Brown, President.
This wa3 an action of debt on a bill of exchange, and the only plea in the cause was a plea of payment.
[498]*498And the first question to be determined is, whether in such case the plea confesses the cause of action as set forth in the declaration, or, in other words, admits the bill of exchange as described.
It is contended for the defendant that it does not, and that the plaintiff is bound notwithstanding to prove his ease by the production of the bill of exchange corresponding with that described in his declaration. It is'well settled that if the defendant had pleaded payment and nii debit, or any plea that could raise the general issue, the plaintiff would have been put upon the proof of his case.
It is equally true that under the statute where judgment has been entered and confirmed by default and not set aside before the fifteenth day of the next succeeding term of the court, that it is necessary to produce the bond or note to the clerk to enable and to guide him in issuing the execution on the judgment, and give such credits as may be endorsed thereon.
The case of Moore vs. Fenwick, Gilmer, 214, relied on by the defendant, will be found to turn upon the fact that it was an action on a penal bond, with condition to be discharged by the payment of a different sum, &c.
In such a case the declaration need only state the penal sum and not notice the condition, and if the defendant fail to crave oyer of the bond and condition, or otherwise plead the condition, the real matter of litigation would not come to the notice of the court, unless the bond declared on, of which proferí had been made, were produced.
There would seem, therefore, more reason for the production of the bond in such a ease than in the case of a simple note or writing obligatory of bill or exchange for a sum certain with no such collateral condition.
And the court in that ease assigns as the reason why a bond of which proferí has been made should be produced that “in all actions of debt upon bonds for the payment of money, judgment is to be rendered for the penalty to be discharged by the payment of the principal money and the [499]*499interest due thereon, which cannot be ascertained but by inspecting the same to see the amount and dates of the credits endorsed thereon.” That this decision was made under the influence and in effectuation of the statute is manifest from the words of Judge Coalter in the case. “ He (the defendant) had a right to see the bond and take advantage of the condition. If he had pleaded regularly it would have been after taking oyer of the bond and condition, which would in that case have made them part of the declaration, and then he could have pleaded non est factum, or have demurred for the variance; but if he had, after oyer, pleaded payment, could he then take advantage of the var-riance ? I incline to think not. Before the statute, the defendant, to avail himself of the condition, must have taken oyer and pleaded payment before the day. Since the act he may plead payment before suit brought; but I do not understand that this act changes the form of pleading.
“ The plea of payment is an affirmative plea and the defendant takes the onus 'probandi on himself, and has the right to introduce his evidence and to open and conclude the argument. If the plaintiff was bound to produce his evidence first, then he would have the onus probandi on him, and could'open and conclude. The plea is not to the bond, it is that he has paid the debt in the declaration mentioned; had he craved oyer and pleaded non est factum the onus probandi would be on the plaintiff. Every plea in bar must go to the whole action; must either deny that the cause of action ever existed, as non est factum to a bond, or must confess the original cause of action and avoid it by matter since as payment; a plea by a party in court confessing and avoiding cannot have a less effect as to the admission of the debt ori-nally than a judgment by default.
“In slander, if justification be pleaded and the defendant fails in his proof speaking the words need.not be proved to entitle the plaintiff to full damages. So if payment is pleaded to a bond with the condition to pay a less sum, if the defendant, does not crave oyer of the condition he cannot avail himself of it on the trial, except by virtue of the [500]*500statute, in which case the court is ex officio, if required, to enter judgment according to the condition.”
Judge Tucker, in a note on the case of Moore vs. Fenwick, says the “plea of payment in England admits the bond, and it need not be produced in evidence, but in Virginia it is said where profert is made the defendant has a right to have the bond produced, and if when it is produced, there is a variance, it is fatal. Yet though there be profert it has been decided that on the plea of payment a copy may be given in evidence if the original be proved to be lost.”
This ruling, in an action upon a penal bond, with collateral condition, of which profert has been made under the influence of the statute which authorized the court ex officio if required, to enter judgment’for the condition, should not be extended further than the class of cases which required it.
It ought not to be, as it surely was never intended, to subvert the well settled rules of pleading and evidence in all other classes of cases not required by the rule, nor within the influence of the principle or the statute affecting that. case.
The very object of pleading is to produce an issue or an agreed state of facts. If the pleadings result in an issue the parties proceed to settle that issue by proofs, but'if the pleadings result in an admitted or agreed state of facts, there could be no need of proofs for the end is attained and there is nothing further to be done but to pronounce the judgment of the law upon the facts confessed.
The plea of payment admits the debt “it is not to the bond,” as Judge Coalter said in the case of Moore vs. Fenwick, and “it admits the bond,” as Judge Tucker says is the rule in England, and I have no hesitation in saying it is equally the rule in West Virginia, and wherever else the common law rule prevails, and this view of the ease is fully sustained by the case of Hubbard vs. Blow, 4 Call., 224.
I think, therefore, that the circuit court erred in requiring the plaintiffs to answer the interrogatories which were immaterial to the issue, if the plea of payment be held the only plea in the cause which was, whether or not the defendant! [501]*501had paid the debt in the declaration mentioned. For the same reason the court erred in overruling the plaintiff’s objection to the admission as evidence of the said interrogatories and the answer thereto; and all the othe.i evidence offered to show that the debt was not and never had been the debt of the defendant, but was a debt of the Forest Hill Mining and Manufacturing Company; in fine, all the evidence offered and tending to disprove that the cause of action ever existed which, the plea had confessed.
And for the same reason the court erred in overruling the plaintiff’s motion for a new trial.
Free access — add to your briefcase to read the full text and ask questions with AI
Brown, President.
This wa3 an action of debt on a bill of exchange, and the only plea in the cause was a plea of payment.
[498]*498And the first question to be determined is, whether in such case the plea confesses the cause of action as set forth in the declaration, or, in other words, admits the bill of exchange as described.
It is contended for the defendant that it does not, and that the plaintiff is bound notwithstanding to prove his ease by the production of the bill of exchange corresponding with that described in his declaration. It is'well settled that if the defendant had pleaded payment and nii debit, or any plea that could raise the general issue, the plaintiff would have been put upon the proof of his case.
It is equally true that under the statute where judgment has been entered and confirmed by default and not set aside before the fifteenth day of the next succeeding term of the court, that it is necessary to produce the bond or note to the clerk to enable and to guide him in issuing the execution on the judgment, and give such credits as may be endorsed thereon.
The case of Moore vs. Fenwick, Gilmer, 214, relied on by the defendant, will be found to turn upon the fact that it was an action on a penal bond, with condition to be discharged by the payment of a different sum, &c.
In such a case the declaration need only state the penal sum and not notice the condition, and if the defendant fail to crave oyer of the bond and condition, or otherwise plead the condition, the real matter of litigation would not come to the notice of the court, unless the bond declared on, of which proferí had been made, were produced.
There would seem, therefore, more reason for the production of the bond in such a ease than in the case of a simple note or writing obligatory of bill or exchange for a sum certain with no such collateral condition.
And the court in that ease assigns as the reason why a bond of which proferí has been made should be produced that “in all actions of debt upon bonds for the payment of money, judgment is to be rendered for the penalty to be discharged by the payment of the principal money and the [499]*499interest due thereon, which cannot be ascertained but by inspecting the same to see the amount and dates of the credits endorsed thereon.” That this decision was made under the influence and in effectuation of the statute is manifest from the words of Judge Coalter in the case. “ He (the defendant) had a right to see the bond and take advantage of the condition. If he had pleaded regularly it would have been after taking oyer of the bond and condition, which would in that case have made them part of the declaration, and then he could have pleaded non est factum, or have demurred for the variance; but if he had, after oyer, pleaded payment, could he then take advantage of the var-riance ? I incline to think not. Before the statute, the defendant, to avail himself of the condition, must have taken oyer and pleaded payment before the day. Since the act he may plead payment before suit brought; but I do not understand that this act changes the form of pleading.
“ The plea of payment is an affirmative plea and the defendant takes the onus 'probandi on himself, and has the right to introduce his evidence and to open and conclude the argument. If the plaintiff was bound to produce his evidence first, then he would have the onus probandi on him, and could'open and conclude. The plea is not to the bond, it is that he has paid the debt in the declaration mentioned; had he craved oyer and pleaded non est factum the onus probandi would be on the plaintiff. Every plea in bar must go to the whole action; must either deny that the cause of action ever existed, as non est factum to a bond, or must confess the original cause of action and avoid it by matter since as payment; a plea by a party in court confessing and avoiding cannot have a less effect as to the admission of the debt ori-nally than a judgment by default.
“In slander, if justification be pleaded and the defendant fails in his proof speaking the words need.not be proved to entitle the plaintiff to full damages. So if payment is pleaded to a bond with the condition to pay a less sum, if the defendant, does not crave oyer of the condition he cannot avail himself of it on the trial, except by virtue of the [500]*500statute, in which case the court is ex officio, if required, to enter judgment according to the condition.”
Judge Tucker, in a note on the case of Moore vs. Fenwick, says the “plea of payment in England admits the bond, and it need not be produced in evidence, but in Virginia it is said where profert is made the defendant has a right to have the bond produced, and if when it is produced, there is a variance, it is fatal. Yet though there be profert it has been decided that on the plea of payment a copy may be given in evidence if the original be proved to be lost.”
This ruling, in an action upon a penal bond, with collateral condition, of which profert has been made under the influence of the statute which authorized the court ex officio if required, to enter judgment’for the condition, should not be extended further than the class of cases which required it.
It ought not to be, as it surely was never intended, to subvert the well settled rules of pleading and evidence in all other classes of cases not required by the rule, nor within the influence of the principle or the statute affecting that. case.
The very object of pleading is to produce an issue or an agreed state of facts. If the pleadings result in an issue the parties proceed to settle that issue by proofs, but'if the pleadings result in an admitted or agreed state of facts, there could be no need of proofs for the end is attained and there is nothing further to be done but to pronounce the judgment of the law upon the facts confessed.
The plea of payment admits the debt “it is not to the bond,” as Judge Coalter said in the case of Moore vs. Fenwick, and “it admits the bond,” as Judge Tucker says is the rule in England, and I have no hesitation in saying it is equally the rule in West Virginia, and wherever else the common law rule prevails, and this view of the ease is fully sustained by the case of Hubbard vs. Blow, 4 Call., 224.
I think, therefore, that the circuit court erred in requiring the plaintiffs to answer the interrogatories which were immaterial to the issue, if the plea of payment be held the only plea in the cause which was, whether or not the defendant! [501]*501had paid the debt in the declaration mentioned. For the same reason the court erred in overruling the plaintiff’s objection to the admission as evidence of the said interrogatories and the answer thereto; and all the othe.i evidence offered to show that the debt was not and never had been the debt of the defendant, but was a debt of the Forest Hill Mining and Manufacturing Company; in fine, all the evidence offered and tending to disprove that the cause of action ever existed which, the plea had confessed.
And for the same reason the court erred in overruling the plaintiff’s motion for a new trial.
But the important question still remains, and that is, whether upon the facts of this case, as shown by the record, if the defendant had pleaded the general issue in addition to the plea of payment, and thereby put the plaintiff's to the proof of their case, the finding'and judgment for the defendant were or were not sustained by the evidence ?
And this becomes the more important, as it was claimed in the argument that in fact the plea of nil debit was pleaded, and the ease tried upon that plea and the plea of payment, but that by some inadvertence the clerk omitted to enter the plea upon the record.
This view is strongly corroborated by the record which states that the “parties again came, by their attorneys, and thereupon the demurrer of the defendant to the plaintiff’s declaration being argued and considered was overruled. And neither party desiring that a jury should be empan-neled to try the issues in this causé, the court, in lieu of a jury, proceeded to try the same, and having heard the evidence was of the opinion that the plaintiffs were not entitled to recover of the defendant in this action.”
It is unquestionable then that there was some other plea in the case than the plea of payment upon which issue was joined, and upon which, as well as upon the plea of payment, the trial was had. But what that plea was is not stated, though the circumstances lead 'to the supposition that it was the general issue. If, therefore, the.evidence in [502]*502the cause should be held uot only applicable but sufficient to sustain that issue, since the appellate court can only determine what appears upon the record, it might become necessary to reverse the judgment and remand the cause with the leave to the defendant to replead.
Considering then the case on its merits, which is the real question in the cause, it becomes important to determine whether the evidence sustains the findings and judgment on the general issue. In other words, whether the bill of exchange sued on was the personal and individual contract of the defendant, Hale, or whether it was not. The learned counsel for the defendant has argued with force and ingenuity to show that upon the case made, the Fprest Hill Mining and Manufacturing Company was liable. However that may be, it is not necessary to the determination of this case, nor is it, the inquiry we are called on to investigate. The true question is, whether or not the defendant is liable. And after a careful consideration of the subject and a review of the authorities cited in the argument, I am led to the conclusion, without hesitaton or doubt, that the defendant was liable personally on the bill of exchange, which as between him and the holder is his own individual contract and undertaking; in other words, it purports on its face to be the order of the defendant and the addition of the word “Pres’t” to his signature does not shift the responsibilities from him to the company of which he was the president, so far as the plaintiffs are concerned.
I think, therefore, that the judgment should be reversed, with costs to the plaintiff-in error, the verdict or finding set aside, ahd the cause remanded to the circuit court of Kan-awha, to be there proceeded in, and a new trial granted the plaintiff upon payment of the costs occasioned thereby. And upon said new trial to be had, the said circuit court is to conform to the principles above indicated.
The remaining members of the court concurred.
Judgment reversed.