
    * Henry Kingman versus David Pierce.
    The holdei of a promissory note, being about to leave his home, left the note in the care of his son, whom he directed not to receive payment in his absence from the promisor.
    But the promisor coming and insisting upon paying the sum due, although informed of the directions given as aforesaid, the son received the money, and delivered the note to the promisor, which was not then payable. The promisee afterwards maintained trover for the note against the promisor.
    Trover for a promissory note, made by the defendant payable to one Giles Rider, for the sum of twelve dollars, dated Sept. 4th, 1817, and payable in sixty days.
    The action came up from the Common Pleas, where it had been tried; and no appeal lying, it was brought here upon exceptions taken by the plaintiff to the instructions given by that court to the jury, under the provisions of the statute of 1817, c. 185.
    The note was the property of the plaintiff, who, before the 17th of October, 1817, being about to leave home on a journey, instructed his son, if the defendant should come-in his absence, and offer to discharge the note, that he, the son, should not receive the money, nor give up the note. On the day last mentioned, the defendant came to the plaintiff’s house, and wished to pay the note. The son communicated to him his father’s instructions; but being pressed by the defendant, and advised by another person, he reluctantly consented, received the amount due on the note, and delivered the same to the defendant. When the plaintiff returned, he expressed dissatisfaction at the son’s conduct, and refused to take the money which the defendant had paid; and the son afterwards lent a part of it to a third person in presence of his father.
    
      The court below instructed the jury, that it was incumbent on the plaintiff, in order to maintain the action, to show that the defendant obtained the note in an improper manner, not justified by law. If they were not satisfied that the plaintiff’s son had not any express authority to receive payment of the note, and give it up, yet if they were satisfied, from the circumstances in evidence, that the defendant had reason to think, and did think, that the son had such authority, and also that the plaintiff might have received the money, and still had it in his power to receive it, they might find a verdict, for the defendant. If they were satisfied that the son had no such * authority, and that the defendant [ * 248 ] had no sufficient reason to think that he had; and if they were satisfied that the plaintiff might have received, and still might receive the money, they might find a verdict for the plaintiff, with nominal damages. If they were satisfied that the son had no such authority, and that the defendant had not sufficient reason to think that he had, and also that the plaintiff had not had it in his power to receive the money, and could not still receive it, they might find a verdict for the plaintiff, and give in damages the amount due on the note. The jury were further instructed, that if they were satisfied that the money had been, and still was, in the power of the plaintiff, they need not require so strict evidence of authority in the son, or that the defendant had reason to believe he had such authority, in this case as in some others; because the injury complained of was the obtaining possession of the note by paying the money due thereon, the doing of an act, to secure the performance of which was the sole purpose, for which the note was given, and for which purpose only it was of any value to the plaintiff.
   Curia.

We feel ourselves obliged, but reluctantly, to order a new trial in this case. Nothing but a spirit of litigation could have placed the cause in its present situation. The plaintiff might undoubtedly, at any time, have obtained the money from his son, to whom it was paid in his absence. We must, nevertheless, look to his legal rights, without regard to the spirit with which they are enforced.

According to the evidence reported, the note was not due when it was paid to the plaintiff’s son. He was expressly prohibited to receive payment in the absence of his father; and the defendant was informed of this, but, notwithstanding, persisted in his determination to pay, and persuaded the son to violate the orders of his father, in delivering him the note. He came unlawfully to the possession of it; for he had no right to it, until it became due. The promisee was entitled to interest, until the day agreed upon for payment. [ * 249 ] * If the jury could have found that the son had authority, or that the father afterwards assented, the case would have been clear. But the Court of Common Pleas did not limit them to these considerations, but instructed them, among other things, that if the defendant had reason to think that the plaintiff had given authority to his son, they might find for the defendant, whether such authority was proved or not. We cannot think this right. For if there was no authority, the defendant’s having occasion to think there was, unless the plaintiff gave those reasons, would not affect the plaintiff’s right.

The jury were also told, that slighter proof than common would answer to establish the point of authority. But we do not perceive that any thing short of satisfactory proof would answer in this case, more than in any other. If a fact be essential, it must be proved by evidence, and not presumed without evidence, however desirable it might be to establish the fact.

New trial ordered  