Wm. Long vs. Gabriel Long for use of Walling

Wm. Long vs. Gabriel Long for use of Walling. In action of debt no notice or plea of want of consideration is necessary to enable defendant to give evidence of that fact in bis defence. Mention of a seal in the body of the instrument will not constitute a specialty, without a scrawl or seal affixed. In suits brought by assignee on instruments not negotiable want of consideration between the original parties is a good defence. Action of debt on a promissory, note made by Wm. Long payable to Gabriel Long, and endorsed by him to Jerome B. Walling and by said endorsee to Jesse D. Walling. Plea geni, issue, and notice under the statute that dft. on the trial would insist and prove that before said note became due and payable according to the express terms thereof it was agreed by and between the parties thereto that the same should not be paid nor payable until a time in said agreement mentioned, which time has not yet elapsed. He will also prove that said note was not due (by agreement of the parties) at the time of the commencement of this suit. He will also insist and prove that after said note was made, and before the same becamedue and payable it was agreed by the parties thereto that the same should not be paid nor payable until a certain event should 'happen, which event has not yet happened. Verdict for the plaintiff. The verdict is in the following form, “we the jury find for the plaintiff and assess his damages at two hundred and. eight dollars twenty-five cents ” The defendant in the Court below moved for an arrest of judgment for the reason that “the verdict of the jury is for damages, and not for debt, nor do “the jury find that the defendant is indebted to the plaintiff. And afterwards the plaintiff moves the Court that the verdict of the jury in this case be amended so as to conform to the issue joined. The Court allowed the verdict to be amended, and the defendant’s motion was overruled. There was also a demurrer to the declaration. The case comes up to this Court on writ of error with the following assignment of errors. 1st. The Court below should have permitted the defendant to prove that the parties to the contract had changed the same by extending the time for the payment of the money therein mentioned to a period beyond the time of the commencement of this suit; but the Court refused permission to the defendant to prove the above. 2d. The Court below should have permitted the defendant to prove that said note was given without consideration, but the Court refused permission to the defendant to prove the same. 3d. The Court gave a final judgment for the plaintiff before the demurrer was disposed of, when it should have disposed of the demurrer before final judgment. 4th. The Court permitted the plff. to amend the verdict which it ought not to have done, particularly after a continuance, no motion being made therefor ■until the term next after the return of the verdict. WHicHEK,for plff. in error. Grimes, for the defendant in error. Error will not lie or be sustained except in those oases where the errors assigned were actually considered by the Court below. Houghton vs. Starr. 4 Went R. 175. The assignment of errors does not show whether the parol agreement was with, the original payee or beneficial holder, not whether it was made at the time of the execution of th.e contract or subsequent to it. If at the time the note was made, parol testimony is clearly inadmissible, and it will not be .presumed by this Court whether it was at, before, or after its execution. It is a settled rule that a bargain when a note was given or transferred for renewal or indulgence cannot be orally proved. Bayley on Bills 521. Wood-bridge vs. Spooner 3 B.Sf Aid, 233. — Frio vs. Hamkins 8 Taun . 42. — Ramson vs. Walker 1 Stark. 361 — Trustees, ¿fe. vs. Stetson 5 Pick. 506 — Spring vs. Lo-vett 11 Pick. 417 — Bank U. States vs. Dun 6 Peters. 51 — Hill vs. Ely 5 Serg. £f R. 363 — 5' Verm. R. 514. Parol testimony is inadmissable to show that a note in terms absolute was payable on condition,.or at a different time from the one specified. Thompson vs. Ketcham 8. Johns. R. ISO. As to the second error. This suit is instituted on a sealed bill executed 2d Feb., 1838, and endorsed 12 Dec., same year, and before due. The consideration could not be inquired into between the original parties, much less between the maker and an innocent third person. 20 Johns. R. 134 Parker vs. Parmlee. But there was neither plea nor notice of want of consideration, loma practice act. The contingency spoken of should have been averred, and as being likely to happen. Thompson, vs. Ketcham 8 Johns R. 190. As to the third error. In amending the verdict the Court was unquestionably right. In Rew vs. Barker, 2 Com. R. 408, the verdict in the Common Pleas was amended after error brought, joinder in error and several notices of argument. Marsh vs. Berry 7 Com. 344. The Court below was correct in treating a demurrer filed after the general issue as a nullity. Where there are several pleas, on one of which issue is not taken, if defendant go to trial it will be a waiver of that plea and the irregularity cured by verdict. Ross Sf al. vs. Redick 2 Breese R. 40. [MAJORITY — Mason, Ch. J.] By the Court Mason, Ch. J. The note on which this suit was brought was given by William Long to Gabriel Long and afterwards came by two endorsements into the possession of Walling. The first of these endorsements was made before the note became due — the other afterwards. The body of the note contained the words “witness my hand and seal,” but no seal or scrawl was affixed to the name of William Long. The suit was brought in the name of Gabriel Long for the use of Walling. The Bill of exceptions states among other things that on the trial of the cause the deft, below offered to prove that the note was given without consideration, which was objected to, and the objection sustained by the Court. This appears to be substantially the same error for which the judgment in the ease of Temple vs. Hays & Hendershot was reversed at the last term of this Court, and we see nothing to create a distinction between the two cases. It is objected that in this case the defendant below neither pleaded nor gave notice of a want of consideration; but was that necessary? In assumpsit want of consideration may be given in evidence under the general issue 1 Ch. Pl. 511, and it seems that nearly the same matters may be given under the plea of nil debet in an action of debt. 1 Ch. 517 note (p). We are inclined to think that no notice or plea of want of consideration was necessary to enable the defendant to give evidence of that fact in his deience. But it is contended for the defendant in error that the instrument declared on was a specialty to which want of consideration would be no defence. It has sometimes been decided that the existence of the seal or scrawl was not sufficient to constitute a specialty unless the same were referred to in the body of the instrument; but we are not aware that the allusion to the seal in the instrument as in this case is of itself sufficient to constitute a specialty in the absence of both the scrawl and the seal. We think that such would certainly not be the case. We will merely observe in conclusion that in one respect this is a stronger case for the plaintiff in error than that of Temple vs. Hays & Hendershot above quoted. There the instrument declared on was negotiable. Had the holder of the note in that case availed himself of his right of suing in his own name, fraud or want of consideration in the origin of the note would have been no defence. But in the present instance the note was not negotiable, but is to be governed by the rules applicable to ordinary choses in action. In all such cases want of consideration between the original parties is a good defence to a suit brought for the use of the assignee, ( Chitty on Bills 9.) The judgment below is therefore set aside and a new trial granted.