January, ADDISON, by any adjudged cases. It is not of that class of cases where notice of the party's knowledge is necessary to be given. 1842. Russell v. Buck. The second point, that the memorandum might be considered as a settlement of the claim between the parties, is wholly unsupported by proof; and besides, the judge was not called upon so to charge the jury. The third point is equally untenable. The fact that Buck & Bailey owed the makers of this note, at that time, is too improbable. Even if the Gibsons were creditors at the moment this paper was signed, it is difficult to see how that circumstance could form a consideration or inducement for this agreement to pay this debt to another person at a future period. Besides, this would be setting up a different consideration from the one expressed in the paper. The case cited from 7 J. R. 361, Brown v. Mott, to this point, was the purchase of a note by paying for it, part in cash and part in a preexisting debt, the purchaser having knowledge that it was mere accommodation paper. Knowledge that a note is mere accommodation paper is not sufficient as against a bona fide holder. The fourth point, that this was an absolute undertaking, we consider as res judicata, and fully settled by the decision in this cause, 11 Vt. R. 166. To that decision we only add, that the case of Allen v. Rightman, 20 J. R. 364, and all the cases cited by the opposing counsel, and Dean v. Hall, 17 Wend. R., and Nash v. Skinner, 12 Vt. R., are cases where the guarantor either received a consideration, or there was some consideration passing from the promisee, at the time. The opinion of the court was delivered by BENNETT, J.-Under the charge of the court, the jury must have found that the defendant, at the time of giving the guaranty, had no knowledge of the existence of the facts, which would have defeated an action against the indorsers of the But it is said, in argument, that he was bound to give the plaintiff timely notice, after he was advised of the facts, of his intention to avoid the contract, and that, not having so done, it amounts to a waiver of that matter note. of defence. Is this so? The law never requires a useless ADDISON, act to be performed. In the case of forged paper, and where the effect of the delay would be to give an extended credit, there may be some good reason for requiring notice. The party may wish to look further, and to charge others. But the defendant's contract has been adjudged to be a conditional one, and that the plaintiff was bound to use reasonable diligence to collect the note of the makers, before he could resort to the defendant on his guaranty. 11 Vt. R. 166. He could not have been induced to alter his course by not having such notice. Whether Buck & Bailey were indebted to the Gibsons, at the time this guaranty was given, or not, can have no effect. There is no pretence that this entered into, and became a part of, the consideration of the defendant's contract and cannot be drawn in to aid in sustaining it. It has been said that the charge of the court was wrong in regard to the consideration of this contract, in making it dependant upon the fact whether this defendant was bound as an indorser or not, and it is insisted that it might have been given in settlement of a doubtful claim. To this it is a sufficient answer, that this is not the consideration set forth in the declaration, and there is no evidence tending to prove such a consideration, so as to call upon the court for any such charge. It is well settled that any defence, available against the payee of a negotiable note, may be set up against the holders of it, unless it has been bona fide passed "while currant in the due course of trade." In the state of New York, it seems to be settled that, when a negotiable note is passed by the payee, in payment, or as security, of a precedent debt, the holder does not receive it "in due course of trade," but that it must be received on account of a debt contracted at the time. Coddington v. Bay, 20 Johns. Rep. 651. Payne v. Cutter, 13 Wend. R. 605. Rosa v. Brotherson, 10 Wend. 85. Wendell et al v. Howell, 9 Wend. 170. This was a transaction in the state of New York, and mnst be governed by their decisions, even though we might differ from them. We see no reason why the case now before us should form an exception to the rule established in New York. The plaintiff January, 1842. Russell Buck. January, 1842. ADDISON, made no advance upon the note. His remedy against the Gibsons for his debt was not cancelled nor postponed by means of the fraud practised upon him, in passing to him a fraudulent security, and the result must be that Buck could not be chargeable as indorser of the note to the present holder. Adams et al. v. Howard. The court having, on a previous hearing, decided that the contract declared upon is conditional, the question cannot be considered open. Though the bill of exceptions presents other questions, yet, as they are not relied upon, it is sufficient to say we discover no error in the proceedings of the county court, and their judgment is affirmed. ADAMS & ADAMS V. SOLOMON HOWARD. The supreme court have not jurisdiction of a petition to set aside a default entered in the county court. The statute, authorizing the supreme court to grant a new trial on petition, does not extend to a judgment rendered on default. It is incident to the power of a court to set aside a default, at the time when it is entered, or at a subsequent time, on sufficient reasons. The facts in this case appear in the opinion of the court, which was delivered by WILLIAMS, Ch. J.-This is an application for a new trial in a case where the judgment in the county court was rendered by default. The decision in the case of Scott v. Stewart, 5 Vt. R. 57, is an authority against the jurisdiction of this court in this case, although that decision was made previous to the passage of the present statute. The statute now in force is similar to the statute of 1810, in relation to new trials, and applies only to those cases where a trial has been had. It requires the petition to be brought within one year, if the reasons assigned be matter of law, and two years, if the reasons assigned be the discovery of new evidence; evidently having reference to a case where a trial has been had. A default is not a trial, and it sometimes happens in consequence of some mistake of the party, or it is sometimes ADDISON, January, 1842. D. Hall and ordered for not complying with some rule of the court. The power to set aside a default, on application, either at the term in which it is entered, or at a subsequent time, on petition Probate Court and citation, is incident to the court where the default is entered, and is addressed solely to the discretion of the same Wentworth. court. The jurisdiction over such petitions is not given by statute to the supreme court, and it would be very inconvenient that it should be so. The reasons which would induce a county court either to permit or order a default, could not well be reexamined in the supreme court. We are satisfied that the decision in the case of Scott v. Stewart must govern the case. The petition is therefore dismissed with costs. PROBATE COURT for the District of New Haven v. WHEE- It is not error for a court to refuse an amendment, where, by the rules of law, they might have granted it. DEBT on an administrator's bond, executed to the Probate court for the district of New Haven, by Everett D. Hall, (deceased,) administrator of the estate of Azel Wentworth, as principal, and by the dsfendants as sureties. The action was commenced and prosecuted in the county court by Augustus White and T. Downey. Judgment having been rendered for the penalty of the bond, the plaintiff moved to amend the declaration by assigning additional breaches of the bond. Leave to amend was granted by the county court, and an amended declaration was filed, in the name of White, alone, as prosecutor. For this cause the defendants moved to dismiss the amended declaration, and the county court thereupon dismissed it. The plaintiff excepted to the decision. C. Linsley argued for plaintiff, and cited Bigelow's Dig. 67, 68. Statute, Slade's Comp. 334. D. Chipman's R. 262, H. Needham, A. Peck and Wm. P. Briggs for defendants. ADDISON, January, 1842. v. Sweat et al. The opinion of the court was delivered by REDFIELD, J.-In this case two prosecutors joined in putCallender ting the bond in suit. After the cause came into the county court, the plaintiff moved to amend the declaration, by assigning breaches anew. This leave was granted, and when the new declaration was filed, it was in the name of one of the prosecutors only. For this reason the defendants moved to dismiss it, and the county court sustained the motion, or, in other words, refused to suffer any such amendment. Whether that court could have allowed any such amendment, is a question not now before us. They clearly had power, in their discretion, to refuse it. All amendments rest in the discretion of the court where the case is pending, so far as the amendment asked is of that character which may be made consistent with the rules of law. It is never a ground of writ of error for a court to refuse any thing resting in discretion. If a court should grant an amendment improperly, i. e. in a case where, by the rules of law, the matter was not amendable, it would be ground of error, but not when they refuse an amendment which they might have allowed. Judgment affirmed. CLARK CALLENDER V. ISAAC D. SWEAT and LEVI S. Lewis. Where it was attempted to be proved that a partnership existed between two persons as innkeepers, &c., by the admission of one of the alleged partners, and by the course and circumstances of their business and their joint use of the property, connected with the tavern house, it was held that an assignment of the tavern furniture and accounts, by the other alleged partner, to a third person, for the payment of the assignor's debts, might be given in evidence as tending to rebut the testimony on the part of the piaintiff, and to show that the alleged partners had not been in the joint receipt of the income of the tavern. ASSUMPSIT, for money paid, money had and received and money lent, against the defendants, as partners. Sweat was defaulted, in the county court, and Lewis pleaded non-assumpsit. Issue to the country. |