Camden et al. v. Robertson.

THIS cause was tried, at the October term, 1840, of the Court below, before the Hon. Peter Lott. Judgment was rendered for the defendant. The plaintiffs brought the cause to this Court by writ of error.

S. H. LITTLE and A. WILLIAMS, for the plaintiffs in error.

J. H. RALSTON, and J. A. McDOUGALL, for the defendant in error.

LOCKWOOD, Justice, delivered the opinion of the Court:

This was an action of debt, by petition and summons, commenced by the Camdens against Robertson, on two promissory notes. The defendant pleaded nil debet, on which issue was joined; also payment, to which plaintiffs replied that defendant did not pay, and issue was thereupon joined.

The cause was tried by a jury. On the trial of the cause, the plaintiffs read two promissory notes without objection. The defendant then called a witness, and offered to prove that Marbell Camden, one of the plaintiffs, was dead at the commencement of this suit, to which the plaintiffs objected. The Court overruled the objection, and permitted the proof. The witness stated that he was informed by John B. Camden, one of said plaintiffs, that the said Marbell Camden was dead; he also heard other persons in St. Louis say the same. He had also seen a notice of his death in a newspaper.

This being all the evidence, the defendant asked the Court to instruct the jury, that if they believed from the evidence, that the said Marbell Camden was dead when this suit was commenced, they must find for the defendant; which instruction was given.

The plaintiffs asked the Court to give the following instructions to the jury, to wit, "If they believed from the evidence, that the defendant made the notes in the petition mentioned, to the said plaintiffs, as stated in the petition, and that said notes have not been paid by the defendant, then they will find a verdict for the plaintiffs. That the jury were to confine their enquiries to the matters put in issue by the pleas of the defendant, and that unless they believe the evidence given on the trial, supports the pleas, they must find for the plaintiffs;" which instructions the Court refused to give. To the reception of the evidence and instructions given, as well as to the refusal to give the instructions asked by them, the plaintiffs excepted. The jury found a verdict for the defendant, on which judgment was rendered.

The assignment of errors, questions the correctness of the proceedings in the Court below, on the trial.

The evidence was inadmissible. If one of the plaintiffs had died before the commencement of the suit, this fact was no bar to the action, and could only be available to the defendant by pleading in abatement. (1)

(1) 1 Chit. Plead. 482.

Collins v. Robinson.

The evidence being inadmissible, the instruction given on the prayer of the defendant, was clearly wrong.

The Court also erred in refusing the instructions asked for by the plaintiffs.

The judgment is consequently reversed, with costs, and the cause remanded, with instructions to the Court below, to award a venire de novo.

Judgment reversed.

Note. Coleman v. Henderson et al., Ante 251.

JAMES A. COLLINS, administrator of the estate of WILLIAM H. WITHAM, deceased, plaintiff in error, v. GREENLEAF C. ROBINSON, defendant in error.

Error to Morgan.

A subsequent agreement, whether verbal or written, to make a contract payable at a specified place, does not confer jurisdiction on the Circuit Court, to award its process to a different county from that in which the Court is held. Under the statute, the contract is an entire thing, and cannot be made at different times, even on the same day.

Where a declaration did not show that the Court below had jurisdiction, and upon demurrer to a plea in abatement to the jurisdiction of the Court, the Court below decided for the defendant, and dismissed the cause, refusing permission to the plaintiff to reply: Held, that the Supreme Court would not investigate the regularity of the proceedings upon the plea and demurrer.

THIS cause was decided in the Court below, at the November term, 1839, before the Hon. William Thomas.

M. MCCONNEL and J. A. McDOUGALL, for the plaintiff in

error.

J. J. HARDIN, for the defendant in error.

LOCKWOOD, Justice, delivered the opinion of the Court :

The summons issued in this cause was directed to the sheriff of Schuyler county.

The declaration is in assumpsit, and states, that at the county of Morgan, the defendant made his certain promise in writing, dated the 20th day of April, 1835, by which Robinson, the defendant below, promised that on the first day of January, 1836, he would deliver to the said Witham, now deceased, or order, due bills on good and responsible men, endorsed by him, said defendant, for the amount and sum of $ 568,74, in consideration of certain goods sold by said Witham to said Robinson, which were afterwards, to wit, on the 20th day of April, 1835, agreed to be

Collins v. Robinson.

paid and delivered to the said Witham, in Morgan county. declaration contains no averment that Morgan county is the residence of the plaintiff.

The record contains several contradictory motions and orders, which it is unnecessary to notice.

At the second term after the return of the summons, a plea in abatement was filed, to which the plaintiff demurred, and the defendant joined. The Court below overruled the demurrer, and refused leave to the plaintiff to answer the defendant's plea in abatement; and thereupon quashed the writ, and dismissed the suit.

The assignment of errors questions the right of the defendant to file a plea in abatement at the third term, and avers that the Court erred in refusing permission to the plaintiff to file a replication to the defendant's plea in abatement.

It is however unnecessary for the Court to express any opinion upon the regularity of these proceedings, as the declaration is defective, in not showing that the Circuit Court of Morgan county had jurisdiction over the person of the defendant. of the defendant. Doubtless the plaintiff intended to confer jurisdiction on the Circuit Court of Morgan county, by the averment contained in the declaration, that after the making of the within contract to deliver the due bills, the defendant subsequently, on the same day, agreed to deliver them in Morgan county. This we consider insufficient.

The language of the statute authorizing process to be issued to a different county from that from which it emanates, is, "That hereafter, it shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides, or may be found, except in cases where the debt, contract, or cause of the action accrued in the county of the plaintiff, or where the contract may have specifically been made payable, when it shall be lawful to sue in such county, and process may issue against the defendant, to the sheriff of the county where he resides." (1) The contract designated in this provision of the statute, is an entire thing, and cannot be made at different times, so as to justify issuing the process to a different county. A subsequent agreement, whether written or verbal, to make a contract payable at a specific place, does not confer jurisdiction on the Circuit Court to award its process to a different county from that in which the Court is held.

The declaration being in this respect defective, it would be a useless expense to the parties, to send the cause back, even if the Court should be of opinion that the proceedings below were irregular. The judgment consequently is affirmed.

Judgment affirmed.

Note. See Beaubien v. Brinckerhoff, Ante 269, and note; Sheperd v. Ogden, Ante 257.

(1) R. L. 145; Gale's Stat. 166.

Evans v. Lohr.

JOHN W. EVANS, appellant, v. GEORGE LOHR, appellee.

Appeal from Morgan.

Where the Court has given improper instructions to the jury, or withheld such as are legal and appropriate, when asked for, the proper course to adopt to enable the Court to correct the error, and do justice to the parties, is for counsel to apply for a new trial.

The Court will never arrest a judgment, except for some intrinsic cause apparent upon the face of the record; where there is enough apparent upon the face of it, to enable the Court to give judgment upon the whole record, it will never arrest the judgment, nor will an application for that purpose be entertained, if made by the party committing the error.

It is no defence to an action upon a promissory note, that the plaintiff, in consideration of an agreement on the part of a third person, to pay additional interest on the note sued on, promised and agreed with the defendant, to extend the time of payment, to a time subsequent to the commencement of the suit; nor is the fact that the plaintiff, in consideration of the promise of a third person to pay the note, verbally discharged and released the defendant from the payment thereof. Such agreements on the part of the third person, are without consideration and void; and consequently the promise or release of the plaintiff, is

without consideration.

It is not the province of a Court to moot points of law, nor can it be required to give opinions upon abstract propositions. A bill of exceptions, therefore, should contain enough of the case to show the materiality or the application of the instructions asked.

Semble, That although the issue made by the parties in a cause, may be immaterial, yet the Court is bound, if called on by the defendant, to instruct the jury that if the evidence supports the issue, they must find for the defendant. Sed quere.

THIS was an action of debt commenced by the appellee against the appellant, on the 19th of October, 1839, by petition and summons, on two notes of $2,300 each, both dated March 11th, 1837, one due in twelve months, the other in two years from date.

At the November term, 1839, of the Morgan Circuit Court, the defendant filed three pleas. The first plea avers that previous to the commencement of the suit, the plaintiff agreed to and with the defendant and Joseph Duncan, upon the condition and for the consideration, that the said Duncan would promise and agree to pay the said several sums of money in the petition mentioned to the plaintiff, that he would cancel the notes sued upon, and surrender them up to this defendant; and that Duncan, at plaintiff's special instance and request, and by consent of the defendant, did promise and agree with the plaintiff, that he would pay to the plaintiff, the several sums of money in the petition mentioned, at a time thereafter agreed upon between him and Duncan, and that the plaintiff in consideration thereof, agreed to and with the defendant, to release him from the payment of the same. And the plaintiff did then and there, release and discharge the defendant, and accepted and received the said promises of the said Duncan, in full discharge of the defendant from the payment of the notes sued on, in the petition mentioned.

The second plea was nil debet.

Evans v. Lohr.

The third plea averred "that after the commencement of the suit, the plaintiff, in consideration that Joseph Duncan had promised the plaintiff to pay him eight hundred dollars in twenty days from the time of making said promise, and during the sitting of the Morgan county Circuit Court, at the November term, 1839; and also to pay him the residue of what might be remaining of the whole amount of the notes sued on, after deducting the $ 800, on the 1st day of March, 1840, he, the said plaintiff, agreed with said defendant, that he would dismiss the suit; and that the plaintiff did then and there release and discharge the defendant from all further payments and liabilities upon said notes; and the defendant avers that the promise and undertaking of the said Duncan, was for a valuable consideration received by him from the defendant, and was made at plaintiff's special instance and request."

Issue was joined upon the allegations of release in these pleas. The cause was tried before the Hon. William Thomas and a jury. The jury returned a verdict in favor of the plaintiff for $4231,19 debt, and $388,51 damages.

The defendant moved in arrest of judgment, which motion was overruled, and judgment rendered on the verdict. The defendant tendered his bill of exceptions, which was signed and sealed by the judge.

The defendant appealed to this Court.

The reasons assigned for an arrest of judgment, in the Court below, were as follows:

"First, The first instruction asked by the defendant, and preserved in the bill of exceptions, should have been given as a defence under the plea of nil debet, and the Court erred in overruling the instructions.

"Secondly, That under the pleadings in the cause, the defendant was authorized to show a verbal discharge, and that the same was a good defence, and that the Court erred in refusing to say to the jury that such was the law of the case.'

The bill of exceptions is as follows: "And now at this day came the said parties, and a jury having been impannelled to try the issue joined, and the evidence being closed, the counsel of defendant requested the Court to instruct the jury, That if in consideration of a promise or agreement on the part of Duncan to pay additional interest on the notes sued on, the plaintiff promised and agreed with defendant to extend the time of payment of said notes to a time subsequent to the commencement of this suit, or to the spring of 1840, they must find for the defendant. Which instructions the Court refused. The defendant's counsel then requested the Court to instruct the jury, that if they believed that for and in consideration of Duncan's assuming to pay the notes in the petition mentioned, the plaintiff verbally discharged and released the said defendant from the payment thereof, that then they must find for the defend