
    Hatch vs. Spearin.
    A special promise by the maker of a, note or instrument not negotiable in the hands of an assignee, to pay the note to him, does not merge the original promise on the note; — but the assignee may maintain an action in his own name upon the special promise to himself, or, in the name of the payee, upon. the note.
    
    On the note being again assigned, the second assignee could not avail himself of the special promise made to the first assignee, as the foundation of an action ; but he must resort to his action on the note.
    
    
      A party cannot avail himself of an omission of the Judge to charge the jury upon a particular point of law, although raised by the evidence in the case, unless the Judge be specially requested to give the instructions, the omission of which is complained of.
    This was an action of assumpsit founded upon the following receipt or memorandum in writing, viz :
    
    “ St. Andrews, April 6, 1829.
    Received from Harris Hatch, Esq. a note of hand dated at Calais-, Dec. 22,1828, payable ninety days after date, to William Thompson or order, for seventy pounds, payable at the Charlotte County Hank, drawn by Asa A. Pond, indorsed by said Thompson and one Thaddeus Ames, held by Elnathan Taylor, and by him left with the said Harris Hatch, to notify the parties, which said note I hold myself accountable for, and the amount thereof, or get a discharge from Elnathan Taylor to the said Harris Hatch, for the said note.
    
      William Spearin.”
    
    The suit was brought for the benefit of one Conner, to whom the memorandum or receipt had been assigned by one Taylor, the owner of the note, he having before deposited said note with Hatch, who delivered it to the defendant on his giving the foregoing receipt.
    It was proved that the defendant had repeatedly promised Taylor, while he had possession of the receipt, to pay him the amount of the note.
    The defendant’s counsel contended, that the promise testified to by Taylor, could not affect the defendant in this action, as well because it was made without any legal consideration, as because if made at all, it was to Taylor, and not to Hatch or Conner — and that any legal obligation created by said promise was not assignable, and would not aid in sustaining this action —■ and the Judge was requested to charge the jury to that effect. He instructed them that the action might be maintained on the receipt, independent of the said promise, which was not relied upon as the ground of action, but as an admission that the demand was due — that, in case of a promise to an assignee, upon an instrument not negotiable, he may maintain an action on that promise, but an action will lie in the name of the assignee upon the instrument.
    The counsel for the defendant further requested the Judge to instruct the jury, that the promise to Taylor while he had the note in his possession, took away or merged the cause of the present action. But the Judge declined so to instruct the jury.
    A verdict was returned for the plaintiff. If the instruction given was erroneous, or that which was requested ought to have been given, the verdict was to be set aside, and a new trial granted, otherwise judgment was to be rendered thereon, unless set aside upon a motion filed for that purpose, on the ground that it was against the weight of evidence.
    There was much testimony in the case, but the necessity of reporting it, is superseded by the full and lucid statement in the opinion of the Court, which was delivered by
   Parris J.

—This is assumpsit on a receipt given for a note of hand. — There was evidence tending to prove that the note for which the receipt was'given, was the property of one Taylor; that be had deposited the note with Hatch, from whom the defendant procured possession of it, by giving the receipt in suit. Hatch transferred and assigned the receipt to Taylor, who assigned it to one Conner, for whose benefit the present action is prosecuted. There was also evidence, that while the receipt was in Taylor’s possession, the defendant repeatedly promised to pay him the amount oí the note.

The defendant contended, as matter of law, that this special promise to Taylor was not assignable; but the Judge instructed the jury, that the action might be maintained, for the benefit of Conner, on the receipt, independent of the special promise to Taylor.

The law relative to the assignment of choses in action is well settled. Taylor might have maintained an action on the receipt in the name of Hatch, his assignor, at any time previous to the transfer to Conner, or he might have relied upon the defendant's special promise, and supported an action thereon in his own name. His right on the receipt was not merged by the special promise. When he transferred the receipt to Conner, he assigned all bis rights under it and nothing more, and Conner thereby became entitled to enforce the performance of the defendant's engagements to Hatch, but not to claim any benefit of the special promise to Taylor.

There is in this case a motion at common law for a new trial, because the verdict is against evidence. Under this motion, all the evidence that was exhibited on the trial is reported, from which it appears, that there was evidence tending to prove that the note, described in the receipt, was delivered up to Taylor by one Webb, by the directions of the defendant; and the defendant’s counsel now claim to have the verdict set aside, because the Judge did not instruct the jury that this constituted a good de-fence. If, in charging the jury, the Judge gives erroneous instructions, the party against whom they are given may avail himself of that fact to avoid the verdict. But he cannot avail himself of an omission to charge upon a particular point of law, although raised by the evidence in the case, unless specially requested or moved to give the instructions, by the party in whoso favor they may properly be claimed to be given. The defendant contends that he did request the Judge to instruct the jury upon the law arising from the fact, if they should so find it, that Taylor became possessed of the note, as testified by Webb. If the request was made, it ought to have been complied with. Was it made ? The following was the only request made, viz. “ that the jury might be instructed that Taylor having had the note in his hands and having called on the defendant for payment of the same, and the defendant having expressly promised Taylor to pay the note, an action might be maintained on such promise by Taylor, the assignee, which would take away or merge the cause of the present action. The instruction requested was not that the possession of the note by Taylor, would constihite a good defence, but that the defendant having promised Taylor to pay the note, an action might be maintained, on such promise, by Taylor, which would take away or merge the cause of the present action. We do not understand the law to be as assumed in the request. The note was against Pond for £70, equal to $980, and the promise by Spearin to pay it, if any promise was made by hirn, was verbal. The statute to prevent frauds and perjury, which provides that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt of another, unless the agreement, upon which such action shall be brought, or some note or memorandum thereof shall be in writing, would be an insuperable bar to any recovery against Spearin upon the verbal promise to pay Pond’s note. The instruction requested was, therefore, properly refused.

It is further contended that the Judge erred in the instructions which he gave, viz. that he told the jury the action was maintained. The instruction given, as reported in the case, will not bear this construction. The defendant’s counsel, at the trial, contended that “ the defendant’s promise to Taylor to pay the note could not affect the defendant, as well because it was made without any legal consideration, as because, if made at all, it was made to Taylor, and not to Hatch or Conner ; and that any legal obligation created by said promise was not by law assignable, and would not aid in sustaining this action,” and the Judge was requested to charge to this effect. The jury were instructed, that the action might be maintained on the receipt, independent of the promise, which was not relied upon as the ground of the action, but as an admission that the demand was justly duo ; that in case of a promise to an assignee of an instrument not negotiable, he may maintain an action on that promise, but an action will lie in the name of the assignor upon the instrument. Now we are unable to perceive, in this instruction, any intimation to the jury that the evidence sustained the action, or that the defence was not complete.

The defendant contended, that no action couldjbe maintained on the receipt in the name of Hatch, because there had been a special promise to the assignee. The Court say, not so ; although the assignee may maintain an action in his own name, on the special promise, yet he may, at his election, rely upon the receipt, and maintain an action thereon in the name of Hatch, the assignor. No intimation is given to the jury that the action is supported by the evidence, or that if they should find that Taylor had the note in his possession, as testified by Webb, it would not constitute a-perfect bar to the action. Upon that question, the Judge was not requested to give instructions, and none were given. If the defendant relied upon that point, he should have moved the Court to charge thereon ; — as he did not, it is now too late to take advantage of the omission. It is manifest, however, from the report, that this was not a point relied upon at the trial. We think there was no error in the instructions given, and that the one requested, as to the legal effect of the defendant’s promise to Taylor, was properly withheld.

The next question is, ought this verdict to be set aside on the ground of its being against evidence, or the weight of evidence. There was evidence on both sides, as to the manner in which Spearin became connected with this transaction. The evidence from Taylor is directly contradictory to Webb’s in most of the important points. Taylor was on the stand, as a witness, and testified in presence of the jury ; and it was exclusively their province to determine to which they would give credit. Perhaps there were sufficient reasons why they should rely upon Taylor’s testimony in preference to Webb’s. Webb says, Taylor told him that it was agreed between Taylor and Thompson, when Thompson indorsed the note, that he was not to be responsible to Taylor, and was not to be called on by him. Taylor testifies that he never told Webb so, and it is not improbable that the jury believed Taylor in this, for it does not appear by Thompson’s deposition that he was ever applied to by Taylor, or had any conversation with him relative to indorsing the note. Thompson was applied to by Pond. It does not appear who produced to Thompson the assurance of indemnity on account of his indorsement, which he received from Spearin. Thompson says that Taylor obtained it of Spearin, and that he understood that both he and Spearin were acting for the benefit of Taylor. But he does not say that he understood this from Taylor. If it was from Spear-in that he received the impression, it can have no weight against Taylor in this action. Jones, who acted as Pond’s agent, does not say that Taylor proc.ured the assurance of indemnity from Spearin to Thompson. Jones, as the agent of Pond, went to Thompson for his name. Thompson said he was willing to accommodate Pond, but was unwilling to indorse his note, unless Spearin would indemnify him. Jones says, he wrote the note, Pond signed it, the indemnity passed from Spearin to Thompson, and Thompson indorsed it. But Jones is careful not to say that Taylor requested Spearin to give the assurance, or become in any way answerable to Thompson; but he does say, that be supposed Spearin acted as the mutual friend of Pond and Taylor.

If Taylor had procured the indemnity from Spearin, Jones would have been likely to have known it; and instead of saying that the indemnity passed, from Spearin to Thompson, would have left no room for doubt who procured it. There is not a witness who states directly, of his own knowledge, that Taylor became answerable to Spearin on account of the indemnity by him given to Thompson.

After Thompson was notified as indorser, through Hatch, by Taylor’s request, and Spearin was called upon to make good bis indemnity, he resorts to Hatch, tells him he knows all about the note and the conditions upon which it was given ; that he was the agent of Taylor; and, in consequence of these representations, induced Hatch to give him the note, and thereby secure the erasure of Thompson’s name, as indorser. As Taylor left the note with Hatch, and there is no proof that Spearin had any authority, either as Taylor’s agent or otherwise, to obtain possession of it in the manner he did, it would appear much more consistent with fair dealing if he had refrained from officiously interfering, and instead of causing the note to be mutilated by the erasure of Thompson’s name, thereby depriving it of the only solvent party, and rendering it worthless as security, he had permitted Hatch to have returned it, according to his stipulation, to Taylor, the undisputed owner, from whom he received it. The question of Taylor’s liability to bold the defendant harmless from bis stipulation to Thompson, would then have regularly arisen between these parties. Taylor had a right to have that question presented in this manner. He had a right to call upon Hatch to return the note in the situation in which he took it, according to the terms of the receipt. He was not bound to accept it from Hatch with Thompson’s name erased, and thereby deprived of all its value. There is no evidence in the case that he ever did receive the note, or had it in his possession, after Spearin took it from Hatch, except what arises from Well’s deposition ; and if in the numerous direct contradictions between the testimony of Taylor and Webb, the jury believed the former at the expense of the latter, they might, by applying the maxim falsus in uno, falsus in omnibus, exclude the whole of Webb’s testimony.

Emmons, for t.he plaintiff.

Allen and Boutelle, for the defendant.

From the evidence reported, the jury, probably, considered Spearin, in giving the indemnity to Thompson, as acting for the accommodation of Pond. It was Pond’s debt, and it was due to Taylor. They might have listened to the argument, which has been addressed to us, that as Taylor was the creditor and Pond the debt- or, it would be improbable that the creditor should attempt to increase his security by procuring an indorser for his debtor, and at the same time stipulate for the indorser’s indemnity. They found that, by the receipt in suit, Spearin admitted that the note was held by Taylor and left with Hatch to notify the parties, of whom Thompson was one, and is so named in the receipt; that Spearin expressly engaged, in the receipt, to hold himself accountable for the note and for the amount thereof, or get a discharge from Taylor; thereby recognizing Taylor’s rights; and that, instead of procuring the discharge, his first act was to take from the note the only name which gave it value, thereby shielding himself from his obligation to indemnify Thompson.

We do not say that we should have given the same verdict. We might have weighed the evidence differently, and come to a different conclusion. But we are not satisfied that the verdict is so manifestly against the weight of evidence as to justify, our interference, especially as two juries have concurred in the same opinion.  