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writing, negotiable. But it is insisted that by the law of Massachusetts, the taking of a negotiable note of the debtor is a payment of the account, and that the original debt is therefore satisfied, within the meaning of the statute. By the common law, as administered in England, and as it is believed in all the States except Massachusetts and Maine, the taking of a negotiable note for a pre-existing debt, is not presumed to be payment, but only another promise, held as collateral to the first.

The Massachusetts doctrine is different, and this difference has been created, not by any act of the legislature, but by decisions of the courts. It is very desirable that the law of contracts, so far at least as it affects the substantial rights of parties, should be uniform throughout the commercial world, and especially between the States of our Union, so that a creditor shall not lose his debt in a neighboring State by an act, which, if done in his own, would impair no right.

The Massachusetts decisions, therefore, should be looked at with a disposition to reconcile them with the general commercial doctrine, and so as to create as little difference as a fair construction will admit. Looking at them with this view, I think that the difference may be found to affect the form of the remedy only, and not the substantial rights of the parties. In examining the Massachusetts decisions, we must not regard them as laying down any positive or arbitrary rule, but look carefully at the reasons assigned, and presume that the court did not intend that the doctrine should go farther than the reasons upon which it rests. The earliest reported decisions were pronounced by Chief Justice Parsons, in Thacher V. Dinsmore, 5 Mass. 299, and Maneely v. M'Gee, 6 Ibid. 143, where he says that this had been the course of decisions for many years. And the reason he assigns is this: that if an action be maintainable on the original account, the debtor may subsequently be sued by an indorsee of the note which had been given therefor, and thus the debtor be compelled to pay the debt twice; and therefore the creditor should sue only on the note; that is, that he should have his remedy for the debt only on the second promise. The case and the reason contemplates the mere substitution of the second promise for the first; and that the remedy would be as effectual upon the latter as upon the former.

The court do not contemplate that the creditor is to lose

any right or security; but only that he shall not place his debtor in a situation in which he may be subjected to pay twice. The Courts in England and in other States secure this object by requiring the production of the note to be cancelled when the judgment is rendered on the original promise. Thus the same object is attained by both, though by different modes. But suppose the creditor holds collateral security for the original debt, and afterwards takes a negotiable note; it is clear that by the jurisprudence of England and the other States, the creditor will not thereby lose the benefit of his collateral security, unless such was the intention of the parties; and such intention would not be presumed from the mere fact of taking the negotiable note of the debtor. Is the Massachusetts doctrine different in this respect? I apprehend that it is not, but that the decisions may be fairly reconciled with it. Her Courts say that a negotiable note, given for a pre-existing simple contract debt, is presumed to be payment; but this being only a presumption of fact, may be repelled. They have further decided that it may be overcome merely by circumstances; that is, by any circumstances that repel the presumption that the parties intended the second promise to be a payment of the first. The Courts of Massachusetts adhere as firmly as those of any other State to the doctrine that the intention of the parties is to govern. Now, in determining whether the creditor intended that the original contract should be annulled, the fact that he held collateral security for its performance, is very material, and has so been considered by the Courts of Massachusetts. And I believe they have nowhere said that it is not sufficient, of itself, to rebut the presumption that the creditor intended the negotiable note to be a substitute for the original promise, so as to deprive him of his collateral security.

I have met with three cases in which security was held by the creditor. In Fowler v. Bush, (21 Pick. 230,) a note payable by instalments being secured by mortgage, the negotiable note of the debtor was taken for the first instalment, and payment thereof indorsed on the original note, and the note and mortgage then sold to a third person. Here, if the first instalment had not been paid, the debtor would have been subject to a penalty, as the creditor might at once enter to foreclose. This and the entry of payment on the note, and the sale thereof then contemplated, were sufficient to show that the parties intended the new note should be payment. So in Huse v. Alexander, (2 Met. 157,) where a third person had given his own note as col. lateral security, and subsequently the creditor gave time to the debtor, and took his note with new security, the collateral promissor, who was but a surety, was held to be discharged. But in the case of Butts v. Dean, (2 Met. 76,) a debt was due on account; the creditor took security by the bond of a third person, conditioned, if the debt was paid within eighteen months, the bond should be void ; afterwards the debtor gave to the creditor his own negotiable note for the amount of the account, bearing the same date with the bond, and the creditor gave him a receipt. It was held that it was not to be presumed that the creditor intended to relinquish his security; and therefore the note was not to be deemed payment of the original debt. The remarks of Shaw, C. J., in delivering the opinion of the Court in the case of Melledge v. The Boston Iron Company, (5 Cush. 169, 170,) are, so far as they go, in accordance with the views I have here taken.

It is true that in the case of the Barque Chusan, (2 Story, 467,) Judge Story, treating of a case of Admiralty lien, speaks of the Massachusetts doctrine as differing from that of New York, in a manner which would indicate that he supposed the lien would be lost by taking a note in Massachusetts, when it would not be lost by the same act in New York. But the contract there was made in New York, and he had no occasion to examine the jurisprudence of Massachusetts. I think the Massachusetts doctrine does not go further than to consider the taking of a negotiable note a substitute for the pre-existing debt, where that would not impair any security or other right of the creditor. And to this extent it is unobjectionable, as it causes no inconvenience to the creditor, and may better protect the debtor. If it materially changed the right of the creditor, I think it would be an unfortunate departure from the general rule of law. I am of opinion that the lien in this case was not displaced or impaired by the taking of the notes, and that if the conditions of the statute were complied with, it could, after the expiration of the term of credit, be enforced in the Admiralty by process in rem.

J. A. Andrew, for the plaintiff. P. W. Chandler, for the defendant. NOTE. — In the earliest case decided before the Revolution, and referred to by C. J. Parsons, in 5 Massachusetts, the notes were not produced. In 6 Mass. 146, Parsons, C. J , speaking of the Massachusetts doctrine, says, " there is no inconvenience to the creditor.” It does not extend to cases in which the notes taken are not negotiable. 6 Mass. 358.

Suffolk, ss.

Supreme Judicial Court of Massachusetts.

December, 1856.


If the witnesses in a criminal case are to be excluded from the room, the

rule must be applied to all the witnesses on both sides, except the med

ical witnesses. It is not competent to ask a government witness, not an expert, on cross

examination, whether he has not said that the prisoner was crazy. On the trial of a husband for the murder of his wife, the defence may

show, as bearing upon the question of insanity, strange conduct on the part of the prisoner, occurring at times when bad conduct on the part of

the deceased had been brought to his knowledge. If evidence is introduced for the defence to show that the prisoner was in

sane, the government may, in reply, after the prisoner's evidence is put

in, call medical experts to this point. The burden of proof is upon the government throughout in a capital case ;

but upon the question of sanity or insanity, this burden is met and sustained by the legal presumption of sanity; and if evidence is introduced on this point, the government is not bound to satisfy the jury beyond a reasonable doubt, of ihe prisoner's sanity, but the jury must decide this

question by the preponderance of evidence on the whole case. Chily's medical jurisprudence cannot be read 10 the jury by counsel as

part of the argument.

The defendant was indicted for the murder of his wife, Sarah Jane Eddy, on the 21st of June 1856. Trial before Justices METCALF, Bigelow, and MERRICK, on the 29th of December, 1856.

John H. Clifford, Attorney General, and A. O. Brewster, Assistant Attorney for Suffolk, for the Commonwealth.

George S. Hale, and Thornton K. Lothrop, for the prisoner.

When the witnesses for the prosecution were called, Lothrop moved to exclude from the room those who were to testify in regard to the killing, until they should be respectively called to the stand. The Attorney General assented to the motion, and suggested the practice to be to impound all the witnesses, except the medical ones, on both sides. Per Curiam. All the witnesses on both sides, except the medical witnesses, must be excluded.

One of the grounds of the defence was, that at the time of committing the act the prisoner was insane. On the cross-examination of James Feely, a witness for the government, Hale proposed to ask him if he had not said the defendant was “a raving maniac, and as crazy as a bear.” Per Curiam. The question cannot be put.

Hale offered to show strange conduct of the prisoner occurring at times when the deceased conducted improperly, and the prisoner knew it, and claimed the right to introduce evidence of bad conduct on her part and strangeness on his, occurring together, as tending to show that the act was committed by him in a fit of insanity, brought on by her misconduct, and by its coming to his knowledge.

The Attorney General objected.
Per Curiam. The evidence is admissible.

At the close of the defendant's evidence, the Commonwealth called Dr. Stedman, a medical witness, who had been present during the whole trial, and proposed to examine him as an expert, as to his opinion of the prisoner's sanity, founded upon the evidence in the case.

Hale objected, that as the sanity of the prisoner must be necessarily part of the prima facie case of the government, evidence on this point could not be introduced by way of rebuttal after the defendant's testimony. The government might either rely upon the general presumption of sanity, or introduce evidence to prove the sanity of the prisoner. But if they chose to rely upon the presumption, they could not introduce further evidence after the prisoner's case was closed, and cited Rex v. Stimpson, 2 C. & P. 415.

METCALF, J. - We think the testimony should be admitted; and that this is the first time at which it would be proper for the Commonwealth to offer it. There is no disposition on the part of the Court to deny the general doctrine contended for, that the burden is on the government throughout in a criminal case, to prove everything necessary to constitute the offence charged; but there is a legal presumption, which the law raises in all cases, that a person is of sane mind. That presumption is evidence of the fact, and it stands until rebutted. And when testimony is introduced to rebut it, and the presumption is rebutted and overcome, the jury, upon the whole evidence in the case, must be satisfied by a preponderance of evidence, of the prisoner's insanity.

In the closing arguments, the question of the burden of proof was discussed at considerable length. We can only present a brief and imperfect sketch of the arguments, as well as of the charge of the Court.

Hale, for the prisoner, argued upon this point as follows:

The burden of proof is on the government to show, beyond a reasonable doubt, that the prisoner was of " sound

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