EASTMAN V. POTTER.

[4 VERMONT, 313.]

INDORSEE SHOULD have the NoTE PRESENT at the time and place of demand, in order to charge the indorser for non-payment. Principal enforced where the note was payable in grain.

ACTION by the indorsee against the indorser on a note made payable in grain. At the time of the presentment to the maker, the plaintiff did not have the note with him, although he was asked by the defendant to produce it. The defendant denied at that time having indorsed the note. The plaintiff urged that this denial was a waiver of the necessity of producing the note. The court charged otherwise. Verdict for the defendant.

Thrall, for the plaintiff.

Ormsbee, contra, relied on Aldis v. Johnson, 1 Vt. 136; Sanderson v. Barnes, 14 East, 500; Dickinson v. Barnes, 16 Id. 110; Freeman v. Boynton, 7 Mass. 486.

By Court, BAYLIES, J. In the case of Aldis & Gadcomb v. Johnson, 1 Vt. 136, it was decided that the indorsee of a note not negotiable must follow the rules of the law merchant in making demand of payment and giving notice of non-payment in reasonable time. Then let us apply these rules to the note in question, which was payable in grain in January, 1830; at the defendant's dwelling-house. The note was executed by Peleg Eddy to Abraham Potter, and by Potter indorsed to the plaintiff. The plaintiff appeared at the time and place the note was payable, ready to receive the grain, but had not the note with him to show his authority to receive the grain, nor to deliver up, in case payment had been made. The question is, was this neglect of the plaintiff to have the note present at the time and place of payment a discharge of the defendant, who is sued as indorser by the indorsee? In the case of the U. S. Bank v. Smith, 11 Wheat. 171, the court say: plaintiffs, to entitle them to recover, were bound to show that they were the indorsees and holders of the note; that the note was at the bank, where it was made payable at the time it fell due; that the maker had no funds there to pay the note; and that due notice of the default of the maker was given to the defendant." From this decision I infer that the neglect of the plaintiff to have his note present at the time and place of payment, was a discharge of the defendant from his liability. In support of this opinion there are the following additional

AM. DEO. VOL. XXIV-39

authorities: Ambrose v. Hopwood, 2 Taunt. 61; Callaghan v. Ayleti, 3 Id. 397; Bowes et al. v. Howe, in error, 5 Id. 30; Bank v. Jones, 6 Mass. 524; Freeman et al. v. Boynton, 7 Id. 483; Woodbridge et al v. Brigham et al., 13 Id. 557.

The judgment of the county court is affirmed with additional

costs.

DIXON V. SINCLAIR.

¡4 VERMONT, 354.]

A JUDGMENT RENDERED "that the plaintiff from having and maintaining his suit ought to be barred, and the defendant recover his costs," may be pleaded in bar to a future action for the same cause.

THE DEFENDANT MAY PLEAD IN BAR A FORMER JUDGMENT in his favor in an action of debt on a judgment, taken by consent for the plaintiff, subject to the award of arbitrators upon other matters between them.

DEBT. The opinion states the case.

Bailey and Marsh, for the plaintiff.

Adams, contra.

By Court, PHELPS, J. This case comes before us on demurrer and upon a state of pleadings somewhat complicated, especially as the replication contains a recital of the pleadings in a former action between these parties. As the demurrer was intended to draw in question the effect of all the proceedings in the former suit as well as in this, it may conduce to a more correct understanding of the questions raised by the pleadings to arrange the case in the order of time in which the various questions arose.

The plaintiff, it appears, recovered a judgment against the defendant at the March term of Chittenden county court, A. D. 1826, for the sum in all of one hundred and eighty-one dollars and fifty-eight cents. But it further appears that this judgment was entered by mutual consent, and subject to the award of arbitrators, upon certain claims pleaded in off-set by the defendant. The arbitrators failed to make any award in the matter, and without any such award the plaintiff, at the March term of said court, A. D. 1828, brought his action of debt on said judgment. The defendant defended the action, and pleaded in substance that the judgment was rendered upon the condition above stated, and that he was ready and willing to proceed with the arbitration, but that the plaintiff refused to proceed with it. The plaintiff replied, admitting the agree

ment, but denying that the defendant was ready or willing to proceed with the arbitration, and alleged that he refused to do so, although requested. Upon this, issue was joined, and found for the defendant, and judgment was rendered accordingly.

Subsequently to this, viz., at the March term of said court, A. D. 1830, this suit was brought by the plaintiff, being a second action of debt upon the same judgment. The defendant now pleads in bar the judgment in the former action; and the plaintiff, in avoidance of that plea, replies, setting forth the pleadings in that suit as showing the grounds on which that decision was had, and avers an offer on his part to the defendant to submit the subject of the set-off to the arbitrators named and a refusal on the part of the defendant so to do. To this replication the defendant demurs, and upon these pleadings the question arises as to the sufficiency of the plea in the first place; and secondly, as to the sufficiency of the replication.

The objection to the plea, in the present instance, is that it does not, on the face of it, show a judgment which is to be regarded as a judgment on the merits of the claim, and of course, a bar to the present action. The plea states the bringing of the previous suit by the plaintiff for the same cause of action, and that "such proceedings were had; that said court rendered judgment; that the said Luther from having and maintaining his suit ought to be barred, and that the said Joseph recover his costs."

It is contended that a judgment in these terms is not a bar to a future proceeding for the same cause of action—that the term "bar" or "barred" is not a technical word, except as a generic term designating a certain kind of pleas-that it is not adopted in the precedents of pleading, nor is it the appropriate language of a record. It is admitted, however, that this is the usual form in our courts of entering a judgment for the defendant upon a plea in bar. If this admission be correct, it becomes a very serious inquiry whether it be or be not a proper mode of entering judgment in such case, and whether through the unskillfulness or inaccuracy of the ministers of justice, the proceedings of our courts of justice, for a period which may, and probably does, extend to the very organization of those courts, are to be regarded as having lost their appropriate, decisive, and conclusive character. Very strong reasons certainly are required to justify a decision, which proceeding upon technical or formal grounds merely, would serve to break

the seals, which, through immense labor and expense, have been placed upon a formidable mass of litigation.

In designating the appropriate language for a record of judicial proceedings, we know of no better rule than that it should be expressed in clear, intelligible, and definite language. These qualities may be derived from the common acceptation of words in common parlance, or from a precise technical import affixed to them as terms of art. The term "bar," or barred," whether we consider it as a mere technical term or not, has, when used in its legal sense, a meaning not only comprehensive and definite, but one which with professional men, as well as elsewhere, is distinctly apprehended. It implies an insuperable obstacle-an answer to a claim, satisfactory and conclusive. The use of the term bar, as designating pleas to the merits of the action, renders it peculiarly proper as expressing the decision of a court, had upon the merits, and intended as a final determination of the controversy. Its introduction, under these circumstances, gives a meaning to the language of a decision which it might not otherwise have. It is used with reference to its settled technical import, and as excluding the supposition of any evasion of the merits of the controversy.

It is said that the established form of such a judgment, as given in the books of precedents, is: "That the plaintiff take nothing by his bill." This is, indeed, the usual form in many courts. But this phraseology, aside of any artificial import attached to it, in consequence of its use in this particular, is not inconsistent with the supposition of an abatement, nonsuit, or demurrer. It does not, ex vi termini, negative either; whereas, the term barred, taken in its settled and well-known signification, negatives all. If, therefore, a distinction be taken between the two modes of expression, the one adopted in our courts is the most significant and the least equivocal.

It is further remarkable that the ingenious counsel, who disapproved its use, being unable to discover in it any improper or equivocal import, are driven to condemn it as unmeaning and insensible, and this for no better reason than that some elementary writers have substituted for it phraseology less explicit and unequivocal.

It is further objected that the plea does not show that the parties were by the judgment put out of court. If we are right in supposing that the plea sets forth a judgment on the merits, there is no ground for this objection. The plea further states that judgment was also that defendant recover his costs.

This part of the judgment negatives the supposition that there were other issues to be disposed of. A judgment that the plaintiff is barred, and that defendant recover his costs, seems to dispose of the case, and the parties are necessarily out of court. We are therefore of opinion that the defendant's plea is sufficient.

The next subject of inquiry is the sufficiency of the replication. This professes to set forth the pleadings in the former case, with the view of showing that the defense there urged was not a permanent bar, but of a temporary nature; and proceeds to aver a readiness, on the part of the plaintiff, to proceed with the arbitration as a reason why the defense relied upon on the former occasion is no longer available.

It may be remarked here that it is the effect of the former judgment, and not its correctness, which we are called upon to consider. Whether an agreement, like that set forth in the plea to that action, relating to matters not necessarily involved in the plaintiff's action, contemplating an indorsement on the judgment and not a modification of it by the act of the court, and not entered of record, but resting in pais between the parties, is to be considered as affecting the absolute character of the original judgment, is a question then acted upon and which is not now open for discussion. But the question now is whether the defense then relied ou is to be considered as temporary in its character, and whether the replication shows any thing to have occurred since to remove that defense. That there may be a temporary bar seems to follow from the doctrine laid down in some of the books, that some defenses which are temporary in their character, as that the plaintiff is an alien enemy, may be pleaded in bar. Why a plea, which goes merely to the temporary disability of the plaintiff, should have been regarded as a proper plea in bar, is not easy to be explained. It is sufficient that it is so; and the necessary inference is, that the defense can be made no longer than the disability exists. Where such a defense is relied on, it is most obvious that the defense must appear to exist at the time it is pleaded. The onus probandi is undoubtedly on the defendant to show its continuance, but if judgment is rendered for the defendant, and the plaintiff brings a new action for the same cause, it is evi. dent that the judgment changes the burden of proof, and the plaintiff must rebut the effect of the judgment, by showing the bar to have been removed.

Admitting the defense to this claim to have been a tem