source: Caselaw Access Project

author: By Mr. Justice Thornton :

license: Public Domain

text:
    Samuel H. Garrow vs. Carpenter & Hanrick, Adm’rs. of B. H. Hall.

      Error from ike Circuit Court of Mobile County — Before the Hon. P. T. Harris.
    A parol agreement, made contemporaneously with a written one, although the former should depend uppn the latter, and relate t,o the same subject, may nevertheless be established by parol proof, and maintained, if it can be so separated from the written contract, as that it will not appear to have been intended to form a constituent part of it, and if it does not go to alter, contradict, or explain snch written contract.
    The answer of a defendant in chancery, formally denying that which ho is not alleged to know', and which, from his situation, he could not know with any certainty,.is not so conclusive as to require more than one witness, on the pqrt of the complainant, to establish what is thus denied. ■

      A defendant is not bound to plead that which is strictly a set off; but may if he choose, resort to his own action.
    The revival of a suit against administrators, which had been commenced against the intestate, and the prosecution of the same, until it is abated by the production of an order of court, on the part of the defendant, showing the insolvency of the estate, is sufficient to take the demand out of the statute of non-claim.
    B. H. Hall, on the 1st of March, 1821, entered into a written agreement with Banieron and Williams, whereby they were to build him certain stores in the city of Mobile. Samuel H. Garrow (the complainant in error) became their security for the performance of the work by a certain time. — ■ When but a small portion of the work was performed, Dam-eron and Williams failed in business ; and Garrow, the security, finished the work ; but not by the time it was to have been finished. Hall brought suit against Garrow on the ar~ tides of agreement, for the failure of bis principals and him¿¡selfio complete the stores in due time. The suit, by an or-derof reference, came before arbitrators, who awarded to Hall one thousand "and seven dollars damages, and their award was made the judgment of the court. Garrow, who had ob-* mined an assignment of the articles, sued Hail for the money which he, Hall, was to pay for the building of the stores. In the progress'of this suit Hall died ; and the action was revived against Carpenter and Ilanrick, bis administrators, who arc now defendants in error. The judgment against Garrow was also revived; and both the suit and judgment were referred to arbitrators ; but before they had reported, the administrators produced an order of the County Court declaring ths estate of their intestate insolvent. Upon this, the suit against the administrators abated, the judgment against Garrow remaining in full force. G-arrow then fled his bill to enjoin the judgment. In this bill he charges that, at the time he became security for Bameron and Williams, and before he would sign the same, it was agreed between the parties that, in case the said S Bameron and Williams should bo unable to build and finish said atoros, according to the agreement, Garrow should be allowed to complete the same ; and -said Hall should pay him the sum he was to pay Dame-ron and Williams for the work, namely, three thousand eight hundred and fifty dollars, after deducting therefrom such damages as Hall might, have sustained by any delay in the time of finishing the work. The hill charges, that Hall refused'.to pay him for the work according to the agreement, alleging that Damcrpn and Williams .were indebted to him, Hall, at the time of entering into the articles of agreement, to a much larger amount than the work came to. The bill also alleges, that the complainant endeavored to bring his claim before the arbitrators who made the award against him, but they refused to consider it, and said, that their only business was to assess the damages which Hall had sustained in the delay of completing the buildings. On the filing of this bill, the judg* ment, at law, against Garrow, was enjoined.
    The answer of Carpenter and Hanriek, administrators of Hall, denies the parol agreement; relies on the indebtedness of Dameron and Williams (under the name of J. Williams & Co.) at the time of making the contract; and alleges that Garrow knew of that indebtedness. The answer also insists I on the conclusiveness of the award ; and relies on the statute of non-claim. The parol agreement is established by one witness. It is not deemed necessary to notice the rest of the proof in this place. By a decree of the court belovy, the injunction was dissolved, and the complainant’s bill dismissed. To obtain a reversal of this decree, the cause ha» been brought into this court.
    Garrow, for Plaintiff in error.
    The defendants in their answer to the complainant’s bill, deny the verbal agreement set up by the complainant: but this is not to have the force usually allowed to the denial of •an answer in chancery, because they are administrators, and are therefore pot presumed to be conusant of the facts stated in the bill — 9 Cranck, 160. The sameprinciple has been recognised in this court. But whatever weight is given to the answer, the verbal agreement is established by two witnesses.
    The ground taken in the decree is, that a parol contract cannot be set up at variance with a written instrument. The general principle is admitted. But this is not a verbal agreement modifying the contract: it is a distinct collateral agreement, and not within the rule. The parol agreement here does not vary the one in writing. Dameron and Williams are bound by the written agreement to complete the buildings within a cer( ain time, and Garrow is bound with them as security. But the parol agreement is made in consideration ©f the possibility of a failure on the. part of Dameron and Williams to complete the work. In that event Garrow was to be permitted to complete the work, and to receive the pay . for it. This is neither contradicting nor varying the meaning of the instrument; and that such a parol agreement may be established by proof, its being made at the same time with the written one, being no objection, see Chilly on Contracts, 26 — 3 Starhie, 1007, 1043, 1047 — 12 East, 578 — 1 Peters', 89 — 1 Peer Williams, 113 — 14 Johns. 210. . Garrow, in regard to this parol agreement, stands in the situation of any other man. The parties indeed, are not the same. The written contract is between Hall of the one part, and Dame-ron and Williams and Garrow of the other part; and the parol contract is between Hall and Garrow. The parol agree? rnent could not have been incorporated into the written one, without making it a very awkward instrument.
    Independent of the parol agreement, Garrow is entitled to pay for his services. He went on with the work by the consent of Hall. Will it be said that in this, he was only doing as he was bound to do by the written contract ? Not so. Dameron and Williams had failed. For this failure Garrow would have been liable', yet not to the extent of the value of the building, but only to the amount of damages sustained by Hall from the disappointment. Suppose Hall to have made as advantageous a contract with another; in that case, the damages would be only nominal.
    But it is contended that Dameron and Williams were in debt to Hall, and that Hall had a right to pay for the building in these debts. This would have been a fraud on the security, Garrow; if such had been the understanding, it ought to have been set out in the written agreement. The contract says that Hall shall pay, and not that he shall accept the work in payment of debts due from Dameron and Williams to him. There is no sufficient evidence of these debts ; and if there were, there is no evidence that Garrow knew of their existence ; but the contrary is proved by Garrow, as far as a negative can be established by proof.

      The suit against Dameron and Williams was settled by arbitration ; but it was proved that the arbitrators refused to take any other matter into consideration but the damages which Hall had sustained by not having the building completed in time. This was in fact, the subject which was brought properly before them by the written agreement. But we have a right to show that they did not take into consideration in that trial, that equitable set off which we now claim — See 9 Mass. R. 320 — 5 Mass. R. 334 — ’7—’8—Caldwell on Ar„ bitration, 119, 126,129, 136, 149, 211, 212.
    Courts of equity are careful in case of sureties not to extend a contract, so as to operate against them, beyond its express terms — 9 Wheaton, 703.
    That part of the answer which is not responsive 'to the bill, by a well known principle, is not evidence ; nor can it avail any thing without being proved.
    The complainant also cited 1 Term, R. 691, and 1 Espi-nassie's N. P. 185.
    Goldthwaite, contra.

    The queetion is, Was the parol agreement here attempted to be set up, a distinct contract, or a modification of the contract which was committed to writing ? I contend that it appears from the language of the bill, that Garrow himself considers it a modification of the written agreement; and that its being a distinct collateral agreement is an after-thought. The complainant charges, that before he wonld sign the contract, it was understood between the parties, that if Dame- ' ron and Williams should fail to do the work, that Garrow should have the liberty of doing it, and that he should receive the pay. Was there any mutuality in such an agreement as this ? While it extends a privilege to Garrow, it is clear that Hall could have no remedy but on the written agreement : and this being so, is it not obvious it varies the agreement and makes it less favorable to Hall.

      But I contend that, no matter what was the understanding before signing the agreement, every thing was merged in the writing — l Johns. Ch. R. 273.
    If this was an independant contract, it is singular that it is not so set out in the bill. When Garrow sues Hall why does he not resort to the verbal contract ? No : Not regarding it as an independant contract, he takes an assignment on the writing. Does the verbal agrenment amount to any thing independent of the writing ? Suppose Hall had wished to set aside the contract with Dameron and Williams, and resort to the verbal contract, could he have had any claim upon Garrow ? Certainly not. Then the total want of mutuality in this agreement, if we take it separately, proves that it could have been only a modification of the agreement in writing. It cannot therefore, be established by parol. — 8 Whew-ion, 174. A written instrument cannot be varied by conversation anterior to the signing of it. Parol proof cannot be permitted to alter or explain it. — 11 Johns. 201 — 3 Johns. 68. The principle is well established. It does not depend on the statute of frauds. It is a principle as old as the law itself, that where there is a writing, that shall be the contract. The casé in 12 Johnson, 488, has a striking application to the one before us. There it is laid down, that where a contract in writing provides that payment is to be made to one person, it cannot be explained by parol proof, so as to make the money payable to another.
    This bill is deficient in equity. It presents a singular se-curityship, in the case of Garrow, by which the contract of Hall is made worse than if it had been made with Dameron and Williams without any security. If Dameron and W il-liams had performed the work which was done by Garrow, they could not have recovered payment from Hall until their own debts were paid ; but here, by Garrow’s securityship, Hall is required to make double payment. The damages recovered of Dameron and Williams, by Hall, for their failure to complete the buildings according to contract, would, if there were no security, be a joint fund out of which all the creditors of the estate of Hall would be entitled to their respective proportions; but Garrow in virtue of his being rity, claims it all to satisfy his own demand. This is a strange surety, who by fixing his name to the instrument renders the contract worse, in respect to the man for whose benefit it is taken.
    But if Garrow has any just claim which the laws will recognize under the parol agreement, had he not a right to have it allowed him in the other suit between the parties ? and if the arbitrators had refused to allow it, could he not have applied to the court, and had the award set aside for that reason ? If a party omits or declines to make a full defence before arbitrators, he cannot afterwards come into a court of equity to make out his case. — 4 Johns. R. 510. Had not Garrow a complete defence at law ? According to the complainant’s own showing, the amount he is entitled to under the parol agreement is a sum wholly unascertained ; it ought therefore to have been fixed by a court of law.
    And if this parol contract be a distinct and independent one as it is represented, .was not Garrow' boimd to present it to the administrators of Hall, within the eighteen months allowed by law; and not having done so, is it not [barred by the statute of non-claim. It may be said that suit was brought; but it appears1 that the suit was brought on the articles of agreement: this was no presentation of the agreement on which the complainant now relies. A claim for unliquida-ted damages must be reduced to writing, and presented within the proper time, or it will be barred. — 2 Stewart, 455.
    The case cited from 12 East, has no application to the case before the court. A new'verbal contract may waive or release a stipulation in writing: this is altogether different from modifying the meaning and changing the character of a written contract by a verbal one made at the same time.
    As to the damages sustained by Hall, being only nominal* on account of the failure of Dameron and Williams to perform their contract; that might have been the case, if the contract had been rescinded immediately after it was made, and Hall had been able to make an equally advantageous contract with another; but the contract could only be rescinded by mutual consent. Hall had a right to hold on to his contract until the expiration of the time in which it was to be complied with.
    If, however, the court should not sustain me in the positions I have taken, they will at least lay this equitable restriction upon the claim of the complainant: they will only permit him to recover a ratable proportion of his debt out of the estate of Hall. They will not, because he was the security of Dame--ron and Williams in a contract to Hall, which they failed to perferm, permit him to recover his full debt out of the estate of Hall, while other creditors-can only have their ratable proportion.
    Stewart, in reply.
    I ask the court to keep in mind that Harrow was a-security — a character, favored in a court of equity. — 9 Wheaton, 703. We insist that Hall was to fay for the erection of these buildings; while it is contended on the other hand, that he > was to pay nothing — that he was only to give credit to Dame-ron and Williams on various debts which they owed him. — ■ The "writing says he shall pay; and it must be construed strictly in favor of the security. Hall says that Dameron and ..' Williams owed him, and that this was the main inducement with him for entering into the contract. If so, why was .it not so stated in the writing ? Had this been done, Garrow would not have gone security. If this were the object,.and that object kept out of view in the writing, it was a fraud upon Gar-row. The payment is to be made to Dameron and Williams or assigns. This word ‘ assigns,’ is at war with the con- . struction of payment by discount. There is no proof establishing the fact that Garrow knew the indebtedness of Dame? ron and Williams to Hall; and Garrow denies having any SUeh knowledge.
    As to the parol contract: it is not strictly between the same parties with the written one. it is a contract besween Hall and Garrow, which is to operate conditionally, and not absolutely. By the written contract Garrow would be bound, on the failure of his principal, only to answer in damages : but by the parol agreement Garrow is to do the specific thing, to erect the buildings. This is a consideration from Garrow to Hall. Where a collateral contract is not inconsistent with the written instrument, it may be proved by parol. The principle applies to this case. The full force of the written contract is allowed. The arbitrators have assessed the damages for the breach of that contract; and we are willing to pay them, but v/e also claim our rights under the other contract. The question here is not what the written contract is ; if it were so, parol proof could be allowed to settle it; but a collateral agreement made previous to the signing of a written one, affecting the rights of the parties, but not inconsistent with the written agreement, is good. — 14 Vesey, 519.— And such is this case. See also, Cox's Ch. Cases, 404.
    If there had been no such contract, Hall would still have been bound to pay Garrow, because f he work was performed with his assent. If our claim be taken As a defence against Hall’s judgment for damages, the defence is good in equity.
    In regard to the objection taken to testimony, such objection cannot be made here, unless made in the court below : this is an appellate court. »
    A strange argument has been used on the part of the plaintiff in error, going to show that, according to our view of the contract, Garrow being security, places Hall in a worse sin tuation than if he had not been security. The counsel forgets that if Garrow had not been security, the houses would not have been builded. When that fact is recollected, the argument is answered,

      But it is said that the award is conclusive and final. Ad-it, mit it. But it is only conclusive as far as it goes. It is not — conclusive on a matter not submitted or taken into consideration by the arbitrators. We do not dispute the award ; we only say it does not embrace the claim now in litigation.'
    Is Garrow to be placed in a worse situation than if he had done nothing ? If the houses had never been budded by Dameron and Williams or Garrow, and Hall had employed another, the damages would have been nominal, or to the amount of the difference in the two contracts : Garrow would not have been bound to pay the debts of Dameron and Williams. as it is now contended he must do. Besides, if Hall had intended to hold us responsible for the debts of J. Williams & Co. or Dameron and Williams., he should have assigned us the notes, or used due diligence by suit to collect them. He has not done so ; and it is now too late to make any thing from those debts : he is, therefore, guilty of laches, and cannot remunerate himself by proceeding against Gar-row, who was security.
    In regard to the statute of non-claim, as these were mutual, subsisting debts, our claim did not need to be presented. It would, without such presentation, stand as a set off against Hall’s judpment against us. And if it were a claim that ought to have been presented, more fully than it was, still, a claim not asserted within eighteen months is only lost as to assets that have come to the hands of the executor or administrator. In equity, it may still be set up as to assets in fu-turo.

    For the rule of law, that a security is not to answer for the liability of his principal farther than that liability is disclosed* see 1 Payne, 306.
   By Mr. Justice Thornton :

This cause is brought up by writ of error, to a decree of a chancellor dissolving an injunction and dismissing a bill, filed by the plaintiff in error against the defendants, who were ad-Ininistrators of one Benjamin H. Hall. It appears that a written contract was executed between the said Hall, in his < life time, and the firm of Dameron and Williams, undertak - ers and builders in the city of Mobile,- and the plaintiff as their security ; by which contract it was stipulated, that the said Dameron and Williams should erect certain store houses in the said city for the said Hall, to be completed by the first of November, 1821, for which the said Hall obliged himself to pay to the said Dameron and Williams the sum of three thousand eight hundred and fifty dollars, on or before the said first of November, 1821, provided the said houses should then be ready for delivery; and provided further, that if not finished by the said time, the payment of said sum of money should be suspended until they were completed; and the said Hall should be compensated by, the said Dameron and Williams, or their said security, the plaintiif, such reasonable damages as the said Hall might sustain by reason of the non- ' completion of said buildings, according to the-contract. Upon this contract Hall instituted an action at law against the’ plaintiif, and recovered as damages accruing to him for the non-completion of the houses, the sum of one thousand and seven dollars, to enjoin which the bill of the plaintiff was filed.

The bill charges, that before the signing by him of the contract above mentioned, it' was understood and agreed between the said Hall and the said Dameron and Williams and the said plaintiif, that in case the said Dameron and Williams should be unable to build and finish said stores, according to the agreement, that then, and in that case, he should complete and finish said stores himself, and the said Hall should pay unto him the said sum of three thousand eight hundred and jifty dollars, after deducting therefrom such damages as the said Hall might sustain, in case the said build* , ings should not be completed by the said first of November, 1821. The bill further,charges, that the said Dameron and Williams failing to complete the said buildings, assigned the* Written contract to the complainant, who proceeded at his owtr í costs and charges to complete the same, and delivered them - up to the defendants’ intestate in April, 1822. That the said Hall refusing to pay him the sum agreed- to be paid as aforesaid, he commenced an action at common law against him, upon the written agreement and upon the verbal contract, to which said action, after the death of Hall, the defendants were made parties.; and that during its pendency, viz : at the September term, 1828, the case was referred to arbitrators, and continued on reference from term to term, until at last it was abated upon the declaration of the insolvency of the estate' of their intestate by the said defendants. The answer of the defendants denies the fact of any such verbal contract made with their intestate. They allege that Dameron and Williams were greatly embarrassed, if not wholly insolvent, when the contract was made with them by their intestate, and that they were largely indebted to him, which was the main inducement to make the said contract, in order' to save this debt. They admit that the plaintiff procured an assignment of the written contract from Dameron and Williams, and also, that suit was commenced on the same, which was terminated in the manner as stated in the complainant’s bill. They assert that letters of administration were committed to them on the thirteenth of September, 1824, and that the claim of the plaintiff was never duly presented ; and insist as a defence, on the statute of non-claim. The proof takSn is only the depositions of three witnesses, all of which were read on the trial in the court below, without any objection being made, either to the mode of taking them, or to the competency of the witnesses, and of course the case will now be considered on the testimony in the record, There is abundance of testimony that Dameron and Williams, after putting up. the frames of the buildings, failed in their circumstances, and surrendered the work with the written contract to Gar-row, who completed it'as above stated. That the value of the work done by Dameron and Williams, before they abandoned it, was something like eight hundred dollars, being two hundred dollars less than the damages recovered from Gar-row as their security, by the intestate. There is one positive witness who sustains the allegation, respecting the parol agreement, which is relied on by the complainant. There are some other facts proved in the cause, which have been dwelt upon in the argument, but which to my mind, furnish very little ground for presumption, either on, one side or the other — such as the insolvency of Dameron and Williams, and the indebtedness to the intestate Hall. They might have furnished a motive to him, for entering into the written contract'; so, on the other hand, those very circumstances, if known to Gar row, might have been powerful .reasons with him, why he would not have incurred such a hazardous responsibility as his becoming security imposed, without at the same time, the counter indemnity, which the agreement he relies upon, afforded. So, Hall’s declarations that he was ready to pay whenever the buildings were done, and that it was immaterial to him to whom he paid ; though they were Well calculated to inspire the complainant with ardour in the prosecution of the work, may have been artfully intended for that purpose only ; and however deceptive, furnish no very strong corroboration of the statements in the bill.

Having thus stated the substance of the bill, answer, and proofs, so far as I consider necessary to a decision of the case, I will proceed to examine the questions belonging to it.

The first which presents itself is, whether the contract set up by the complainant, even if proved, can be regarded, on account of its supposed effect, to vary or contradict'the written instrument, which was signed by the parties to it. The general rule is well established, that a written contract cannot be varied, contradicted, or even explained by'parol evidence. But if any contemporaneous contract be made, even in some sense on the same subject matter, which can be so separated from the written one, as that it will not appear to have been intended to form a constituent part of it, and does not alter, contradict, or explain it, however it may depend upon it for its very existence, I can see no good reason, why such parol contract should not be upheld. Their mere juxtaposition, is surely no fatal objection. Let us then examine these two contracts, and see if that set up by this bill must be annihilated by the force of the admitted rule, in the written contract Hall obligated himself to pay to Dameron and Williams, a certain sum of money, for certain work to be done by them, against a certain day ; and requires the plaintiff to be security for any damages which he may sustain by a delay in the completion of the. work beyond that day ; he suspending payment until its completion. Now, before Garrow, the com-’ plainant, would become a party as such security to the proposed contract, thus written, he exacts of the parties, what he might well have deemed essential to his safety, the parol agreement, viz : that Dameron an'd Williams should allow him, in case of their failure, to comply with the proposed written contract, to proceed and execute it; and receive the compensation which was to be paid to them ; and that Hall should promise to pay him in the event of his doing the work, the money which by the writing he had bound himself to pay to the said Dameron and Williams? Dissect this parol contract, and view it in the light in which the testimony presents it, and it is nothing more than a contract of future assignment made'by Dameron and Williams to the complainant, in consideration of his incurring the liability of surety for them, which however, would have béen wholly illusory, unless .assented to by Hall. Now, Hall or his representatives should not be permitted to defeat this counter indemnity. The rule of law thus applied, would, as it strikes my mind, make a victim of the innocent security. To sustain an agreement in parol, to assign this contract, by Dameron and Willialns, made before its execution by the signature of' the parties, which agreement had been induced and occasioned by the assent and. concurrence of Hall, would, it seems to me, be hq more a violation of the rale, than to sustain "such a one made • . after its execution. Yet it is conceded, that if any man m-duce another to take any security upon him, by a promise of payment, he cannot avoid it, even if it be forgery, much less can he defeat an honest assignment for a meritorious consideration, which he has encouraged and occasioned for his own benefit. I do not think the contract here relied upon, ‘

The next question to be considered is, whether the proof sufficiently establishes this parol contract. I have already said that there is but one positive witness to sustain it; and I have said also, that no great stress can be laid upon the circumstantial evidence adduced. The general rule which has been invoked upon this occasion, that there must be two positive witnesses, or one, and strong corroborating circumstances, I'do not think applies to this case. The rule is not inexorable, but yields to such reasonable considerations as show the impropriety of its application. It is founded on the equitable principle, that evidence should be weighed, and the preponderance given not to number merely, but to the greatest weight of the testimony. The answer of a defendant, who is made a competent witness by the complainant, is equal to another competent witness ; and without more, the cause is in equilibrio, and the maxim applies, melior est conditio de-fendentis. It will therefore require another, or what is equivalent thereto, a powerful array of coadjuvant circumstances to turn the balance. Suppose, however, that from the situation which a defendant in chancery has occupied in relation to the matter in controversy, he is not only not alleged to know, but evidently can know nothing certainly of the matter, which he. nevertheless formally denies. Is it not reasonable that the answer of such a one, should be less weighty in the balances of justice, than the positive asseverations of a disin terested witness ? I conceive so on principle, and believe the ’ authorities will sustain the position. The case of an executor or administrator defendant, is considered as an exception to the general rule, in 9 Cranch 160, and 4 Bibb, 358. Upon another view, proper to this case, I feel also satisfied that the , rule is inapplicable. The bill is also sworn to, here, as well as the answer; it is oath against oath; and in such case, one witness is sufficient. I consider the parol contractas proved.

The question of jurisdiction was raised in argument, and deserves to be considered. I understood the objection to be founded upon the supposition that there was an ample opportunity for the complainant to have obtained the benefit of his demand as now sought, by pleading a set off to the action brought against him by the defendant’s intestate, Hall; judgment on which he now seeks to render fruitless by' his bill. It has been often decided that a party is not compellable to plead what is strictly a set oft’ and not a payment, in’, any case. It is optional with him to do so r not. In this case a separate action was resorted to by the complainant, which the defendants admit was abated at their instance, owing to the insolvency of their intestate’s estate. The only remedy which remained to the complainant was before the commissioners appointed to allow the demands against the insolvent estate: but this remedy was clearly inadequate. Immediately on the declaration of insolvency, it became essential to the interest of the complainant, that he should be allowed to setoff against the judgment against him, an equal amount of the debt due'from the intestate to him. This court has decided in the case of Penine, and Warren1 s adm’rs., July term, 1830, that in such case a set off is allowable. Then the jurisdiction is entertained properly, as it is the only way of affording the relief to. which the party is evidently entitled. The only adequate remedy is by injunction to the extent of the complainant’s demand, and further relief we do not think it competent to supply; as to the balance of his demand he is remitted to such remedy as the law may afford him. The relief to the extent just intimated is clearly allowable, unless the plea of the statute of non-claim, or forfeiture for failing So present it to the administrators* within eighteen months after lettersgranted, whicS) is pleaded in this case, can be maintained. Let us see how this matter of the plea stands as pre-seated to us by the bill, answer and proofs. It is averred the bill, as if in anticipation of the bar, that an action was brought to inforce this very demand against the intestate in bis life time; that after his death the defendants were made parties thereto, and that after a consent order of reference to arbitrators, and continuances for several terms for their report, it was finally abated by the defendant’s producing a certified copy of an order of the Montgomery County Court, declaring the estate of the said intestate to be insolvent_ The answer admits the institution of the suit, and that it was terminated as stated in the bill; but alleges that the claim was not duly presented, and insists on the statute of non-claim. Now, if the answer does not virtually amount to an admission of the course of said cause as averred in the bill; that is, that the defendants were made parties, and consented to the reference, &c.. which I am inclined to think it was intended to do ; yet I consider such to be the effect of the answer by force of the principle of equity that facts which are charged in the bill, and are evidently in the knowledge of the defendant, and not denied, are to be taken as admitted. So far then, as the plea questions the sufficiency of these facts, to constitute a presentment of the claim, I would not consume a moment upon it, but that a decision of this court is brought to our view, which is contended tobe conclusive in support of it. The case referred to, is reported in 2 Stew. 447. The only view of that case which can reconcile it to my mind, is that a non-suit was taken on the writ served upon the party defendant, from which it might be inferred that the claim was abandoned ; for it is said in the opinion delivered that a copy of the bond or note, or an abstract will suffice ; and if a copy of the writ is not a compliance with the statute, at least the declaration will supply it. Not to overrule that case, I feel bound to limit it at all events to this principle — that a writ served on an executor or administrator on which a non-suit is taken, before a declaration is filed, will not constitute notice within the statute ; and I think this is ■ doing great homage to the maxim, stare decisis. There is then an averment in the bill, which taken in connection with the admissions in the answer, amounts to what constitutes a due presentation of the demand, so far as its manner is concerned : and if the plea is understood to question its validity for want of its being made within the time required by the act, then there is no evidence in the cause by which it is made to appear, that the forfeiture had been incurred by the lapse of eighteen months, prior to such presentment or notice. The letters of administration are not produced, nor the time of their issuance established by any proof in the| case. Now, whose duty was it to prove this fact ? If it be a fact necessary only to maintain the plea, by the rules of pleading applicable to the case, I think it is thrown upon the defendant. In general, a party claiming a forfeiture, is bound to make out his case precisely; nor is it a necessary exception that it involves the proof of a negative allegation.

From the best consideration which we have been able to give the cause, our conclusion is, that the decree below is erroneous, and should thereforé be reversed — that a decree be entered restoring and perpetuating the injunction, and that complainant recover his costs, &c.

      3 Bibb, 466, 539, 143.

      Gallis. 498.


author: Ey Mr. Chief Justice Saffodd :

text:
    Dennis Commons vs. Frederick S. Walters.

      Error from Perry Circuit Court¡

    Although it is not sufficient, in an action of slander, that the words proved he tantamount to the words charged, it is sufficient that they be substantially the same.
    The words, “ are you not afraid as you have perjured yourself?” arc held to be substantially the same with these : “ you are perjured?” And these words are clearly actionable in themselves, with or without a colloquium.

    If it be alleged, iu a count in the declaration, that a particular affidavit was made, or a particular trial had before a justice of the peace, as a substantial part of the count, then the same must be proved by competent testimony, to sustain the count; but if the count merely charge that the defendant said of the plaintiff, il he swore alie,” in reference to a certain affidavit made before a justice of the peace, for the purpose of having the defendant bound to the peace ; the words are actionable, and if they, with the reference to such affidavit, bo proved, the count will be thereby sustained, without further proof of the proceedings before the justice of the peace.
    The plaintiff below, who is also the plaintiff’ in error, brought an action of slander against the defendant. The declaration contained several counts. Some of them set forth a certain proceeding before one Lowe, a justice of the peace, in which the plaintiff had made an affidavit, to bind the defendant to keep the peace ; and charged the defendant with having said, in reference to the oath that the plaintiff took, in making the affidavit, that the plaintiff swore a lie. One ' count charged the defendant with having said to the plaintiff,. “ you arc perjured,.” It appears by the bill of exceptions, that the plaintiff offered to introduce secondary evidence of the proceedings before the magistrate, Lowe. A witness was introduced, a deputy-clerk, who said he had seen such "papers in the clerk’s office, and that they had been handed to the solicitor. The court refused to permit secondary evidence to be given of the contents of the papers ; to which refusal the plaintiff excepted. The plaintiff introduced a witness who proved that he heard the defendant say to the plaintiff, “Are you not afraid, as you have perjured yourself?” On cross examination, the witness stated, that he heard this at Lowe’s on the day that Commons bound Walters to keep the peace. Another witness was introduced, who said that he was in a situation to hear all that was said on the same occasion, and all that he heard the defendant charge the plaintiff with was in reference to the proceedings before Lowe. On this statement the court instructed the j ury that this evidence must be excluded; that to make any evidence good, setting forth statements made in allusion to the proceedings before Lowe, those proceedings must be produced. The plaintiff excepted to this opinion of the court, and he now contends that, in giving these opinions, the court erred.
    Pickens, for Plaintiff'in error.
    The court below erred, in refusing to permit secondary evidence to be given of the proceedings before the justice of the peace ; and in requiring that the papers themselves should be produced. Now the principle is well settled, that secondary evidence may be given of the contents - of lost papers, where a bona fide search has been made for them, and they have not been found. — 1 Starkie’s Evidence, 349. These papers were to have been sent to the Circuit Court; whether we have reference to the statute on the subject, or to the cus- ' tom of the country : and it was proved that these papers had been there ; and that they were not then to be found there. The secondary evidence, therefore, ought to have been admitted.

      The other point arises from the charge of the Judge, that where words, actionable in themselves, were proved to be spoken, in reference to a proceeding before a justice of the peace, proof of the words is not admissible, without the production of the proceedings before the justice of the peace.— Now, to show that this was error, see Starhie on Slander, 281, and 12 Mass, R. 498.
    In the case before the court, as respects these actionable words, ‘ that the party was perjured,’ we make no allusion to any particular case before a justice of'the peace. As the words were actionable in themselves, implying in themselves false swearing, respecting a material point, in a judicial proceeding, they needed not to be referred to any particular trial. We prove these actionable words upon the‘plaintiff: the very words which we charge him to have ,used. But the defendant, below, introduces proof going to show that these words referred to a certain tidal before a justice of the peace, by the name of Lowe ; and the court decides that these proceedings must be produced In/ us, or our proof is not admissible ! Such a decision as this is an unheard of departure from legal rules.
    Peck, contra.

    To authorise secondary evidence of the contents of papers of any kind, the existence of those papers must be shown by proof. Now, it does not sufficiently appear that these papers, said to have been lost, ever in fact existed. Besides, 1 do, not admit, and it has not been shown, that these papers were such as the justice was bound to return to the Circuit Court. Search should therefore have been made in the justice’s office. But there is an attempt here to prove that these papers had been in the circuit court, and had been handed over to the solicitor. If this had been established, then the party proved too much for his purpose, unless he had proved still more.. Search should have1 been made in the solicitor’s office ; but no such search is shown.

      As to the second point, it does not appear by the bill of exceptions that the testimony excluded for want of the intro- ' duction of the papers before the justice, .xas testimony given under the counts which contained actionable words. The words proved were, “ Áre you not afraid, as you have perjured yourself ?” These words could not apply to the counts stating words actionable in themselves, on account of the variance. The declaration charges words like these : “ You are perjured.” The words proved would not sustain such a charge: the variance would be fatal; — •Stqrlcie on Slander, 275.
    Ellis, on the same side.
    Whatever may be the-opinion of the court as to the law requiring a recognizance, (taken before a justice of the peace, upon an examination for breach of the peace,) to be sent up to the Circuit- Court by the justice, there can be no doubt, it seems to me, that the warrant and the affidavit — and these are the papers material in the slander cause — are not required to be sent up to the Circuit Court. The office of the Circuit Court was, therefore, not the proper place to search for them. ' Proper search had not been made for them in the office of the justice of the peace. The court, therefore, did not err in refusing tq perafit secondary evidence to be given of their contents.
    In regard to the second point, the counsel seems to me to' make a '"charge for the Judge, which the bill of exceptions does not show to have been given. The first effort was made by the plaintiff below to establish these proceedings before the justice of the peace. In that lie failed. He then wishes to prove statements made by the defendant, in reference to these proceedings ; and the court, very properly as I think, instruct the jury, that this cannot be allowed; that words spoken in reference to these proceedings must be excluded unless the proceedings themselves should be produced, their absence not being properly accounted for. There seems therefore to be no error in the instructions given by the court.

      Pickens, in reply.
    It is not the recognizance alone which should be sent up to the Circuit Court, after such an examination before a justice of the peace as is here referred to. The basis of the proceeding, the affidavit and warrant, should go with them.
    But it is said that we should have gone to the solicitor’s office. Where is that ? — may it please the court. The solicitor may not live in the county; or if he should, is his office a recognised, legal place of deposite for judicial papers ?— Certainly not.
    As to what has been said in reference to the other point in the cause : If our evidence was applicable to any count in the declaration, the Judge was wrong to exclude it without a sufficient reason. No such reason was shown. In the three last counts we had introduced no colloquium in regard to any proceedings before a magistrate. No such colloquium was necessary, because the words were actionable in themselves.— Bat if it turned out in proof that these words were spoken in reference to some judicial proceedings, th'e court is surely wrong in saying, by way of instruction tQ the jury, that we are bound to produce these proceedings.
    It is said by counsel that the words proved were not admissible as evidence under the counts for actionable words, because of the variance. The variance is not material. The case quoted from Starkie on Slander, does not apply. There, the charge included several material words; and the court adjudge that you must prove the whole set. But in this case, all that is material in the words proved, is the same substantially with the words charged. — See Starkie mi Slander, 270, 271.
    But I hold that the defendant, below, has made this proof good under any of the counts : for although wó were not permitted to prove any thing of the trial before the magistrate, without introducing the record, yet in regard to this proof of ours, as to the charge of perjury, the defendant asked the witness if it was not said in reference to a judicial proceeding before the j «slice of tbe peace, ■ Lowe ; and tbe answer is,, {.hat it was — or, at least that it was on that day, and it was. ' understood to. refer to that proceeding. Here, the defendant below sets up the trial, and acknowleges the judicial proceeding ; which is all that was wanted in the first instance.
   Ey Mr. Chief Justice Saffodd :

The present plaintiff brought an action of slander against; the defendant, in the Circuit Court. The declaration contains seven counts — two of which only, arc necessary to be particularly noticed. The first,, charges a colloquium by the defendant, of and concerning a proceeding which had been instituted by the plaintiff against this defendant, for the. purpose of having the latter recognized to keep the peace ; which complaint it is alleged liad been made before, and the proceedings had by, and in virtue of the authority of Thomas I,owe, a justice of the peace. The substance of the allegation in this count is, that the defendant, speaking in reference to the proceedings aforesaid, and in reference to the affidavit made therein, and of and to the plaintiff skid, “ you have sworn a lie.” '

The.fourth count, containing no colloquium, alleges that the. defendant said; of, and to the plaintiff, “ you are perjured.”

At the trial, the plaintiff took a bill of exceptions, which, with other matters, remaining to be noticed, presents the question whether the absence of the written proceedings before the justice, was sufficiently account ed for, to authorise the plaintiff to introduce evidence of their contents, so as to connect the charge of false swearing, with those proceedings. In as much, however, as we think this case can be properly determined on a different principle, I decline an examination of this feature of it.

The bill of exceptions shows that the plaintiff produced on the trial a witness who swore that he heard the defendant say to the plaintiff, “ are you not afraid, as you have perjured yourself?” that, this was at esquire Lowe\s, on the day Wal-. tors was bound to the peace ; that lie beard no allusion made to the proceedings had before the justice. But the defendant introduced witnesses who deposed that they heard all that was said on that occasion, and all had allusion to the judicial proceedings had before the justice.

It also appears that in charging the jury, the Judge instructed them to exclude every thing uttered by the defendant against the plaintiff, if said in reference to the proceedings had before the justice ; that to make such imputations evidence, the proceedings should have been introduced, or secondary evidence given of their contents, after a proper foundation laid for such, which had not been done.

This charge is one of the causes assigned for error.

It is considered unnecessary to examine the other counts in the declaration, or the question respecting the admissibility of the secondary evidence offered, as the principle of our decision oil the first and fourth counts, and the charge to the jury, will dispose of the case for the present, and perhaps be a sufficient indication of our opinion for the future progress of the suit.

In reference to the fourth 'count, it may be remarked, tirat-as it charged the defendant with having imputed to the plaintiff the crime of “perjury” in its technical acceptation, it is clearly actionable in itself,.with or without a colloquium — in other words, whether the reference to a judicial oath was expressed or implied ; in neither event was any production or proof of the proceedings alluded to, necessary to sustain the action. On this point it is considered sufficient to refer alone to two cases heretofore decided by this court, with the references therein contained.

In Lea and wife vs. Robinson, it was ruled, that “ words making a general charge of perjury, are in themselves actionable, without proof that an oath had been taken by the plaintiff.” Also, in Harris vs. Purdy, the allegation was — “ lie has perjured himself on the trial,” stating a colloquium con-corning a particular trial: wc said there could be no doubt that ^IC words were actionable in 'themselves.

But it is contended that the words proved in the count, are variant from those alleged. The words charged are, “ you are perjured those in proof* “ are you not afraid, as you have perjured yourself ?” I think the latter fully embrace the former ; and though it is not sufficient that they bo tantcu-mount, it is that they be in substance the same, and such is my construction of these.

In reference t0 the first count, (as well as all others of the same import,) and the evidence adduced in support of them, it'may be sufficient to say — if under the averment, “ you swore a lie,” with a colloquium referring the imputation to an oath taken before justice Lowe, in a proceeding instituted before him by the plaintiff, for the purpose of having the defendant bound to the peace, the words were proved substantially as charged, and also the reference to the judicial proceedings, this alone was sufficient to sustain the action. The law recognises the authority of a justice of the peace, on complaint duly made, to bind the suspected person to keep the peace, and a charge of false swearing, in a case of (his kind, implies perjury no less than in any other judicial investigation. If part ofthis proof was made by the defendant, the effect was the same as if all had been introduced by the plaintiff. This principle was recognised in Harris vs. Purdy, so far as respects the subject of the colloquium. It was there held, that the words, He swore a lie,” colloquium of plain- • tiff’s testimony on a trial before a justice, were actionable ; and that it was not necessary to allege or prove that the justice had jurisdiction of the case, dr that the plaintiff was duly sworn, or that the false swearing was on a material point. In such case, all these are conceived to be sufficiently implied. If, however, the words are applied to a particular point, or matter sworn to, and from the nature of the subject the oath appear to be extrajudicial; or if the proof show it to be such; or if the contrary be not sufficiently implied from the subject, and manner of the imputation, then the action is not sustained, as was held in Ward vs. Clark.

In the first count in this case, and in some of the others, the words having been laid with reference “ to the proceedings” already described, and in reference “ to the affidavit made therein,” they must allude to both or to either; and the law presumes perjury from false swearing in or concerning them. If the evidence of either party disclosed the contrary, the defendant was entitled to the benefit of such proof by way of instructions from the court to the jury. In this case such evidence does not appear to have been introduced; on the contrary, it was proved that the words were used in allusion to the proceedings had before the justice.

It may however be remarked, that so far as the plaintiff, in any count, has alleged the making by himself a particular affidavit, and the holding a particular court, or judicial investigation, and has made this a substantial part of the allegations of the count, this circumstance created the necessity of his proving the same by competent evidence, before he was entitled to recover for the words, which required a colloquium. But this principle, in its greatest latitude, cannot apply to the fourth count, which charges words clearly actionable in themselves. In as much then, as the instructions of the court below, required of the jury to exclude the evidence on this count also, we think there was error, for which, at least, the judg snout must be reversed, and the cause remanded.

       1 Stew. 138.

       1 Stew. 231.

       Starkie on Slander, 270 to 275.

      2 John. R. 10


author: By Mr. Chief Justice Saffold :

text:
    John McInnis vs. Wm. Rabun, use of Greer & Cooley.

      Error from Wilcox Circuit Court — Before the Hon. Sion ■ .L. Ferry.'
    Where suit is'Brought in the name of the payee of a promissory note, for the use of.A and B, against a defendant as indorser, and the declaration does not state whoindorsed the note to the defendant, nor to whom he indorsed it, nor allege any transfer to or from him, nor any inducement nor consideration for the indorsement; such declaration is bad on demurrer, although it aver that the maker of the note was sued to insolvency, and conclude with a general super se assumpsit.

    This case was submitted without argument. The follow» ing is the opinion of the court:
   By Mr. Chief Justice Saffold :

The declaration is in assumpsit, on a promissory note drawn by J. Watson, in favor of W. Rabun, the nominal plaintiff below, who sued for the use of Greer & Cooley. McInnis is declared against as. indorser of the note, and his appearing to be the only indorsement. There is no allegation of any in-dorsement to him, nor of the person to whom his indorsement was made — nor of any kind of transfer either to or from him— npr any explanation of the circumstances, inducement, or consideration for the indorsement. The further allegations are no other than that the .plaintiff sued Watsoij, the maker of the note, to insolvency, as evidenced by a return of nulla bona, which appears of record, &c. concluding with a general super sc assumpsit.

To this declaration, the defendant demurred. The court overruled the demurrer, and the defendant declining to plead over, final judgment was rendered against him.

This judgment is assigned as the cause of error.

The history of the case as giren, appears to supersede the necessity of much comment in the decision. From anything' alieged in the declaration, the note would appear to have been transferred by delivery from the plaintiff to the defendant ; but even this can only be matter of conjecture. To whom the defendant transferred it, is still more uncertain, as no other person appears to have had any legal interest in it. If, from the circumstances of the suit having been brought for the use of Greer & Cooley, we could assume the fact, that the note was transferred to them, and this for a valuable consideration, by wrhat authority can we say they are the immediate transferees from the defendant; as they do not appear in the attitude of indorsers, there is not even the fiction of law to exclude the presumption, that the note may have passed through a dozen hands between the defendant and cestui que use: or, the fact may be, that the defendant having transferred the note to another, as indicated by his blank in-dorsement, it was returned upon him, paid, and then by him returned upon the payee, who is the plaintiff in the action. On either hypothesis, there is no cause of action. But, if we can imagine a state of facts, consistent with the indications of the note, which would create a legal liability agains4 the defendant — that is not sufficient to enable ¡he plaintiff to recover. They must have been averred in legal form. Nor is this note itself evidence of any debt or demand between these parties.

The judgment of the Circuit Court was therefore erroneous, and must be reversed, and the cause remanded for further proceedings.


author: By Mr. Chief Justice Saffolb :

text:
    H. S. Evans vs. Andrew Clark.

      Error from Wilcox Circuit Court — Before the Hon. P. T. Harris.
    A, jury have not a light to allow the legal interest of this state on a note shown to have been given in South Carolina; but if the plaintiff would recover interest on such a note, he should show what is the legal interest in South Carolina.
    This cause was submitted without argument. The following is the opinion of the court:
   By Mr. Chief Justice Saffolb :

Clark sued Evans in the Circuit Court, on a note dated “Cheraw, Oct. 8th, 1829.” The defendant introduced a witness who said he knew a place of that name in South Carolina, but none in this state.

The defendant moved the court to charge the jury, that if they believed from the testimony, that the note was made in South Carolina, they could give no interest without proof that such contracts carry interest in that state. This instruction was refused by the court. The record also shows, that no other testimony was introduced.

The refusal of the court to give the instructions requested, is the cause assigned for error.

Whether it was competent for the jury, with or without the instructions of the court, to allow what they considered reasonable damages for the detention of the debt, is not a ques" tion uow presented. If, proceeding on the principles of the common law, and the presumption that there was no other in South Carolina, none being shown, the Judge on refusing to charge as requested, had instructed the jury that they could, with or without parol evidence of the value of money in that state, give the plaintiff, besides the amount of principal due, such rate of interest by way of damages, for the detention of the money, as they considered reasonable and just — the question thereby presented, would have been res integra in this • court; and one on which of course, we now intimate no opinion : but, if in that event, this court had considered the instructions given, correct, such legal exposition of the'.principle would have averted error from the record, by showing that the law of interest in this state, did hot govern that contract ; when a mere refusal to instruct, implied an opinion that it did.

In this view of the question, the former decision of this court, is conclusive. , It was there held, that in a suit on a note, made in another state, the plaintiff was not entitled to recover interest according to the rate of this state, but of that where made, or to be carried into effect, and that such rate must be proved as a fact.

The refusal of the court fo charge the jury was an error ; for which the judgment must be reversed, and the cause remanded.

      Ala R. 387.


text:
    H. S. Evans vs. Irvin & Dunlap.

      Error from Wilcox County Court.

    In transitory actions, the court of any county where the defendant is liable to be sued, has jurisdiction, without the aid of a fictitious venue. Where final judgment is given against the defendant on demurrer, the action being founded'on a note given in South C'arolina, and ¡merest is " computed and given by the court, without the intervention of a jury, it is error.
    The judgment, in such case, must be reversed ; it is not such a clerical error as can be corrected by reducing the judgment to the amount of principal due on the note.
    Irvin & Dunlap sued Evans on a note, ‘ which the declaration shows to have been executed in South Carolina. 'The defendant demurred; and final judgment was given against him on demurrer. Tne' court gave judgment for a larger sum than the principal due on the note. That there was no venue laid in the declaration, and that judgment was given for too much, are the principal assignments of error.
    Ellis, for defendant in error.
    It is sufficient if the venue be correctly laid in the commencement of the declaration ; and such venue will govern although it may afterwards .be set forth that the note was given in the state of South Carolina.
    As to the last assignment of error, if the judgment be given for too much, it was amendable in the court below, and therefore, the judgment will not be reversed for this cause, if the court should regard the objection as well founded. But it does not appear that the court estimated the interest allowable by the laws of South Caroline. The interest may have been estimated according to the laws of this state.
   By Mr. Chief Justice Saffold :

This is an action on a note, shown by the declaration to to have been executed in South Carolina. The defendant in tbe Circuit Court, now plaintiff in error, having demurred to the declaration, the demurrer was overruled ; and the defendant failing to plead further, final judgment was rendered against him for about twenty dollars more than the amount of the note, which is presumed to have been a calculation of interest.

1. The first assignment of error brings to the notice of the court, the objection that no verme of the contract is laid in the declaration, so as to give the court jurisdiction. This action' being transitory in its nature, the court of any county where the defendant is liable to be sued, has jurisdiction without, the aid of a fictitious venus. This is conceived to be the correct rule of law, even on demurrer — but it is more clearly so under the statute ; which allows to no demurrer any other effect than that of a general demurrer.

2. Tiie second assignment, that the declaration does not disclose the individual names of the payees of the note, is found untrue in point of fact.

3. The third assignment presents the exception, that interest was allowed on this Carolina note, without the intervention of a jury. The previous cases (Peaceak vs. Banks, and Evans vs. Clark, of the present term) determine this to be error.

But it is contended in argument that this was a clerical error or misprision, which could have been corrected by reducing the judgment to the amount of the principal due on the note, by motion in the Circuit Court; and that the judgment-should be corrected, under the statute of jeofails, at the cost of the plaintiff in error. I do not, however, consider this to be one of the cases contemplated by the statute referred to. The presumption is, that more than the principal was due ; that by the law of the state where it was executed, damages or some rule of interest is allowed; and that the Circuit Court, upon, or without proof of that rate, undertook to compute and allow it ; or that the rate authorised by the law of this state was applied to the case. In any view, the judgment must be reversed, and the cause remanded.

      Aik, D. 277.

       Aal. R. 387.