Gully v. Remy

1 Blackf. 69, 1820 Ind. LEXIS 12

Opinion

Blackford, J.

One question for consideration, respects the

validity of the plea which denies the assignment of the obligation. This case will readily be distinguished from actions of debt and assumpsit on promissory notes, where the general issue is a denial of the whole cause of action. Here the general issue is non est factum, which puts the plaintiff upon proving nothing morq than the execution of the deed. Any thing which goes to avoid it, or to deny any of the other matters stated in the declaration must be specially pleaded. Therefore to oblige the plaintiff, who is an assignee, to prove the assignment of the obligation, which is a material part of his case, the defendant must be permitted to select and traverse that fact by special plea. Peake’s Ev. 266, 268. — Smith v. Shields, 2 Bibb, 328 (1).

The other question respects the recovery of interest on the obligation from its date. This interest, it is contended, is nothing more thana penalty. The case of Rumsey v. Matthews, 1 Bibb, 242, is in point upon this question. We think the judgment of the Court, and their reasoning, in that case correct. Our opinion, therefore, is, that the Circuit Court acted rightly in allowing interest on the obligation from its date.

Holman, J., was absent in consequence of indisposition.

Per Curiam.

The judgment is reversed, and the proceedings up to the plea are set aside, with costs. Cau.se remanded for further proceedings.

Footnotes

(1)

In debt by the assignee of a bail bond, the obligor may deny the assignment by special plea. 2 Will. Saund. 61, b, note. So, in an action by the assignee of a petitioning.creditor’s bond. Per Lawrence, J., in Smith v. Broomhead, 7 T. R. 296, 300. — Per Ellenborough, C. J., in Smithey v. Edmonson, 3 East, 22, 34. In debt on a bail bond by the assignee, if non est factum be pleaded, the plaintiff must prove the execution of the bond, but he needs not prove the assignment. Peake’s Ev. 268. In debt, on a bond, by the assignees of a bankrupt, the defendant pleaded payment, and insisted that the plaintiffs should prove themselves assignees; but C. J. Ellenborough ruled it not to be necessary, and stated the general principle to be, that a party who puts himself upon one issue admits all-the rest. Corsbie v. Oliver, 1 Stark. Rep. 76. — Vide 1 Chitt. Plead. 478-481. — Gardner v. Gardner, 10 Johns. Rep.47. — Denton v. Bours, Anth. Rep. 177, and note. — Thomas v. Woods, 4 Cowen’s Rep. 173.