Wilson v. Codman's

Pleading — Set-off.—Death of party. In a declaration, the averment that the assignment of a promissory note was for value received is-an immaterial one, and need not be proved. If the defendant plead the bankruptcy of the indorser in bar, a replication, stating that the note-was given to the indorser, 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. Claims against an agent cannot be set off against the principal. Upon the death of a plaintiff, and appearance of his executor, the defendant is not entitled to a.. continuance.1 But he may insist on the production of the letters testamentary, before the executor shall be permitted to prosecute.

This 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. (a) The declaration was as follows, viz : “John Codman, assignee of Andrew Ramsay and William Ramsay, complains of William Wilson, in custody, ¿so., of a plea that he render unto him the sum of $1038.80, which to him he owes, and from him unjustly de•ains, &c., for this, to wit, that whereas, the said defendant, on the 26th. ■day of 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, ¿so., did promise to pay to the said Andrew and William Ramsay, or order, forty-five days after date, $1038.80, for value received, negotiable in the bank of Alexandria; and the said Andrew and William Ramsay, afterwards, to wit, on the 23d day of October, in the year of our Lord 1802, at the county aforesaid, by their certain writing indorsed 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, *to set aside which, the latter pleaded nil debet for his principal, rHt at June term 1803. At December term 1803, the suit was entered L 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 joined: and 2d. That before the 23d day of October 1802, the time stated in the declaration, when A. & W. Ramsay are supposed to have assigned the said note to the said John Codman, the said A. & W. Ramsay had been declared bankrupts, ¿so., and on the-day of March 1802, had duly obtained their final discharge, ¿so. To this plea, the plaintiff replied, that on the 20th of June 1799, the defendant was justly indebted to John Codman, the testator, in the sum of $1038.80, and in consideration thereof, on that day, made and executed the promissory note in the declaration mentioned, for that sum, to A. ¿s 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 tbe said John Codman; and tbe replication affirms, that tbe said note was. executed and delivered to the said A. & W. Ramsay, as tbe agents of, and in trust for tbe use of, tbe said John Codman: 2d. Because tbe plaintiff, in qc-i bis replication, ought to *have traversed tbe plea, and tendered an J issue thereupon, and ought not to have replied the said special matter,, and concluded with a verification : 3d. Because tbe said replication is informal and insufficient, &e. Upon this demurrer, tbe court below adjudged tbe issue in law for tbe plaintiff. Upon tbe issue in fact, tbe jury found a verdict also for tbe plaintiff ; and on tbe trial, four bills of exception were taken by tbe defendant. The 1st was to tbe refusal of tbe court to instruct tbe jury, that tbe plaintiff ought to produce in evidence bis letters testamentary, to enable him to maintain tbe issue on bis part. Tbe 2d bill of exceptions stated, “ that tbe defendant produced testimony to tbe following facts, viz., that A. & W. Ramsay, on tbe 13th of August 1'799, when tbe note in tbe declaration mentioned became due, were indebted to him, on their own account, in a large sum of money, to wit, in tbe sum of $8000, and continued indebted to him always thereafter, to that or a greater amount, until they became bankrupt, in November 1801. That they bad taken the said note, for tbe use and benefit of John Codman, and not for their own, and were authorized, as bis agents, to receive payment of tbe said note, for bis use, from tbe date thereof, until tbe -day of May 1800. That tbe said John Codman urged payment to be made; and during this period-of time, sundry payments in money were made to tbe said A. & W. Ramsay,, by tbe defendant, who, at tbe time of making such payments, did not mention any definite purpose or use for which they were made. That tbe said Andrew & William Ramsay, during tbe period aforesaid, viz., from tbe 13th of August 1799, to tbe time of their bankruptcy, bad authority to receive no other debt from tbe said William Wilson, except tbe debt due on tbe note aforesaid, and on another note, for about tbe same sum, due for tbe use of said John Codman. And the defendant moved tbe court to direct tbe jury, that if they should be of opinion, that, at tbe times respectively, when Wil-QRl ^am Wilson, the defendant, made payments in money to *Andrew & -> William Ramsay, of sundry sums, after the note became due upon which this action is brought, they, tbe said A. & W. Ramsay, were indebted to him on their own account, always after tbe said note became due, to an amount exceeding $8000, and were not authorized, during tbe whole of tbe time, from tbe 13th August 1799, until their bankruptcy, to receive any other debt due from W. Wilson, tbe defendant, for tbe use of any other person, except tbe debt due on tbe note, which is tbe ground of this action, and another note for about tbe same sum, which they held as tbe agents of John Codman, and in trust for bis use ; in such case, those payments of moneys may be applied to tbe discharge of those two notes ; unless tbe jury shall be satisfied by testimony, that tbe said defendant did make those payments, or any of them, for some other purpose or purposes respectively. “ Tbe plaintiff bad offered to prove, by tbe testimony of Andrew Ramsay, that tbe payments or advances of money to him and William Ramsay, charged in tbe account offered by tbe defendant, William Wilson, in the words and figures following [here was inserted an account-current made out by tbe defendant against A. & W. Ramsay, containing among others, sundry debits and credits of cash, subsequent to tbe time when tbe 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 commenced in April 1797, and continued to October 15th 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. & 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 21st January 1800, saying, that he had paid a small part of the notes to A. & W. Ramsay, and would gladly settle the remainder, if it was in his *power ; the second dated 25th February 1800, offering to pay the notes in real estate or to give a mortgage] “ whereupon, the court refused to give the instruction as prayedto which refusal the defendant excepted. The 3d bill of exceptions was-.to the opinion of the court, that it wag 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. & W. Ramsay from the said John Codman. The 4th bill of exceptions was to the admission of the note and indorsement in evidence to the jury, the indorsement being in these words : “We assign this note to John Codman, without recourse,” and signed by A. & W. Ramsay, the payees of the note ; inasmuch as the indorsement varied from that set forth in the declaration; the former being “ without recourse,” and the latter “ for value received.”