Wilmington daily commercial., 1873-05-27
e0uET RRaeEEBIaas.
Nxw cAsr1z, May Is.

The Court vas opened. this morning, st the
usual hour.
Ths iir.t matter in hand was the charge Of
the Court to the Jury in the case OF Benj. o.
Pearce, d b. :. W Edmund Provost, p. b. 7.
The points Of interest in the charge we're in sub
stance these; In the former action, the plaintiff
was bound 20 recover on tho special contract or
not ct sill IL he recovered the sum OF S2Q0 at
all. be was bound to do so cn the contract.
But this suit Is not on the contract
AZ all. and II Pesrce was ever bound to return
this amount (s1O0l to Provost, it is on the prnci
pie Of the common IlaW-thAt principle of Equity
aud Justice, ON which one Is bound to pay over
the cum which he holds OF anothers-and the
question is. Is not Pearee bound to pay to Pro-
vest the sl00, as the sum he deposited and
whether the Plaintiff is estopped and precluded
IN this action by the Judgment on the demur-
rer on the iirst one-is this indentiesl with the
first We Gle ofOpiHt0a ts Il not
Is he discharged by his having paid over the
stakes Ii is ContSnded that be paid it over
without sufficient notice from Provost. that he
claimed this fund, and not TO pay it TO Given
This is 3 question Of fact for you to consider.
The stake holder ID = trustee for both parties and
lie Is bound to set in good faith to them ali. II
lie had, in good Jdiih and without notice, paid 1t
over. il would have in many cases discharged
him. and the plaintiff cannot recover. but this
say is question Of fact for you. You are to
determine whether the bringing OF the first suit
on Nov. l4th, 1858, before the money was paid
in. (2Ist Dec. '6S), was notice to PeArce that be
bringing suit, (no other sum having been proved
to be in PeArees hand, claimed by hin) was suf-
bcaent notice WAS II . caution to him to act IN
perfect good faith TO both parties did lie do
60 II you are OF opinion that notice was given
IN any way, or that Provost made any claian to
it, We say TO you, that he. having paid it OgeF
under such circumstance. c1kR1t exoBerAts
himself from liability. 1t is proper for yOu to
take into consideration, in this connection, all
the circumstances attending this transaction
from the beginning. the taking of PeArce of
the bond Of indemnity, receipt. &c, Ac that
II he paid it with notice and that notice Was
sufficient one, be did it st his own rlsk.
The Jury retired
Mr.. Bird Asked leave Of the Court for farther
time. "Wednesday next being the last d1y) IN
which to draw out and hle his exceptions III the
case Of o'DAniel Va the Bakers Union prepAra-
tory to taking the case TO the Court Of Enors
and Appeals, which sits next mouth at Dover.
The Court did not hold him to the strict rules
bat said be must not 50 take it As to prejudice
the plaintiff in her right, 50 az to not have the
case on the Appeal Docket.
No. II on Trial list continued.
NJ O. aud 65 veEe referred by consent to W.
5. 4cCSuiley Esq.
No Is judgment for plaintiff, ,smount to To as
certAined by Prothonoiory No stay Of EHeeu-
ton
No 10 continued.
Nos l%O l26, l27 l2s, 129, 1S0 IA. It5. III.
l4s. l42, los, and l6l were continued by con
sent.
NO. llb was referred 10 counsel.
No. l63 was continued on grounds Of absence
Of material witness.
In No. As James Cieaden rs James webb-Gn
GatiOa on the case on promissOry not {. De-
fence usury MIR. Gordon, counsel for PLAIN
tit, saked leave to withdraw his replication and
Gle . demurrer. Granted. Defendants counsel.
Messrs. Higgins L Bird, then asked leave to
withdraw the plea Of usury. Granted. This
brought the case TO the General Issue, under
which they can give evidence OF the whole trans
and hafFt asfr-F
drawn. Plaintiff then proved the note and pro-
test and rested their case. The de-
fence. by Mr.. Bird. then stated the
following as the facts OF their case, which they
would sustain by proof That in July 1871 Lew
Is 4 Son gave to Cleaden q note for $1,000, 0O at
mouths with James Webb az accomm0da-
tlon endorser, and for which they got 5sg2 co.
this note was AfterSAr1 renewed; that IN Oct.1s7t
Lewis Il Son borrowed further sum Of 500
W from Cieaden for one day for which they paid
Cleaden 80 and check; tins was not paid the next
day, nor for some time when, ON March 10th
lS12, they gave Cleaden q note at 80 DAYS for
500 %, also $50 30 total OF said note $3.50 ,33
for the interest &c oa the original 5000 90 note
and also gave James Webb as an iudorser, and
claimed that this $500 80 note, now sued on, was
founded on an usurous consideration, and that
James Webb was only an accommodation indor-
ser, aud never did receive one dollar in the way
OF value. he offered as q witness James Lewis.
one of the trm of Lewis & Son, and one OF the
makers of this note--who before he was sworn
was objected by Nj. Bayard, counsel for
plf., on the grounds:
1. That there was nothing on the face OF this
note to show but that it was fair and legitimate
business note, or an ordinary commercial note
properly drawn by Lewis & Son to James Webb,
the payee, and by him endorsed to James Clea-
den, and by him endored for collection the latter
having been scratched of when suit was brought,
and on the note Itself. but By the endorsement
II blank could have passed from hand to haud
aud that this being the facts ar from the note
gathered, he was not or could not be competent
witness IN tins, that the present suit had been
brought against Webb his surety. that Lewis
could be sued by said surety lin case OF Judgment
against hun and recover the face of the note
aud costs a7 well a. interest and damages which
he (MebD) had sustained in so being compelled
to pay, and in this he interested directly in
the event Of the suit
I'd. That the broad rule laid down by Lord
Mansfield and sustained by the Supreme Court
ot the I ., would exclude him-which, in effect,
general, is, that when a man puts his
name to piece Of paper, aud tells to the world
for value received l promise to pay so much
money without defalcatlon, and as such it goes
INTO circulation, lie shall not be allow
ed to come into Court and stullihy him
self by saying it was not gwen for
value and deny the plain, simple face OF the
note, and the facts there set forth. He cited
mauy cases, both English and American. in sup
| port OF these principles, finishing ms argument
| at about o'clock,
Mr.. Higgins replied, ard distressed Of the first
| objection by saying that Mr. Lewis had been re-
leased from LIABILITY for costs. Il ., aud the Oh
lection was fully met. As to the second ubjec-
/ ton, he said that the current OF authority in
America has been against the rule as laid down
| by the great English Judge, and further, that
ia those states which still adhere to it, they on
| ly apply 1t to those cases OF negotiable paper
where the suit has been brought by an innocent
| holder or indorser for value That IN had
| been thus modihed aud WAS nov
| applied In the States OF Massachusetts and Penn
sslyania as well as some others. He cited many
authorities to sustain this principle and argued
the point at length, continuing until near the
| hour for adjournment,
The Court learning that the Jury in the case Of
Pearce rs Provost had not yet come 10 a conclu-
sion, ordered the clerk to say that should they
agree, during the night they might bring il a
sealed verdict this verdict to govern the other
| case by consent OF couuse) the Court according
ly took recess until tomorrow morning. at 10
O'Clock.