Foster v Jolly
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 1263
EXCH. OF PLEAS.
S. C. 5 Tyr. 239; 4 L. J. Ex. 65; and (nomine Forster v. Sibley) 1 Gale, 10. Referred to, Abrey v. Crux, 1869, L. R. 5 C. P. 43.
foster v. jolly. Exch. of Pleas. 1835.-Where a note is made payable fourteen days after date,.parol evidence cannot be given to shew that it was not to be paid, in case a verdict was obtained in an action brought between other parties. -A motion for a new trial in an action brought in the Common Pleas at Lancaster, must be made in the Court in which the Judge sits who presided at the trial. [S. C. 5 Tyr. 239 ; 4 L. J. Ex. G5; and (nomine Fm-.tter v. Sibley) I Gale, 10. Referred to, Abrey v. Cnx, 1869, L. R. 5 C. P. 43.] Assumpsit by the payee against the maker of a promissory note for 121., payable fourteen days after date. Plea, the general issue. At the trial, before Gurney, B., at the last assizes for the county of Lancaster, it appeared that Samuel Milnes, the brother-in-law of the defendant, being agent for a co-operative society, and having ordered goods for the society from a person named Walker, which had not been paid for, the plaintiff, as the attorney of Walker, sued Milnes for tha amount. Milnes then gave the names of certain members of the society, who were also sued for the debt, and a verdict obtained. Milnes also gave a cognovit, and, judgment being entered up, ha was taken on a ca. sa., and while in prison, the defendant g.'ive the note in question for the amount of the demand against Milnes. The defendant now proposed to shew, that the note was given under an agreement that it should not be enforced, in case Walker should obtain u verdict in the action against the members of the co-operative society. On the part of the plaintiff', it was objected that parol evidence of the agreement was inadmissible to vary the terms of the written instrument, and also that the agreement was that the note should not be put in suit, only in case Walker obtained the fruits of bis verdict. The learned Judge, however, admitted the evidence, giving the plaintiff leave to move to enter a verdict for 121., if the Court should be [704] of opinion that the evidence was inadmissible. In the course of last term, Wightman accordingly obtained a rule,( i) and- ; Alexander now shewed cause. The evidence was admissible Though the terms ) of a note be absolute, parol evidence may be given to shew that the holder agreed not to sue a psirty to it. This evidence was...
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