delivered the opinion of the Court:
This was an action of assumpsit commenced by Thornton, as assignee of a promissory note, against Harmon & Loomis, as assignors.
The declaration contains ten counts. The third count, after setting out the note and assignment by Harmon & Loomis to Thornton, avers, that when said note became due and payable, the makers were insolvent, and unable to pay said note, or any part thereof, and were, and still are, insolvent, and that the institution of a suit on said note, against the makers, would have been unavailing.
The defendants pleaded non assumpsit to the tenth count, and demurred to the first nine counts. The demurrer was sustained to the fifth, seventh, and ninth counts, and overruled as to the others; whereupon, on motion of the defendants, leave was given to plead to the counts sustained by the Court; and subsequently the defendants pleaded non assumpsit to all the counts in the declaration, except the counts decided by the Court to be insufficient. By agreement of the parties, the cause was tried by the Court, without a jury, and the issue was decided in favor of the plaintiff below.
On the trial of the cause, Thornton offered in evidence a record of the judgment and the execution and return thereon, in the case of Thornton against the makers of the note, to which evidence the defendants below objected, but the objection was overruled, and the record read in evidence.
Parol testimony was also given by both parties, as to the insolvency of the makers of the note at the time when it became due, which testimony is inserted in the bill of exceptions. But whether all the testimony given in the cause is inserted in the bill of exceptions, is not expressly stated.
The errors relied on are, in overruling the demurrer; in receiving in evidence the record in the case of Thornton against Raynor & Dorwin, the makers of the note; in giving judgment for the plaintiff below, on the evidence contained in the bill of exceptions; and that the declaration is insufficient. The defendants, by obtaining leave to plead after the overruling of the demurrer, have waived the demurrer. The overruling the demurrer cannot, therefore, be assigned for error. The record of the proceedings in the case of Thornton against Raynor & Dorwin, was admissible as evidence to show that due diligence, by the institution and prosecution of a suit, had been used by Thornton, to collect the amount of the note of the makers; but whether the diligence shown was sufficient to authorize a recovery, it is not necessary for this Court to decide. In the third count of the declaration, the plaintiff below avers, that when the note became due, the makers were insolvent, and unable to pay said note, or any part thereof, and still are insolvent, and that the institution of a suit would have been unavailing; — and we think the Court was well warranted in so finding the fact, and deciding the issue on that count, in favor of the plaintiff.
The evidence contained in the bill of exceptions, in relation to the insolvency of both of the makers of the note, is perhaps not perfectly conclusive on that point; yet where the Circuit Court is substituted for a jury, on the trial of a cause, it must palpably appear that the Court below misconceived the character of the testimony, before this Court would reverse a decision of the Court below, upon the weight and effect of evidence produced before it.
It was urged on the argument, that it did not appear by the bill of exceptions, that the note was read as evidence on the trial.
It is a sufficient answer to this objection, that the bill of exceptions, which was taken by the defendants below, does not state that all the testimony given by the plaintiff, is contained in the bill. It also appears that the original note was among the papers in the suit, and was consequently before the judge on the trial. If the note was not formally read to the Court below, it was the duty of the defendants to have objected to the sufficiency of the evidence, upon the ground of the non-production of the original note. The law is well settled, that if the objection was not taken or persisted in upon the trial, it cannot be taken here, where the objection is of such a nature that it might have been removed by further evidence. (1) In relation to the last assignment of errors, it is sufficient to say, that the defendants by pleading over, after their demurrer was overruled, have waived all objections to the declaration. The third count, however, is clearly sufficient. It states distinctly that the makers of the note were insolvent when the note became due; and the statute dispenses with the institution of a suit against the makers, where such a suit would be unavailing. Upon the whole, we are of opinion that judgment ought to be affirmed with costs.
Judgment affirmed.
Note. The decision of the various Courts in this country, in relation to the presumptions arising from a bill of exceptions, do not seem to be uniform.
In Virginia, Alabama, and in the Supreme Court of the United States, the rule seems to be that the Court will decide the case upon the bill of exceptions, and will not intend that there was other evidence in the Court below. The following decisions sustain this doctrine:
The Court will decide only on the evidence stated in the bill; and every bill must be considered as presenting a distinct substantive case, which, if defective in any material point, cannot he supplied by any intendment of the Court. Dunlop v. Munroe, 7 Cranch 270.
In Virginia, if a bill of exceptions states a case imperfectly, the cause will be remanded for a new trial. Brooke v. Young, 3 Rand. 106 ; Hairston v. Cole, 1 Rand. 461 ; Thompson v. Cumming, 2 Leigh 322 ; Raines v. Phillips, 1 Leigh 483.
The Court will not presume facts which do not appear on the bill. Johnson v. Ballew, 2 Porter 29.
In Kentucky, Tennessee, and Indiana, a different rule seems to prevail, unless the bill of exceptions shows that it contains all the evidence:
If it does not appear in the bill of exceptions, that all the evidence submitted to the jury is stated therein, the Court of Errors will presume that there was evidence to justify the verdict of the jury. This presumption will not be made if the bill states that it contains all the material evidence. Trott v. West, Meigs 153, 169.
As a general rule, the Court will presume the evidence was sufficient to warrant the verdict, unless the party excepting shows that all the evidence is in the bill. Kingsley v. State Bank, 3 Yerger 107. But there is an exception to the rule, where a point of law is raised on the construction and effect of an instrument, and the Court are satisfied from the facts, that no other evidence was relied on. Ibid.
If exceptions be taken to the denial of a motion for a new trial, on the ground that the verdict was against evidence, the bill must show that all the evidence is contained therein. Lurton v. Carson, 2 Blackf. 464 ; S. P. Reno v. Crane, 2 Blackf. 218.
When the judge of an inferior Court adds to a bill of exceptions, in a writ of error coram vobis, that other objections to the notice, &c. were taken, without stating what they were, the Court of Appeals will presume they were sufficient to justify his judgment. Dorris, &c. v. Calow & Son, 2 Littell 371.
When it appears from the bill of exceptions, that other testimony was given beside that detailed, it will be presumed that the omitted evidence justified the decision of the inferior Court. Cravins v. Grant, 4 Monroe 126.
So if the bill of exceptions does not state the whole evidence. Frazier v. Harvie, 2 Littell 182.
If the bill of exceptions does not purport to contain the whole testimony, the Court of Appeals will not reverse a decision of the Court below, in refusing to grant a new trial on the ground that the verdict was contrary to evidence. Sanders v. Crawley, 2 J. J. Marsh 123 ; Norton, &c. v. Sanders, 1 Dana 14.
But it seems though a bill of exceptions does not purport to give the whole testimony, yet if it clearly shows that illegal or improper testimony was admitted as the foundation of the judgment, it manifests such error as requires revision. Rudd v. Thoms., 1 J. J. Marsh 300.
In relation to the liability of assignors of promissory notes, see Appendix, A.
Jackson v. Davis, 5 Cowen 127 ; Gillham v State Bank of Illinois, Ante 245, 248.