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tion, the spirit of the statute justifies its admission: 3 Atk. 503; 3 Johns. 419 [Bailey v. Ogden, 3 Am. Dec. 509].

But the writings produced on the trial of this action contain no intimation that the contract declared on was made between the present plaintiffs and the defendant. They disclose the name of no person to whom the defendant was liable; of no one who would be entitled to prosecute him for non-performance, or whom he himself could prosecute for a failure to render such deeds as were stipulated in the articles of sale.

Nor is the least reference made to the owners of the property, unless in the expression that the estate is said to be what belonged "to Jonathan Warner, deceased." But this is a mere description of the premises, and not of the then owners, as the only person named is not one of the plaintiffs, and is said to be "deceased." For aught that appears on the paper, therefore, the owners and vendors might as probably have been any other persons as the plaintiffs.

The sale might have been authorized by administrators of Warner, under license, or by his executors, under some direction in a will, or by his devisees, or by some purchasers from one of the above persons. The writings produced, neither explicitly nor by reference, designate which of these supposed persons were parties to the sale. To presume one of them in preference to another, would be to distinguish where no apparent difference exists; and indeed, to presume either, would be rather supplying a total omission than making a selection from what appears on the face of the paper. The signature might, in some cases, remedy the defect in the body of the instrument. But the plaintiffs here did not sign themselves, and the auctioneer affixed his own name merely, without disclosing that of his employer, and without producing, as our statute requires, any authority in writing from the plaintiffs, to show that they were the persons who directed him to sell and to sign.

The written evidence, then, which hath been offered to prove the contract declared on, as it fails to give any intimation that the plaintiffs were one of the parties to that contract, must in itself be considered radically defective and inadmissible: Champion v. Plumer, 4 Bos. & P. 252; 5 Esp. C. 242, Ad. 12; 3 Johns. 399, 420 [Bailey v. Ogden, 3 Am. Dec. 509]; Parkhurst v. Van Cortland, 1 Johns. Ch. 273 [7 Ain. Dec. 427]; 5 East, 10; 3 Taun. 169, obiter; Alcul v. Radcliff, 13 Johns. 300.

Verdict set aside and a new trial granted.

AM. DEC. VOL. VIII-4

REED V. PRENTISS.

[1 NW HAMPSHIRE, 174.]

FAILURE OF CONSIDERATION OF NOTE.-It is no defense to an action on a note, that the article for which it was given proved to be worthless, where there is no fraud, or failure of title, and no express warranty. ASSUMPSIT for a balance due on a note made by the defendant to the plaintiff. Plea, the general issue. At the trial, it appeared that the note in question was given for a quantity of size made and sold by the plaintiff to the defendant. A part of the note was paid when the defendant discovered that the size was of bad quality and of no value. It did not appear that the plaintiff was cognizant of the defect, or that there was any warranty, or that the size had ever been returned. The jury, being instructed that these facts did not constitute a valid defense, returned a verdict for the plaintiff which it was agreed should be set aside if the court, upon further advisement, should be of opinion that this instruction was wrong.

Wilson, for the plaintiff.

J. C. Chamberlain, for the defendant.

By Court, WoODBURY, J. Of the various defenses which are made to actions on promissory notes, a considerable portion are founded on circumstances connected with the consideration of the notes. But the nature and extent of this class of defenses, numerous as it is, are not very critically defined, and, therefore, give occasion to much useless litigation. It would, however, be irrelevant to examine any defenses except such as were introduced on the trial of this action. These involve some principles which deserve attention, and which, on examination, do not appear to conflict with our directions to the jury.

If a fraud had been practiced in relation to the property constituting the consideration of the note sued, that would have been a fact admissible in evidence to defeat the action. Because it is a favorite maxim in law, that fraud destroys every contract which it hath contaminated: Ketletas v. Fleet, 7 Johns, 324; Jones v. Scriven, 8 Id. 453; 13 Id. 302; Brown v. Davis, 7 East, 480, note. But no attempt was made to prove fraud, and an offense of such an odious nature is not to be presumed. The weight of authority as to warranty, also, appears to incline in favor of its being a good defense to an action on a note, when the article constituting the consideration for the note was stipulated to be of a certain quality, and, on proving to be otherwise,

hath, when practicable, been returned to the vendor: Curtis v. Hannay, 3 Esp. Cas. 82; Grimaldi v. White, 4 Id. 95; 7 East, 481, note; 2 Chit. Pl. 100, note; 1 Esp. Cas. 639, note; 7 Johns, 331; Kimball v. Cunningham, 4 Mass. 502 [3 Am. Dec. 230]. The principle seems to be, that as the article received is not the kind of article agreed for, the expected consideration for the note never passed. A breach of warranty also subjects the vendor to pay all that is lost by the breach; and suffering the vendee to avail himself of this breach in answer to a suit for the consideration, prevents circuity of action, and produces no difference in the estimation of the damage. If surprised by the defense, the plaintiff would be entitled to a continuance, for the purpose of preparing to encounter it. But a warranty, though implied as to the title, does never, unless by express contract, exist as to the quality: Parkinson v. Lee, 2 East, 314; Defreeze v. Trumper, 1 Johns. 274 [3 Am. Dec. 329]; Harmas v. Vernoy, 6 Johns. 5; Emerson v. Brigham, 10 Mass. 197 [6 Am. Dec. 109]. In the present case, however, no evidence was offered to prove an express warranty in relation to the quality of the size, and the implied one as to the title was unbroken. We entertain no doubt, also, that it would have been a good defense to this action, had the property, which was the consideration of the note, never passed to the vendee. This might have happened by a defect of title, or by a non-delivery of the article, through the fault of the vendee. Such circumstances would show an original want, and not a subsequent failure, of consideration. No part of what was stipulated would have been delivered; and, consequently, that on which the promise was to rest would not exist: 2 Johns. 658; 3 Id. 465; 11 Id. 547, 550; 12 Id. 363; 5 Bos. & P. 136; 2 Esp. Cas. 639.

On the same principle, if only a portion of the specific chattels, money, or other subject-matter of the consideration passes, the note is invalid [valid ?] pro tanto, and void as to the residue: 6 East, 110; Peak. N. P. C. 61, 216; 7 Johns. 383. But in the present case the whole article contracted for, accompanied by a valid title, went into the possession of the vendee. The only remaining ground, then, for avoiding the note is, that its consideration has failed in consequence of the size proving to be a bad quality. But it is very correctly settled, that this circumstance would furnish no foundation for a distinct action against the vendor, either for the money paid, or on a supposed implied warranty, or for the articles given in exchange: Parkinson . Lee, 2 East, 314; Emerson v. Brigham, 10 Mass. 197 [6 Am.

Dec. 109]; Snell v. Moses, 1 Johns. 96; Id. 128, 274. Independent of this agreement against the defense, we can discover no equity in its support. The defendant deliberately gives his note and receives the article stipulated for; and should its quality prove bad, without any fraud or warranty by the vendor, the vendor is innocent; and it is no more reasonable that the misfortune should fall upon him than upon the vendee. Without deceit or a special contract, the seller is not responsible for the goodness of articles sold; and the maxim of caveat emptor applies in full force. When the specific chattels thus purchased are delivered to the buyer, all is passed which the parties engage; and it would be a solecism to pronounce that the note for them was given without consideration, when the whole subject-matter of the consideration was delivered in conformity to the contract. The following cases, adjudging that the mere failure of consideration is no defense to an action of this description, seem conclusive for the plaintiff: Pollard v. Lyman, 1 Day, 167 [2 Am. Dec. 163]; Dorland v. Lumnis, 2 Johns. 179, note; Holman v. Dakin, 4 Id. 421; 5 Id. 354, 404. Consequently judgment must be entered on the verdict.

MERRILL V. SHERBURNE.

[1 NEW HAMPSHIRE, 199.]

ACT GRANTING NEW TRIAL-CONSTITUTIONALITY OF.-An act of the legis lature awarding a new trial in an action which has been decided in a court of law is an exercise of judicial power, and operates retrospectively; it is, therefore, void.

THE opinion states the case.

Mason, for the plaintiff.

J. Smith, for the defendants.

By Court, WOODBURY, J. This case was an appeal from a decree of the court of probate in this county, approving an instrument which purported to be the last will of Nathaniel Ward.

It appeared from the copies of the proceedings, and the admissions of the parties, that on the sixth day of June, A. D. 1806, Ward died; that in the instrument before mentioned, all his property was devised to Benjamin Merrill, the plaintiff's intestate; that on the twenty-third day of the same month, Merrill obtained a decree of the court of probate, approving and allowing in common form said instrument as the last will of

Ward; that Merrill thereupon took and retained quiet possession of said property till December 28, 1812, when the defendants, being heirs at law of Ward, petitioned the court of probate to reconsider, in solemn form, the decree before mentioned, and to disallow said instrument; that on the fourth of February, 1813, said court did reconsider and affirm the former decree; that the defendants claimed an appeal therefrom to the superior court, in which, the appeal having been entered, all the issues joined between the parties were, at November term, 1813, found against said Merrill; that he then made a motion for a new trial, which, after a full hearing, was refused; and at November term, 1814, final judgment was rendered that the decree of the court of probate be reversed, and said instrument disallowed. Merrill then petitioned the legislature for another trial, and they, at their June session, A. D. 1817, passed an act granting to the plaintiff as administratrix of Merrill, at that time deceased, liberty to re-enter said cause in the superior court, and there have it retried like common cases of review. Pursuant to that act the plaintiff served a copy of it on the defendants, which required them to appear in this court at September term, 1817, and proceed to a new trial of the cause. The names of the parties were at that term entered on the docket, and the defendants appearing moved the court to quash the proceedings, on the ground that the act of the legislature was unconstitutional. The cause was continued for argument on that motion, and is now to be decided.

It involves a question of no small magnitude; for the motion contains a charge that encroachments have been made upon constitutional rights; and though in form the measures of a branch of the government towards a few individuals only are arraigned, yet in substance these measures affect the interest of all, as the rule of construction adopted to-day may become a precedent to-morrow, and be adduced to vindicate or oppose similar conduct towards every member of society. The alarm thus excited induces most people to listen to such charges with great readiness; and it would not be unnatural for courts in examining those charges, sometimes to fancy the existence of what is only feared.

Perhaps, also, it is inseparable from the structure of the legislative and judicial departments, that jealousies should arise between them as to the exercise of their respective powers; for they were intended in some degree to be mutual checks: Millar on Ranks, 287; Federalist, Nos. 47, 78; and though thus situ

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