to be done on motion and that the party may immediately proceed to trial derives strength from the provision that the executor or administrator so becoming a party may have one continuance. This provision shows that the legislature supposed the circumstance of making the executor a party to the suit to be no cause of delay. But as the executor might require time to inform himself of the proper defense, one continuance was allowed him for that purpose. The same reason not extending to the other party, the same indulgence is not extended to him.

There is, then, nothing in the act, nor is there anything in the nature of the provision, which should induce an opinion that any delay is to be occasioned where the executor makes himself a party and is ready to go to trial. Unquestionably he must show himself to be executor unless the fact be admitted by the parties, and the defendant may insist on the production of his letters testamentary before he shall be permitted to prosecute; but if the order for his admission as a party be made, it is too late to contest the fact of his being an executor.

If the court has unguardedly permitted a person to prosecute who has not given satisfactory evidence of his right to do so, it possesses the means of preventing any mischief from the inadvertence, and will undoubtedly employ those means.

The second point in the case is the demurrer of the defendant to the plaintiff's replication.

Two causes of demurrer are assigned -- 1st, that it is a departure from the declaration; 2d, that the plea ought to have been traversed and an issue tendered thereon.

On the first cause of demurrer, some difference has existed in the Court, but the majority of the judges concur in the opinion that the replication fortifies, and does not depart from, the declaration.

Page 7 U. S. 208

The averment that the assignment was for value received is an immaterial averment. The assignee without value can as well maintain his action as the assignee on a valuable consideration. It is therefore mere surplusage, and does not require to be proved; nor does it affect the substantial part of the declaration. It is also the opinion of a part of the Court that the duty created by the trust, and which was discharged by the assignment, may be considered as constituting a valuable consideration to support the averment and prevent the replication from being a departure from the declaration.

2d. The second cause of demurrer is clearly not maintainable. The matter of the replication does not deny, but avoids the allegations of, the plea, and consequently the conclusion to the Court is proper.

It has indeed been argued that the replication is faulty because it does not confess the matter alleged in the plea; but this is not assigned as a cause of demurrer, and it is therefore not noticed by the Court.

The demurrer having been overruled, several exceptions were taken at the trial to the opinion of the court.

The first was to the admission of the note as evidence. This was objected to because the declaration averred the note to be assigned for value received, and the assignment contained no expression of a valuable consideration, but was declared to be made "without recourse." As the assignment is not set forth in haec verba, this exception is so clearly unmaintainable that it will require only to be mentioned.

The 2d exception requires more consideration. It is that although the averment that the assignment was made for value received was immaterial, yet the plaintiff, having stated the fact in his declaration, is bound to prove it. In support of this position, Bristow v. Wright, Doug. 665, has been quoted and relied on.

The strictness with which, in England, a plaintiff is bound to prove the averments of his declaration although

Page 7 U. S. 209

they may be immaterial seems to have relaxed from its original "rigor".

The reasons stated by Lord Mansfield in the case reported by Douglas for adhering to the rule do not apply in the United States, where costs are not affected by the length of the declaration.

Examining the subject with a view to the great principles of justice, and to those rules which are calculated for the preservation of right and the prevention of injury, no reason is perceived for requiring the proof of a perfectly immaterial averment, unless that averment be descriptive of a written instrument, which, by being untruly described, may, by possibility, mislead the opposite party.

Where, then, the averment in the declaration is of a fact dehors the written contract, which fact is in itself immaterial, it is the opinion of the Court that the party making the averment is not bound to prove it.

In this case the averment that the assignment was made for value received is the averment of a fact, which is perfectly immaterial, and which forms no part of the written assignment; nor is it averred to be a part of it. It is an extrinsic fact showing how the right of action was acquired, but which contributes nothing towards giving that right of action. The party making this useless averment ought not to be bound to prove it.

No case which has been cited at bar comes up to this. The averments of the declaration which the plaintiff has been required to prove are all descriptive of records or of written contracts, not of a fact at the same time extrinsic and immaterial. The Court is therefore unanimous in the opinion that this exception cannot be maintained.

In the progress of the trial, the counsel for the defendant in the court below also required that court to instruct the jury that unless the plaintiff could show that the Ramsays, who were his agents, had the power

Page 7 U. S. 210

to collect some other debt from the defendant, the payments made by him to them should be credited on the notes given to them in trust for Codman, which instruction the court very properly refused to give.

Independent of the proof made by the plaintiff that the sums of money received by the Ramsays from Wilson were really on their own account, the instruction would not have been proper as this case actually stood. There was a running account between the Ramsays and Wilson, who had large transactions with each other and who reciprocally advanced large sums. This running account is not stated by the defendant in the proposition for the opinion of the court. The effect it produces is to make it proper for Wilson to prove that advances made by him to the Ramsays were not designed to satisfy their particular engagements with each other, but were intended to discharge the debt due to Codman. Terms are improperly used in the bill which imply a fact contradicted by the testimony. The word "payment" is used instead of the word "advance," and this at first view may produce an obscurity, which is dissipated on investigating the record.

The judgment is to be affirmed with costs.

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