Greenwood v. Curtis

A promissory note, not negotiable, given m consideration of a balance found due upon an insimul computassent, is not of itself a payment, nor a bar to a recovery in an action on the insimul computassent.

This was assumpsit upon a contract in the following words, viz.: — “ Ric Pongos, on the coast of Africa, July 27, 1802. I promise to pay, or cause to be paid, to the owners or concerned of brig Hope, nine four foot slaves, thirty-seven prime slaves, and seventy-six bars, on demand, for value received of Capt. Hichborn. “ Benja. Curtis.” The first count alleges that, prior to the date of the foregoing instrument, the plaintiff had become the owner of the brig Hope and her cargo, by purchase of one Humphry Courtney, and of all the proceeds of said cargo ; that Isaac B. Hichborn was master of said brig; and that the defendant gave said note as above described. The' second count states the promise to have been made to the plaintiff, to pay the owners and concerned of said brig as aforesaid. The third count alleges the promise to the plaintiff to pay him according to the note, and concludes with allegations that, at the time of making the promises, and until the purchase of the writ, the plaintiff was owner and concerned in the said brig Hope and the cargo, and the proceeds thereof, and alleges notice to Curtis, and a request to deliver the slaves., &c., according to the promise. Before the trial, a new count was filed under general leave tc amend, which was objected to by the defendant, on the ground that it changed the nature of the demand ; but the objection was overruled. This count alleges a settlement of accounts between Curtis and Hichborn, the master of the brig, for the benefit of the plaintifl as owner, and a balance found in bars, equal to 4481 dollars I cent, due from Curtis to the plaintiff. The action was tried at the last November term, before Parker, J., from whose report of the case the following facts appear: — The interest of the plaintiff in the brig Hope and cargo was proved according to his allegations. The defence principally relied on was, that the contract declared on was in violation [ * 94 ] * of the principles of the constitution and laws of the state and of the United States, and therefore no action could be maintained on it in the courts of the commonwealth.