Neale vs. Newland, 4 Ark. 506

By the Court, Dickinson, J. There are several questions attempted to be raised by the assignment of errors, but the whole case is reduced within a narrow compass. The doctrine is now too well established to need further illustration, that, after a party pleads in chief, he cannot again resort to his demurrer. The case, therefore, stands upon the count alone for money paid, laid out, and expended. The only point to be decided, turns upon the correctness of these instructions.

It is objected, that the giving of a negotiable note of hand for a prior debt, is not equivalent to payment so as to warrant a recovery upon the money count. This point has been differently ruled, but the law upon it may now be considered settled. The objection cannot prevail. The doctrine was laid down in Cornwall vs. Gold, 4 Pick. R. 44, and the cases áre all there cited and analysed; and the Court settled, that the giving of a new note was equivalent to the payment of the first, and would support an action upon the money count.

The principle upon which the case proceeds is, that the execution of the second note is equivalent to an actual payment of so much money paid, laid out, and expended, for his benefit. Thesame principle was settled in Withby vs. Mann, 11 J. R. 518, and in Douglass vs. Moody and another, 9 Mass. R. 553. The whole of them rest upon the case of Barclay and another vs. Good, 2 Esp. 571.

The rule is in accordance with justice and reason; for, if a party’s note has been paid up and canceled, there can certainly be no good reason shown why it is not, in every respect, equivalent to so much money paid; and should there be any hardship in the rule, it must be remembered that it was in the power of the defendant to have shown how much was actually paid; and, having failed to do so, it is to be presumed it was paid to the full extent. The court, therefore, properly overruled the first instruction, and rightly gave the last.

Whether the finding of the jury was warranted by the evidence or not, we have no right to consider, as there was no motion for a new trial. Judgment affirmed.