Opinion
(Spring Riding, 1798.)
When the defendant suffers judgment to go against him by default in an action on a promissory note, he cannot give evidence, on the inquiry, that the note was without consideration, for the purpose of lessening the damages.
THIS was an action upon a promissory note, and there was judgment by default, and the jury being now sworn to assess damages.
Taylor, for the defendant, stated to the court that the facts of this cause were that a race was made between the plaintiff and defendant and the notes of each placed in the hands of a third person to be delivered to the winner; that it was an article of the race, if either of the horses should be disabled so as to be incapable of running on the day appointed for the race, that then the bet should be void and the notes returned to the markers; that the horse of the defendant actually did become disabled on the day of the race, and was adjudged to be so by one of those appointed to determine it, the other being absent; that, (35) notwithstanding, the plaintiff ran his horse over the ground and the stakeholder delivered him the note upon which this action was brought; upon the whole of which statement he said it appeared the note was without consideration and that it was delivered to the plaintiff without the defendant's consent, and so no contract of his, and that in point of law the defendant might be permitted to give this matter in evidence to the jury, who inquire of the damages upon a judgment by default, not for the purpose of overturning the action, but of mitigating and lessening the damages. The jury have this entirely in their power, and ought to hear every kind of evidence that may tend in justice to cause a diminution of the damages; and he moved to be at liberty to give these matters in evidence.
Can you show any authority to justify the admission of such testimony after a judgment by default?
Taylor: I can, and will produce it. The subject of a consideration being necessary or not is treated of very copiously in 1 Fonb., 333; all the authorities are there collected, and a conclusion drawn from them that a consideration is necessary, and that without one an action cannot be supported. The defendant may give in evidence that the consideration is illegal, Bull. N.P., 275; and though there be a judgment by default, the note must be produced and proved on executing the writ of inquiry, Bull, N. P., 278; and it cannot be proved to be a valid note unless it have a good consideration, upon a judgment by default; the plaintiff cannot recover any greater damages than he can prove to the jury sworn to assess them, 2 Burr., 907,908. This was so laid down by Lord Mansfield in an action upon a policy of insurance where the declaration was for a total loss, and the evidence proved a partial one only, where the question was whether the plaintiff, having declared for a total loss, could recover less, or for a partial one; and I cannot perceive any difference in reason between a default on a promissory note and one upon an action an a policy of insurance.
The declaration states a note signed by the defendant for such a sum on such a day, and the fault admits it; in the case of the policy the damages are totally uncertain till the jury have assessed them; in the case of the note the damages to the amount specified in the note are certain, but capable to be increased by taking the interest into consideration if the jury think proper to allow it, or to be lessened by the proof of payments. But the principal objection which lies against the testimony offered is this. When a default takes place and an inquiry is to be executed as to the damages, everything material to the support of the action is admitted by the defendant. The quantum of damages is the only thing in question, and the plaintiff comes prepared as to that point only, he has no notice that any of these (36) facts are to be proven which show that the note is not a good one in law, as that it was without consideration, or upon an illegal one, and therefore he must necessarily be taken by surprise were such evidence suffered to be introduced. If the defendant meant to avail himself of such testimony he should have pleaded the general issue or some other plea which would have given notice to the adverse party that these facts were intended to be proved on the trial. 1 Str., 612; East India Co. v. Glover.
The evidence was rejected and the jury assessed damages to the amount of the note, and the plaintiff had judgment.
Mr. Taylor immediately moved the Court for a new trial, but the Court refused to make a rule to show cause why there should not be a new trial unless he could show a probability that the decision was wrong. Rules are not to be granted unless the Court be first satisfied that justice probably requires them.
NOTE. — See Templeton v. Pearse, post, 339.