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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

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