Dana v. Sumner Sessions

Payment since the commencement of the suit must be pleaded in bar of its farther maintenance, otherwise it is admissible only in mitigation of damages. Where a specification of a general count was ordered at the first term, but not filed until the trial at a subsequent term, and plaintiff had judgment for nominal damages, upon the ground that the debt had been paid since the suit was brought, it was held that plaintiff’s costs were properly limited to the first term.

Assumpsit. The declaration contained the general money counts including money had and received for $100.00. Plea, general issue. David Meserve, the real plaintiff in interest, caused the action to be commenced and entered at the April Term, 1863, in this county, when Mr. Ray appeared in the case as attorney for defendant, and on his motion in behalf of defendant, a specification of plaintiff’s claim was ordered to be filed in 30 days, and the action continued. This motion had been renewed at every term since, but no specification was filed until this term. Now, the plaintiff offers a note signed by defendant, dated July 22, 1862, payable to said Meserve and one Heywood, or bearer, for $13.08, on demand with interest. It appeared in evidence that this note was the one originally sued in this action, and that when said Meserve left the original note with his attorney, Williams, for collection, he retained a copy, and afterwards, on the 27th day of April, 1865, caused another suit tobe brought upon the copy in his own name against the defendant. Said Meserve testified that he had forgotten he had left the original note with Williams, and that he supposed no action was pending on the note when he sued it the second time. Williams was absent when the second suit was brought, and he procured Burns & Fletcher to make the writ. The defendant’s property was attached in the second suit, and subsequently his father called upon said Meserve and settled the same, paying debt and costs, and took the copy of the note from Meserve, supposing it to be the original note. This settlement occurred July 3, 1865. Defendant was absent in the army when both actions were commenced. His wife lived with his father. Defendant said he did not know of either suit until his return the past summer. At this term, after the original note was filed, defendant moved to reject it, and also upon the foregoing facts appearing in testimony, defendant also moved that a verdict be ordered in his favor. This the court declined to do. The cause was then by consent taken from the jury. The court accordingly ordered judgment for plaintiff for nominal damages, but limited costs to the first term. The parties then agreed that the case be assigned to the Law Term in this district, and that such judgment be finally rendered in the case as the whole court should order.