Steamboat Charlotte v. Lumm ex rel. Hammond

9 Mo. 63

• Court: Supreme Court of Missouri
• Decided: January 15, 1845
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the court.

This is a suit involving the principles determined in the case of the steamboat Charlotte vs. John R. Hammond, decided at this term of the court. The fact that the note given in liquidation of the account, was not produced on the trial, constitutes the only difference between the cases. Hoffman, the owner of the boat, who executed the note, had been declared a bankrupt and obtained a final discharge before the com-meneement of the suit.

The law seems to be well settled, that although a promissory note does not extinguish the original cause of action for which it was given, without a special contract imparting to it that effect, but only suspends the right to sue during the time the note has to run, yet it is so far regarded as a payment, that the party to whom it has been given, cannot recover on the original cause of action without producing the note on the trial, and cancelling it or accounting for its non-production. Angel vs. Felton, 8 John, 149; 1 John, 34; Holmes vs. DeCamp; Raymond vs. Merchant, 3 Cow. 147; Hughes vs. Wheeler, 8 Cowen, 77.

Although Hoffman obtained a final certificate under the bankrupt law yet that will not excuse the non-production of the note, as it might have been proved under the proceedings in bankruptcy.

Judgment reversed.