
    
      B. H. Bradley, administrator of Henry Long, v. Jas. Long.
    The fact that a note has been destroyed, will dispense with strict proof of tire hand-writing, &c. Whatever will satisfy the jury that it once existed, will be sufficient.
    The description of a lost note in the declaration containing blanks as to the time after the date when it was due and payable, and also as to the date of the note, is technically insufficient, and would have been ground for special demurrer; but where the count contains an averment that “ the sum of money in the said promissory note hath been long due and payable,” &c. this will, after verdict, sustain the recovery.
    The declarations of a deceased payee, that “he would never claim any thing from the maker of the note,” &c. though they could not have any effect as a release, discharge, or extinguishment of -the debt, yet are not of a revocable character, and. are properly to be submitted to the jury as evidence of payment.
    Where it was manifest that a payment, beyond what the jury allowed, had been made on the note, and more than eleven years had elapsed after tire death of the payee before the suit was brought, the Court granted a new trial, subject to the restriction that tire pleadings should not be varied.
    Leave to plead the Statute of Limitations, or airy other plea, on granting a new trial, is altogether a matter of discretion with the Court. — Vide Lamarr v. Rmmdt/ree Glover, 1 Brev. 164.
    
      Before Mr. Justice Withers, at Union, Fall Term, 1847.
    This was an action in debt, brought upon a note alleged to have been destroyed, and to have been executed by the defendant in favor of the deceased, for the sum of four hundred and forty-four dollars.
    In one count it was alleged to have been under seal — in other counts it was described as a promissory note, not under seal. The substance of it was stated in the bill of particulars, in various forms. Payment was pleaded by defendant.
    For the plaintiff, the testimony of Sarah Willis, a sister of Henry Long, deceased, and of the defendant, was adduced in commission, who said: That in the fall of 1832, a settlement took place between Henry and James Long, at her house; she believed it to be November, 1832, because, at the time of the transaction, James Long was at her house, in company with his sister, on the way to Tennessee, where the witness resided when examined. The next morning after the settlement, Henry Long exhibited to her a note on James Long, calling for $444; she did not hear the note read, but looked at it; was worded as a common promissory note; does not remember whether it was under seal. Henry said he had accounts to collect for James. She does not know the result of the settlement — -nor who fell in debt. Soon after Henry’s death she and her mother found the note, and her mother ordered it to be destroyed, which John Ezell executed by throwing it in the fire. She heard Henry Long say nothing but what is above stated — to wit — he had accounts to collect for James.
    For the purpose of indicating how the indebtedness of James to Henry Long arose, the plaintiff introduced and proved, by a witness who saw it- executed, a note signed by Henry Long, dated 9th Nov. 1832, in favor of John McLure, at one day, for $33, “on account of James Long,” as was stated in the note. The foundation of this note was an account of McLure, appearing in his book, which was produced, against James Long, for $20 68, and a due bill or small note also held by McLure against James. On this note of Henry Long his administrator (the present plaintiff) had been sued, and his plea of plene administravit prceter had been sustained.
    Henry Long died on 7th Jan. 1834; the writ in this case was lodged on 22d February, 1845.
    For the defendant, the deposition of Mrs. Elizabeth Long (the mother of Henry Long) was produced, who said: That on the Saturday morning before the death of Henry Long, he said he never should claim any thing from James ; that he had already collected more by debts due and owing to James, in this country, than he expected, and live or die he should never pay him one cent. These observations were made in consequence of a dream Henry had (perhaps the night before) concerning James. She further said, that James had left a mare with Henry, which she (the witness) on some occasion when Henry was absent sold for $90, and paid that sum to Henry as payment on James Long's debts to him. She was present when Henry Long’s papers were examined after his death; saw a paper called a note, though she could not read. “I (said she) detained said paper, and never handed it to the administrator, because I supposed that I and James had paid it. James went to Tennessee a year after-Henry’s death.” The language attributed by this witness to intestate, in another part of her examination, was, that he would make no further claim on James.
    Such was the whole testimony, and the defendant’s counsel insisted, before the jury, that payment had been proved ; that no time had been fixed when the note was dué, and that it had been released. These positions were replied to on behalf of plaintiff, and the cause was fully argued to the jury.
    The Presiding Judge. I directed the jury to enquire whether such a note as that described in the declaration, in any count, ever existed, and if so, whether it had been lost"? When was it due and payable ? Has it been paid in whole or in part ? I advised them that the plaintiff must prove the existence and loss, or he must fail; that he ought to prove substantially also the terms, and satisfy them as to some period when it was due, if he would claim interest. That as plaintiff admitted as a credit the $90 which the mother of intestate said she had paid as proceeds of defendant’s mare, that of course must be allowed, and considering that such sum was paid to intestate in his lifetime, and he died in Jan. 1834, perhaps they might be satisfied that the note was due before his death, or at that time at any rate. I held that Henry Long’s observations, as proved by his mother, Elizabeth, were not ex vi termini, an extinguishment or release of the note; that they were revocable, and the jury might, if they so concluded, regard his expressed intention revoked by retaining the note — by entering no satisfaction on it — by not. remitting it to James, or destroying it. It was, however, open to them to consider whether Henry’s observations afforded a satisfactory presumption that the debt was paid.
    I did not charge the jury upon any such defects m the declaration as seem to be referred to in the second ground of appeal, for I supposed such questions were to be debated and decided on demurrer or motion for non-suit, and 1 heard nothing of either demurrer or motion for non-suit. Nor was any thing said or any motion made on the matter of the first ground, except as it was involved in the question of the existence of the note. It will be seen, from what has already been said, that the broad question of payment, in whole or in part, was referred to the jury; and though they were told, that as matter of law, what Henry Long said, as to requiring nothing more of James, was-not payment, yet they were left to consider the force and effect of it as evidence on that point. Whether any thing, and how much, should be allowed, in addition to f 90, as arising from collection of accounts in favor of James, was left to the jury, though I believe it was suggested to them, as is quite manifest in fact, that no specific amount, arising from this source, had been established by the defendant.
    The verdict was in favor of plaintiff for $354, with interest from 1st Jan. 1834.
    The defendant appealed, on the following grounds, viz:
    1st. Because there was no proof of the hand-writing or genuineness of the note.
    2d. Because there is not a sufficient description of the note in the declaration or bill of particulars; and the proof left it uncertain as to the date of the note, or when it fell due; and the verdict gives interest from eighteen hundred and thirty-four.
    3d. Because the Court charged the jury, as matter of law, that the defence of payment could not avail the defendant, except as to the sum of ninety dollars, when the Court should have charged the jury that under the circumstances of the case, payment was a question of evidence for them.
    4th. Because the evidence established the defence .of payment or satisfaction, and the verdict is contrary to law and evidence.
    HerNdoN, for the motion.
    The note is not proved in this case. The witness did not say she knew the hand-writing of the alleged maker. Nor is there any proof of the date of the note. The date of payment was left blank both in the declaration and in the bill of particulars. It is not alleged when it is due, still the jury undertake to give interest from a date certain. It is not alleged or proved whether the note was negotiable or not, which should have been done. If a description of the note is attempted, it must be proved strictly. —Miller v. Steen, Har. 386. How could defendant have demurred to the defect 1 How could he have known that the proof would not support the count 7 Does the - evidence sustain it 7 There is no evidence ! The declarations of Henry Long were an admission of satisfaction, and they were irrevocable; although, from the charge of the Judge, the jury determined otherwise.
    Dawkins, contra.
    
    It was for the jury to decide whether the witness did or did not intend to prove the hand-writing of the maker of the note. The count is good. If the proof did vary from the allegata, the verdict has corrected the defect. Demurrer, or motion for a non-suit, should have been made at the trial below. The count sufficiently informed defendant of the nature of plaintiff’s claim, and was a sufficient bar to any future action for the same demand. This is the first object of declaring. Defendant took no exceptions below, and after allowing the jury to decide, should not now claim a new trial. There was only a declaration of an intention on the part of the intestate not to claim any thing from his brother, and it was revocable. It showed that he had an enforcible claim on him. A bill destroyed can be recovered at law..— Chitty on Bills, 155.
   O’Neall, J.

delivered the opinion of the Court.

As to the first ground, I think the fact that the note was destroyed, dispensed with strict proof. Whatever satisfied the jury that it once existed, was enough. In the testimony of Mrs. Willis, a sister of the defendant, proof may be found quite sufficient to establish the note. For she proves a settlement between the plaintiff’s intestate and the defendant, at her house, in the fall of 1832 (Nov.): the next morning the intestate, she says, exhibited to her a note on her brother James, the defendant, for $444. She says she looked at it; and it is to be inferred (especially as I see, from the depositions, she writes her own name,) that if she had not known her brother’s hand-writing she would have said so, and not have spoken of the note in the manner in which she did.

2d. The description of the note, in the declaration, containing blanks as to the time after the date when it was due and payable, and also as to the date of the note, was no doubt technically insufficient, and might have been ground for special demurrer: but as the count contains an averment that “the sum of money in the said promissory note hath been long due and payable,” &c. this will, after verdict, sustain the recovery. Indeed any general description of a'lost paper will be sufficient. After verdict, the Court will regard the declaration as a general description of a lost note, and that it was due and payable before it was destroyed; and this conforms to the verdict, which gives interest from the 1st Jan. 1834, more than a year after the note was made, and after a payment had been made upon it.

3d. It does not appear that the Judge gavo the instruction, as set out in this ground. Instead of it, he left the question of payment, with very proper remarks, to the jury, unless it be that there was some slight error in saying to them that the observations of Henry Long, proved by his mother, that “he would never claim any thing from James; that he had already collected more by debts due and owing to James than he expected, and live or die he.should never pay him one cent,” were not ex vi-termini an extinguishment or release of the note; that they were revocable, and the jury might, if they so concluded, regard his expressed intention revoked, by retaining the note — by entering no satisfaction on it — by not remitting it to James, or destroying it. I agree with the Judge that these observations of Henry Long could not have any effect as a release, discharge, or extinguishment of the debt. It was, as he afterwards submitted to the jury, merely evidence of payment. There was not, however, any thing of a revocable character in it, and no inference of any kind ought to have been made from the few days intervening between the observations and the sudden termination of Henry Long’s life.

4th. But on the fourth ground wé think a new trial ought to be had. The evidence of payment is certainly very strong. Ninety dollars was paid in the mare. That has been deducted, and so far all is right. But how much did he receive otherwise? His sister says Henry Long said “he had accounts to collect for Jamesto his mother he said that “he should never claim any thing from James — he said he had already collected more by debts that were due and owing to James Long, in this country, than he ever expected, and let him live or die, he should never pay him one cent.” The inference would be ordinarily, from such proof, that the debt had been paid. When to this is added the fact that the mother of both Henry and James, soon after the death of the former, when his papers were examined and this note was found, repeated this declaration, and as the result of her conviction that the note ought not to have effect, ordered it to be burnt, and it was accordingly so done, it furnishes another strong circumstance in aid of the inference of payment. It is true the jury have found otherwise, and generally, I concede, their verdict ought to conclude the matter. But as it is manifest a payment beyond what they have allowed was made, in the collection of James Long’s accounts, and as more than eleven years passed away after the death of Henry Long before this action was brought, we think the case deserves another investigation, in which, perhaps, more light can be obtained. But as this is -very much a favor to the defendant, we will not suffer him to obtain any advantage by varying the pleadings. The case must be tried again, on the pleadings as they now stand. For the leave to plead the statute of limitations or any other plea, on granting a new trial, is altogether a matter of discretion in the Court.—Lamar v. Roundtree & Glover, 1 Brev. Rep. 164.

The motion for a new- trial, subject to the restriction that the case is to be tried on the pleadings as they now are, is granted.

The whole Court concurred.

Motion granted.  