US SUPREME COURT DECISIONS

A note payable at sixty days cannot be given in evidence to support a count upon a note which count does not state when the note was payable. The variance is fatal.

Upon executing a writ of inquiry in Virginia in an action of assumpsit upon a promissory note, it is necessary to produce a note corresponding with that stated in the declaration, but it is not necessary to prove the note.

The plaintiff cannot give evidence that the variance was the effect of mistake or inadvertence of the attorney and that the note produced was that which was intended to be described in the declaration.

This cause having been sent back to the circuit court by the mandate of this Court at February term 1810, 10 U. S. 10 U.S. 253, commanding that court to render judgment for the plaintiff on his first count and to award a writ of inquiry of damages, upon executing that writ of inquiry, the plaintiff produced the following note.

"Alexandria 17 July, 1804"

"Sixty days after date, I promise to pay to Mr. James Sheehy, or order, six hundred and four dollars and ninety one cents, for value received, negotiable in the Bank of Alexandria."

"R. B. JAMESON"

The note was thus described in the declaration,

"And whereas the said defendants under the name, firm, and style aforesaid, did on 17 July, 1804, make their certain note in writing called a promissory

Page 11 U. S. 209

note, subscribed by them under the name, style, title and firm of Robert B. Jameson, bearing date the same day and year, and then and there delivered the said note to the plaintiff, and by the said note, did, under their firm aforesaid, promise to pay to the said plaintiff or to his order $604.91 for value received, negotiable at the Bank of Alexandria, by reason whereof and by virtue of the law in such cases made and provided, the said defendants became liable to pay to the said plaintiff the said sum contained in the said note according to the tenor and effect of said note, and being so liable. . . ."

Which note the court below refused to suffer the plaintiff to read in evidence to the jury because it varied from that set forth in the declaration, to this refusal the plaintiff excepted. The plaintiff then contended before the jury that the existence, the execution, the amount, and the validity of the note set out in the declaration were determined by the judgment of the court upon the demurrer, and claimed damages to the full amount of that note without producing it. But the court, upon the motion of the defendant, instructed the jury that it was necessary for the plaintiff to produce the note or sufficiently account for its nonproduction -- otherwise the jury may and ought to presume that the note has been paid or has been passed away by the plaintiff to a third person for value received, and in such case ought to assess only nominal damages. To this instruction the plaintiff also excepted.

The plaintiff then, in order to rebut the presumption that the note mentioned in the declaration had been paid or passed away to a third person for a valuable consideration, produced and offered to show to the court and jury the record and judgment on the defendant's first and second pleas, which had been adjudged bad upon demurrer, and also the same note in the said pleas mentioned to have been the foundation of the suit and judgment set forth in the said pleas, which was a separate suit and judgment against R. B. Jameson upon the same note as the sole note of Jameson, and which judgment Mandeville had pleaded in bar to the present action, averring the note to be the same, but which chanrobles.com-redchanrobles.com-red

Page 11 U. S. 210

plea was by this Court adjudged bad on demurrer, and also the fieri facias issued against Jameson upon that judgment with the return of nulla bona, and also offered to prove by a competent witness that the promissory note produced to the jury, and in the said record of the suit against Jameson mentioned, is the same promissory note upon which the present declaration was founded, and the same which was intended to have been therein set out and described, and that the omission to state in the declaration the time in which the said note was originally made payable, arose from a mere oversight of the attorney who drew the declaration, and that there was no other note ever intended to have been described in that declaration or answering the description therein contained, but the court rejected the whole of the said evidence as incompetent, to which the plaintiff also excepted.

The jury assessed the plaintiff's damages, and judgment was rendered accordingly at one cent only, whereupon he brought his writ of error. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 216