The United States Bank v. James W. Southard. W. Thompson, Esq. further testified: In March, 1837, upon receiving this note for collection, I called on the defendant and showed it to him; he admitted the execution of the note and the indorsement to be genuine. I told him I was directed to call on him for payment of it, he said he would pay it as soon as he could raise the money, that he had no dependence on his brother Dan to pay it; that he had been informed by his uncle, that the note lay over unpaid, and he had expected it to be sent on for collection before this time. I told him, he must come and sign his appearance to a writ, and he did so. He asked me to inquire for the indorser subsequent to him, whose name was indorsed in blank, and is so still. I did not understand from him that payment had been duly demanded of the maker, or that the defendant had received any notice of non-payment, except from his uncle. The Court said. If the defendant had not received due notice of non payment, he must have been cognizant of that at the time. he made the promise. Whether the promise was a waiver of evidence to show a demand on the maker of the note, or equivalent to proof of it under the circumstances detailed, was a question of law, that might be settled at bar. The Court therefore recommended that a verdict be taken for the amount of the note and interest to the 2d Tuesday in May next, in order to save the cause from the expense of being brought again to the Circuit, and that the defendant have leave at bar, to move that the verdict be set aside and a nonsuit entered. The jury found for the plaintiff, $300 damages, and six cents costs. On the return of the postea, a rule to show cause was entered ; and at the term of February, 1840, the same was argued. James S. Green for plaintiffs. A promise to pay, admits the existence of every thing necessary to render him liable, and cited 2 Camp. 188; + Camp. 52; 6 Moore, 319; 16 John. R. 154; 17 Com. Law; 319. A mere promise to pay, made after notice of facts and laches. of holder, though the party making it, misapprehended the lav, is sufficient to bind the drawer or indorser. 12 East, 39. There is a distinction between the ignorance of facts, and of the law. The first excuses, the last does not. 2 East, 471. Van Dyke v. Admrs. of C. Van Dyke. The defendant in this case, knew that payment had not been made by the maker, and that he had not received notice of nonpayment, and this distinguishes this case from the case of Barkalow v. Johnson et al., 1 Harr. 400, where the defendant was ignorant of the facts of the case. S. R. Hamilton contra-relied on the case of Barkalow v. Johnson et al., 1 Harr. 400. In error. VANDYKE v. ADMRS. OF C. VAN DYKE. On a plea of the statute of limitations, to an action on a money bond, issue being joined upon the replication, actio accrevit infra sexdecim annosevidence of payments, is inadmissible for the purpose of taking the case out of the statute. This court will not award a venire de novo, where it is manifest that it will not benefit the applicant. This cause came before the court in May Term, 1836, on a writ of error to the Common Pleas of Somerset county, and the judgment below which had been rendered against the plaintiff in error, was reversed by the unanimous opinion of this court. 3 Green's R. 289. Since then, Van Dyke the plaintiff in error has commenced a suit against the administrators, to recover back the money paid by him, or raised by execution on the original judgment, out of his property, in satisfaction of that judgment. Mr. Vroom, now moves for a venire de novo, on the ground that the judgment in error was not final and conclusive and did not settle the rights of the parties in relation to the matter in controversy; and he insists that this motion ought now to be granted, though more than three years has elapsed since the judgment of reversal; because if put to a new action, the statute of limitations will be a bar. The reason assigned for not making Van Dyke v. Admrs. of C. Van Dyke. an earlier application, is that having received the debt and costs from the defendant, the plaintiffs could not again carry the cause down for trial: but the defendant having now brought an action to recover back that money, the administrators can only protect themselves by a new trial in the original action. J. S. Green for plaintiff, objects to this, First, Because it is too late. This case was determined in the term of May, 1836, and since then a suit has been commenced by the defendant below, to recover back the money. The judgment of this court is a general judgment of reversal, and on the faith of such a judgment, the defendant brought his suit to recover back the money received by the plaintiff below. Second, Because this is a case in which the court would not have ordered a venire de novo, even if applied for at the May Term, 1836. On page 298 of 3d Green, the Chief Justice says, "My opinion therefore is, that the court erred in admitting the plaintiff to prove payment in any way, under the issue joined in this case," Should a new trial take place, (the effect of granting a venire de novo,) the case of the plaintiff could not be bettered. The proof of payment, if attainable, would be inadmissible under the present pleadings: And yet without such proof, the plaintiff cannot overcome the statute of limitations. The suit is brought on a bond dated May 1st, 1797; outlawed on its face; and the plaintiffs have filed no replication presenting any fact to relieve themselves from the operation of the statute. Why then put the defendant to the expense of preparing for a second trial, when such trial can do the plaintiff no good. The judgment of this court was virtually a judgment for the defendant below. For if the merits be against the plaintiffs, the defendant shall have a new judgment. For this court is to reform as well as affirm or reverse. 1 Harr. 409. Third, The Supreme Court should have ordered a judgment for the defendant. From the whole case it appeared, that the merits are with the defendant below, and plaintiff in error. This court in the case of Garr v. Stokes, 1 Harr. 407; has laid down the correct rule. If the justice of the case, to the plaintiff in error, requires a venire de novo, the court will grant it, or give Robert Thompson v. The Morris Canal and Banking Company. such new judgment in favor of the plaintiff in error, as the court below should have given. The decision of the Court was pronounced by, HORNBLOWER, C. J. Laying out of the question, all objection on the score of time; and admitting that it is not a case, in which the judgment of this court was final between the parties, yet upon the principles on which my opinion in favor of a reversal, was founded, it would be a vain and nugatory thing to award a venire de novo in this case, upon the pleadings as they now stand. Since this motion has been made, I have carefully reviewed that opinion, as it is reported in 3 Green's R. 289; and I have done so with the more care, because the rest of the court, although they did not dissent from my views of the case, put their opinions, (and with which I fully concurred) on the simple position, that the endorsements were permitted to be read as evidence of payments made on the bond, without any other proof of such payments having been made, or any evidence showing when, where or by whom those indorsements had been entered on the bond. The result of that review has only served to confirm me in the view I then took of the case, that payments could not be given in evidence under the pleadings in the cause, for the purpose of taking the case out of the statute of limitations. In my opinion therefore, this motion must be denied with costs. Motion denied with costs. ROBERT THOMPSON v. THE MORRIS CANAL AND BANKING COMPANY On rule to show cause against a new trial. Damages for injuries to real estate, ought to bear a fair and just proportion to the loss occasioned by them. Trespass to land, being of a visible, tangible Robert Thompson v. The Morris Canal and Banking Company. nature, admits of measurement and appraisal so nearly certain, that if a verdict be for a sum very disproportionate to the visible injury done without circumstances of ill will or malice, it will commonly be set aside for excessiveness. The title to lands does not pass by a verdict for the plaintiff, in action of trespass; it remains in the plaintiff, and therefore a verdict for damages, to the full value of the land, is manifestly wrong. The opinion of the Court, was delivered by FORD, J. In an action of trespass against the Morris Canal and Banking Company, for breaking and entering the close of Robert Thompson the plaintiff, cutting and carrying away his timber, digging up and subverting his soil, and other injuries. therein; the company was found guilty at the Circuit, and damages assessed against them to the amount of $11,291. On a motion to set aside the verdict, for excessiveness of damages, and other reasons presented by the defendants, the case appeared to be as follows: That the Company were authorized, by an act of the legislature, to make a map and return of such lands as they, under oath, should deem necessary for the purpose of a Canal; that if they could not agree with the owners thereof touching the value of their land and their damages, that the same should be appraised by three freeholders to be appointed by one of the justices of this court; that on payment or tender of the sum so assessed, to any owner, the title to such land should become vested in the company. That a survey and map duly returned, took about eight acres and a half of a farm containing one hundred and sixty-five acres, belonging to the plaintiff; that no agreement could be effected with him touching the value of the said land and his damages, and that they were appraised by three freeholders, appointed as the act directs, at $2,422; and no exception having been taken by Certiorari or otherwise to those proceedings, that they remained of record, in full force and unreversed. It further appeared that the said value and damages, amounting to $2,422, had been duly tendered by the company to the plaintiff, whereby the money became as much his own as if it was in his purse; and the title of the eight and a half acres became vested in the company as fully for the purposes of the canal, as if the company had received a deed for the same from the plaintiff under his hand and VOL. II. 2 H |