#### Norris vs. Kellogg & Co.

The granting of further time than is allowed, hy statute, to plead* is a táátter üf practice in the discretion of the court, to be allowed or withheld as the circumstances of the case and justice may require, and cannot be controlled by this court, except it has been exercised to the palpable prejudice and injustice of a party:

Held, that where a cause had been submitted to the court, sitting as a jury, and the argument on one side concluded, the court property refused to permit the defendant to file an additional plea, in the absence of any reason for the failure to file it sooner.

At common law, nil debet, to debt on a promissory note, put in issue the execution of the instrument, but under our statute, proof of the execution of the note is dispensed with, in cases where it is not alleged to be lost or destroyed, unless its execution be denied by plea verified by affidavit. The statute, however, dispensé» with nothing but proof of the execution of the instrument, and the onus probandi as to all other matters is stili on the plaintiff.

But when the note is alleged to have been lost, the allegation is a material averment in the cause, is put in issue by the plea of nil debet, and must be proven. Secondary evidence of the contents of the instrument is not admissible until it is made to appear that it existed and has been lost or destroyed.

Writ of Error to the Circuit Court of Pope County,

This was an action of debt brought by Elijah and Clark Kellogg, late merchants and partners under the firm name of Elijah Kellogg & Co., against Sam. Norris, and determined in the Pope circuit court at the Sept, term, 1845, before Brown, judge.

After the usual. commencement in debt, the declaration set out the cause of action thusFor that whereas* on the 1st day of *113October 1832, at Elizabethtown, New Jersey, to wit, &c., the said defendant, by his certain promissory noté, &c¡ &c., the date whereof is the day and year aforesaid, which said note has been lost and cannot be exhibited to the court, promised eighteen months after date to pay to plaintiffs* by their partnership style aforesaid, or order, two hundred and eighty-nine dollars, with interest at the rate of six per cent, after twelve months from date &c.” — Usual breach,

Plaintiffs filed with the declaration, an affidavit made by Edward N. Kellogg, before the deputy Mayor, and one of the presiding judges of the court of common pleas, of the Borough of Elizabeth, New Jersey, and authenticated in the usual form, describing the note declared on, stating what had been paid on it* what was still due, and that it was lost, <fce. &c.

Defendant pleaded nil debet and payment, to the first of which there was issue, to the second replication and issue, all in short upon the record by consent of parties, Upon these issues the cause was submitted to the court* sitting as a jury, and the finding and judgment were for plaintiffs. Defendant moved for a new trial upon the grounds* first, that the court found for plaintiffs without evidence, and* second, that the court refused to permit defendant to file a plea denying the loss of the note declared on. The court overruled the motion, defendant excepted and took a bill of exceptions* from which it appears: •

“ After the issues were submitted to the court, and after defendant’s counsel had concluded his argument, but before plaintiffs’ counsel had concluded and before final judgment* defendant tendered to the court, and asked leave to file an additional plea, traversing the allegation in the declaration of the loss of the note sued on, but the court refused to allow it filed* to which defendant excepted.” It further appears that “on the trial of the cause no evidence was introduced by either party: that the plaintiffs relied upon the admissions made by defendant upon record by the pleadings, and the court decided that under the state of the pleadings plaintiffs were entitled to judgment; that they were not bound to prove the loss of the note* or repel the presumption of payment.”

*114W. Walker, for the plaintiff.

The motion for a new trial was improperly overruled. The 65th sec. of the 116th ch. Rev. Stat. which authorizes the plaintiff, in an action upon a lost note, to allege its loss or destruction as an excuse for not making proferí, declares that such allegation shall be considered a material averment in the cause. The plea of nil debet puts the whole of the plaintiff’s material allegations in issue; Starkie on Evidence, 2 Vot. m. page 369. The pleas of nil debet and payment are not repug» nant or inconsistent, and may be pleaded together. Chittyfs Pleadings, Vol. 1 ,m. p. 595. Mervey v. Say, 3 Pick, Rep. 338. Cults v. The United States, 1 Gall. Rep. 69. It follows, therefore that under the pleas, it devolved upon the defendants to prove the allegation of thp loss of the note.

The bill of exceptions shows that no evidence whatever was adduced on the trial. The affidavit of Edward- Kellogg is no part of the record. We have no statutory provisions in relation to the proof of the allegation of the loss of a note sued upon, and therefore the affidavit of Edward Kellogg, a stranger to the record (and for aught that appears upon the record, a competent witness) could not have been used for any purpose 5 because that allegation, like any other material averment, must be proven in the ordinary way, that the opposite party may have the benefit of a cross examination. The plaintiffs allege that the note was made on the fh’st day of October, 1832, and was payable eighteen months thereafter: the action was instituted on the 24th day of July, 1844, so that ten years had elapsed from the time the right of action accrued thereon at the time of the institution of the suit, and therefore it was necessary for the plaintiffs in the court below to have proven the necessary facts to repel the presumption of payment. See 31 sec. of the 91 ch. Rev. Stat.

The 104th sec. of the 116th ch. Rev. Stat. declares that “ the pleas of nil debet and non assumpsit may be filed in actions of debt •or assumpsit founded on any instrument of writing, not under seal,” but that “ such pleas shall not put in issue the execution of such writing, unless the saíne shall be verified by affidavit.” It will not be contended that this section dispenses with the necessity *115of proving the loss of the note. In Coleman v. Walcott, 4 Bay's Rep. 388, it was held that the allegation of the loss of a specialty, upon which the suit is founded, is a material and traversable one to be determined by the jury- See also Swift v. Stevens, 8 Conn. Rep. 431.

Ringo & Teavnall, contra.

By the record and assignment of errors, two questions only are presented for the consideration and judgment of this court. 1st. Did the court err in refusing to receive the additional or third plea of the plaintiff in error? 2d. Did the court err in refusing the motion of the plaintiff in error for a new trial of this cause ?

As regards the first question the defendants insist that the matter was not of legal right, but addressed to the sound discretion of the court; and therefore this court is not at liberty to reverse the judgment upon this ground: unless it appears from the record that in refusing to receive such plea, at the time it was presented, and in view of all the circumstances of the case then appearing, the court committed a palpable and flagrant abuse of its legitimate powers to the injury of the plaintiff in error. That no such abuse of its legal discretion is shown by the record, but on the contrary the record affirmatively shows that the legal discretion confided to the court, was in this instance well exercised: 1st. Because such plea was calculated to surprize the opposite party. 2d. It must inevitably have produced delay in the trial of the cause. 3d. It was neither calculated or designed to affect the justice of the demand, or of the action of the defendants in error, which the previous pleading admits, and this does not controvert. 4th. It is too late to enlarge or increase the issues after the cause has been submitted to the court or to a jury, during the trial thereof. But 5th. the record no where shows any exception taken to the opinion of the court refusing to receive said plea, at the time of such refusal. This plea is not therefore legitimately parcel of the record of this cause, consequently no question in regard to it can be considered and adjudicated by this court.

In regard to the refusal of the court to grant a new trial on the *116motion of the plaintiff in error, the defendants insist that this also (under the circumstances disclosed by the record) was a motion addressed to the sound legal discretion of the court: in the exercise of which this court cannot interfere unless some flagrant abuse of such discretion is shown by the record, the contrary of which appears in this case. Because, 1st. the plea of nil debet, according to the literal import of its language, only puts in issue the fact of the present indebtedness of the party so pleading at the time of the institution of the suit, which at the common law imposed upon the opposite party the necessity and burthen of proving the execution of the note, when (as in this case) the action was founded upon a promissory note — the proof of which established ■per se the debt, and devolved upon the defendant the burthen of establishing such facts or matter as in law discharged the action. 1 Chitty PI. 516. But under our Statute, Rev. St. Ark. ch. 116 sec. 104, p. 633, the plea of nil debet, as filed in this case not verified by affidavit, does not put in issue the execution of the note, consequently it must admit the debt as proven by the note, and cast upon the party so pleading, the burthen of proving himself discharged from the action, and this appears to have been the opinion of the circuit court. The burthen of the issues joined was therefore manifestly upon the plaintiff in error, who by and upon his whole pleading admits his execution of the note as alleged in the declaration, and rests his defence upon matters in discharge. But who, nevertheless, failed at the trial to produce any testimony whatever, and after judgment was pronounced against him for what the record showed to be due from him to the defendants in error, moved the court to grant him a new trial, because of his own failure to establish by proof any matter in discharge of the action, without showing any excuse or cause of such failure; and ,on the ground of such refusal to grant him a new trial, he invokes this .court to adjudicate this act of the circuit court a flagrant abuse of its legal discretion; and thereupon reverse the judgment .against him and grant him a new trial.

2d. There is no testimony in the cause, nor any reason showp for fhe failure to establish the issues joined by competent proof; copse-*117quently, if the judgment is in favor of the party entitled to it upon the pleadings, there is no ground upon which it can be disturbed. And that it is right upon the pleadings appears to us clear: for they expressly admit the existence of the debt, and there is no proof that it has been discharged.

Oldham, J.

The first question presented in this case is whether the circuit court erred in refusing leave to the defendant below to file an additional plea after the cause had been argued and submitted by the plaintiffs, but before the argument of the defendant. The time of pleading to the merits is proscribed by the Rev. St. ch. 116, sec. 52. In cases where the writ has been served thirty days previous to the return day, every plea to the merits must be filed at or before the calling of the cause in its regular order on the docket, unless further time be given by the court which shall in no case extend beyond the term. The granting of further time to plead is a matter of practice in the discretion of the court, to be allowed or withheld as the circumstances of the case and justice may require, and cannot be controlled by this court except it has been exercised to the palpable prejudice and injustice of the party. In this case leave to file an additional plea was very properly refused. No reason is assigned for the failure to file the plea at an earlier period. A plea filed at the time proposed in this case •would tend to stop the trial already commenced, surprize the .opposite party and prolong the cause to a subsequent term. Such might not be the result in every case, but it would in many. The plea in this case was not necessary, as the allegation which it traverses was already in issue by the pleadings then on file.

The action was brought upon a lost note. The defendant pleaded nil debet and payment, upon which issues were made up, and the parties went to trial: no proof whatever was introduced, and the court found for the plaintiffs.

At common law, under the plea of nil debet, the plaintiff must prove all the material allegations in his declaration. 2 Stark. Ev. 463. Our Statute dispenses with proof of the execution of the instrument or note ip writing in cases where it is not alleged to be *118lost or destroyed, unless its execution be denied by plea verified by affidavit. Rev. St. ch. 116, secs. 102, 104. These two sections of the act must be construed together, and under them, in cases where the note or instrument is not alleged to have been lost or destroyed, it may be read in evidence by the plaintiff in support of the issue on his part without proof of its execution. Under the issue the onus is still upon the plaintiff, Nothing is dispensed with save proof of the execution of the note which is a pre-requisite to its being read to the jury.

But where the note is alleged to have been lost or destroyed, the allegation is a material averment in the cause, (Rev. St. ch. 116, sec. 65,) is put in issue by the plea of nil debet and must be proven. Secondary evidence of the contents of the instrument or note in writing is not admissible until it is made to appear that it existed and has been lost or destroyed. After its existence and subsequent loss or destruction is established, secondary evidence may be received to prove the indebtedness. The note or instrument itself, or secondary evidence of its contents where it is lost or destroyed, must be given in evidence to the jury to entitle the plaintiff to recover. The Statute does not, as the circuit court seemed to suppose, change the rule of evidence and shift the onus from the plaintiff to the defendant. It merely dispenses with the proof of execution where the instrument is not alleged to have been lost or destroyed, but in all other respects leaves the rule as at common law. Reversed,