Newall v. Hussey

18 Me. 249

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1841
• Status: Published

Opinion

The opinion of the Court was by

Shepley J.

By the law of this State, a debt due on account is considered as paid and the contract extinguished by taking a negotiable promissory note for the amount. While the common law regards it only as security for an existing debt, the note is here evidence of a new and different contract unless the contrary is made to appear.

The letter of the defendant, under date of 21st November, does admit that the note originated from the account sued ; it does not however rebut, but rather confirms the presumption of law, that it was received in discharge of the previous contract.

If the original contract no longer existed after taking the note, it would seem to follow, that the note must be a new cause of action. And so it has been decided to be in Massachusetts where the like rule of law prevails. Vancleef v. Therasson, 3 Pick. 12.

In our practice amendments are not permitted to introduce a new cause of action. It is within the discretion of the Judge of the District Court to permit amendments in all cases where by law the writ or declaration is amendable; and this court does not revise that exercise of discretion. But if an amendment be permitted, which the law does not authorize, the party has a right to except.

This amendment must be regarded as unauthorized, because it introduces a new cause of action.

Exceptions sustained and plaintiff nonsuited.