author: By Mr. Chief Justice SvrFOLD:

text:
    HATFIELD versus MONTGOMERY, et al.
    In 'cases, where the absence of a subscribing witness to a deerl is not accounted for, secondary evidence is not admissible, to prove the existence of shell ' deed, or any defeasance connected therewith.
    Where the allegations of a bill in chancery, were, that a slave had leen conveyed, with an agreement to allow the privilege of redeeming or repurchasing, to the partij conveying, and the conveyance was on its face, absolute, (the subscribing witness to wliich, was not produced, nor his absence accounted for,) and there was no positive testimony rebutting the implicit denial of a defeasance, by the answer; and a lapse of twenty six years had ensued, without excuse for the ' delay, the Court refused to disturb the sale.
    The assignee of such person making the conveyance, held, not to be a competent witness, to prove the defeasance.
    In the case of a mortgage, as in other deeds, in which fraud is alleged to have been committed, a party is not entitled to an unlimited time for the prosecu- ■ tion of his rights, after his knowledge of the existence of those rights, and of the fraud — but in such case, after an unreasonable delay, the law will presume a payment or discharge of the equity.

    In -this case a bill was filed in the Circuit Court of Jackson county, by Montgomery and Belcher, for the redemption of a negro slave.
    The bill charged, that in the year 1807 or 1809, Hugh Montgomery, the father of the complainant Montgomery, conveyed to the defendant, Hatfield, a negro girl slave: that by an indorsement on the back of the convejmnce, (the consideration whereof was three hundred dollars,) and in consideration of three bushels of salt, the said Hugh had the privilege of redeeming or repurchasing the girl, at any time thereafter, on payment of the three hundred dollars, and the interest. That afterwards, an offer to redeem was made by the agent of Hugh Montgomery; which offer was rejected by the plaintiff in error. The bill further alleged, that the said conveyance was intended as a mortgage, and that the interest therein of the said Hugh was by him assigned to the complainant, Montgomery, and’ half thereof by the latter, subsequently transferred to Belcher. It charged, that the indorsement of the condition, so made on the back of the conveyance as aforesaid, was fraudulently defaced by the plaintiff in error, and that the same remained in his possession. The bill was filed on the 5 th’day of June, 1830, and the only excuse for the delay was the allegation, that Hatfield had removed. from the county in Tennessee, where the contract was made, to another county in the same state, and from thence to Jackson county, in Alabama. The answer of Hatfield admitted the conveyance, but denied that any condition was therewith connected, and - asserted the same to have been absolute and unconditional.,' It set out the bill of sale, by which it appeared that there was a subscribing witness thereto, whose absence was; not accounted for in the bill. The answer further averred, the allegation of an indorsement óf defeasance on the back of the deed, to be false — denied any such indorsement to have been made, and accounted for some stain on the back of the conveyance, (of which profert was made) by averring it to have been caused by accident. The answer also interposed the lapse of time which had accrued between the date- of' the conveyance and the institution of the action, in bar of the complainant’s claim.

      ■ The testimony of the agent of Hugh Montgomery, 'Showed, that an offer to repurchase was made by him to- Hatfield, which the latter rejected, alleging' that . the property was. absolutely his own. No Other testimony, important to the principles decided in this case, was produced, and'the Court, On a hearing of the cause, tendered a- decree for the complainants. The defendant below, took his writ of error to this Court, arid amorig other assignments made, it was insisted,
    1. That Montgomery, the complainant, was an incompetent witness. ■
    • 2. That the subscribing witness to the conveyance should have been produced, or his abserice account» fed for', before the production of secondary evidfericfe. 3. That the lapse of time, barred the action.
    S, .Parsons, for Plaintiff
    cited 3- Johns. Ch. hep. 612 — 2 Stark. 747, 780 — 1 Conn. Rep. 147 — 2 Stark. ■ 745, 756- — 2 Bac. Abr. 584, note a, — -3 Stark. 1062, '63 — 3 Johns. Ch. Rep. 371, 375 — 3 Johns. Cas. 816,. T8 — 2 Equity Cas. 396 — 10 Mod. 19 — 1 Mad. Ch. 257 — 1 'Fonb. 331 — 3 Johns. Ch. Rep. 217 — Story Oh Bail 197 — 8 Johns. Rep. 97 — 1 Carnés Rep. 199 — 5 Johns. Rep. 258 — 1- Mad. Ch. 517 — ibid. 519, 520— 2 Scho. & Lef. 618, 636, 629, 632, 635, 237, 238, 638, 639 — 1 Cokes Rep. 179 — Ham. Dig. 215 — 8 Johns. Rep. 543 — 14 do. 501 — 2 Bibb 4 — I Cokés Rep. 9— 1 Littell 191 — 2 Marsh: 58 — 1 Johns. Ch. Rep. 594— 3 do. 136 — 1 Marsh. 144 — 2 Johns. Ch. Rep. 191— Wheat. Sel. 120, note 90 — 4 Gre'enl 42 — 2 Pick. 368, 5 Conn. Rep. 488 — 1 Rowell on Mort. 122, note w.— Story on Bail 235 — 1 Po?vell On Móri. 126 — 2 Bad. Abr. 372 — 20 Johns. Rep': 528 — 7 Grajich 237 — 1 Call '1.92 — 4 Kent's Com. 139.
    Hopkins, contra
    3 Marsh. 293 — 2 do. 578--1 Stewi.

      168 — Aik. Dig. 284 — 1 Johns. Dig. 577 — 2 Johns. Rep. 451 — English vs. T^ane, 1 Porter’s Rep. 1st ed. 328— Powell on Con. 225, £23 — Story on Bail, 235 — 2 Call, 258, 362 — 3 Deere Williams, 1st Am. ed. 353, 359--I Vern. 133, 393 — 4 Kent's Com. 153, note 5 — 1 Vern. 231 — Story on Bail, 238 — Powell on Mart. 392, note 1— 4 Kent's Com. 126 — 2 Scho. & Lef. 630 — Powell on Mart. 396, 401 — Story on Bail, 235 — 4 Kent's Com. 182 — 9 Wheat. 498 — 1 Mad. Chan. 520, ’1, ’2, 310— Powell on Mart. 392, 389 — 15 Johns. R. 3 — 11 Wheat. 311 — 4 Joints. Chan. R. 293 — 6 Wheat. ASM — Angel on Lim. AM-Fonh. Eq. 331 — Aik. Dig. 281.
   By Mr. Chief Justice SvrFOLD:

The defendants in error, P. R. Montgomery and W. Belcher, of Tennessee, charge by bill, that in 1807 or 1809, Hugh Montgomery, father of complainant Montgomery, conveyed to Hatfield, then of Campbell county, Tennessee, a negro girl, Malinda, for three hundred dollars. After bargaining for said girl, at the time of mailing the conveyance aforesaid, said Hatfield, in consideration of three bushels of salt, of the value of five dollars per bushel, paid him by said H. Montgomery, agreed to allow him the privilege of redeeming or repurchasing said girl at any time for said three hundred dollars, and interest thereon to the time of his offering to redeem; and an indorsement, containing this agreement, on said hill of sale, was then mads and signed by Hatfield — That in a reasonable time thereafter, said Hugh Montgomery, by his agent James M. Campbell, tendered to Hatfield the three hundred dollars, with interest, and demanded the negro, which was refused: that the bill of sale is in possession of Hatfield, so that complainants cannot produce the same; but they pray that Hatfield be compelled to produce it: that said cen-veyance is a mortgage, and was so considered by said Hugh, and that said Hatfield has fraudulently at-temptéd to obliterate and deface said indorsement.

The bill farther charges, that in May, 1830, said -H. Montgomery assigned by instrument, here ready to be produced, all his right, title and interest in said mortgage, to complainant, Montgomery, and that by him, half thereof was assigned to Belcher; and that they would have redeemed said girl, but for the fraudulent conduct of said Hatfield: that, in or about 1-817, Hatfield, removed from Campbell county, Tennessee, to Marion, in the same state, where he resided until within six or nine months of the filing this bill, -when he removed to an obscure part of Jackson county, in this state, with said girl and her issue, (six, or eight children,) to avoid this claim; and prays a discovery of the number and names of the issue, &c.: it charges the hire to have far exceeded the three hundred dollars and interest: it prays an answer to all these allegations ; that an account be taken; that the bill of sale be cancelled, and the negroes delivered up, &c.

The plaintiff in error, as defendant to the bill, by his answer, positively denies all equity alleged; admits the conveyance, but avers the sale to have been absolute and unconditional, according to-the terms of the conveyance; he makes profert of it, and exhibits,, what he avers to be a copy, such as described by him, purporting to be absolute, and without seal. He further says, the back or white side of the bill of sale, on which there was no defeasance, became defaced by the accidental falling of the paper into some dye stuffi The bill of sale thus brought to view, purports to have been attested by Abner Lozell, as a subscribing witness. . The fact of its having been so attested, is not contested. The answer further avers, that this contract was executed not in 1807 or 1809, as charged, but, in March, 1804, and the hill of sale, as exhibited, bears that date; shewing a lapse of twenty six years between the date of the conveyance! and the institution of this suit. The subscribing witness has not been examined, in proof of the alleged contract: his absence is in no way attempted to be accounted fot; nor is any manner of excuse offered, why his depositions were not taken in proof of the alleged defeasance. The contents of the instrument, both the face and the back, are charged as parts of the same contract, simultaneously made; so that a subscribing witness to any part of the conveyance, must be regarded as such, in relation to the entire instrument.

The answer denies that any offer was ever made by Montgomery’s agent, or otherwise, to redteem the property : it also denies, that the defendant ever - removed for the purpose of avoiding a suit for this property ; or that his removals were secret, or to any ob■scure place.

This brief examination of the bill and answer, is sufficient to present for consideration, a question highly important in principle, and one, which we deem decisive of this case. It is, whether, in the contract between Hatfield and Hugh Montgomery, in which the bill of sale was given, there was any valid agreement for the right to redeem or repurchase the iiegro girl ? If we are warranted in determining there was any, we must conclude there was one substantially such as charged in the bill.

This, as well as all other facts, must depend on the weight of competent evidence. Then what is the' •amount of such evidence? The testimony of Hugh Montgomery must be rejected as that of an incompetent witness, for'reasons presently to be stated.

■ The evidence of the other witnesses, is vague and conflicting, as respects the existence of any such de-feasance : so that, if there were no legal objection applying to all the testimony on this point, it is questionable il‘ it could be considered tantamount to two positive witnesses, cr one and pregnant circumstances, in disproof of the defendants’ absolute denial of any defeasance — a matter clearly within his knowledge, and responsive to the allegation of the bill. Nothing .short of this will satisfy the rule of chancery, in this respect. But we are unavoidably led to the inquiry, whether any of the proof offered, on this point, can ■b,e regarded as evidence, while the subscribing witness remains unexamined; and while no foundation has been laid for the introduction of the secondary evidence 1 And is not this an additional objection to Montgomery’s testimony ?

It is true, as contended in argument, that in the case of Hall vs. Phelps, the Supreme Court of New-York recognised the competency of secondary evidence to prove the instrument, it being in the nature of a simple contract. But it is no less true, that in the subsequent case of Fox vs. Reil, et al, the former decision was much shaken, even in relation to simple contracts; and entirely repudiated, so far as it could have been supposed to apply to specialties. In the latter, the action was debt on a bond, to which was the plea of non est factum. At the trial, the plaintiff offered to prove that the'bond had been shewn to the defendants a short time before the commencement of the suit, and that they then confessed they had executed it. To this bond were subscribing witnesses, who were not produced; nor was their absence accounted for. In the consideration of the question, respecting the admissibility of the confession, after full argument, the same Court decided, that the admission of the obligors, was insufficient; that the witness must be produced, or in case of his death; or absence from the state, his hand writing must be proved. Chief Justice Kent, in delivering the opinion of the Court, reviewed the doctrine at great length. He distinguished this case from that of Hall vs. Phelps, mainly, on the ground, that one was on a specialty, requiring greater strictness; the other, on a simple .instrument, concerning which, as was supposed, the rules of evidence might more safely be relaxed than in case of deeds, which are of much higher force and solemnity in the law, and carry with them internal evidence of good consideration. The Chief Justice, though he had concurred in the former opinion, yield;ed the authority of any observations therein, apply;-ing the same doctrine to deeds. These observations, he said, were to be considered as having been made by way of illustration, and not as applicable to the case then before the Court, and therefore, not authority : that the Courts were certainly concluded, by an ancient and uniform rule of the common law,' that, u where the defendant has not acknowledged his deed before a competent public officer, or has not express■ly agreed to admit it in evidence on the trial, but has .put himself upon his plea of non est factum,- the plaintiff must produce the subscribing witness, and give the defendant the benefit of an investigation of the circumstances attending the execution of the deed.” He shewed, that though- the early English law, requiring that the best men in the neighborhood should he registered in the body of the deed, as witnesses of the execution, and that they should form a necessary .part of the jury, to try its validity, when denied, had been relaxed; yet, that the Courts were bound by the well established rule before referred to, that an admission or acknowledgment, to supersede the neces■sity of producing the subscribing witness, must be -made before a competent public officer, or there must ■have been an agreement to admit the evidence upon, •the trial. He further said, he had met with no case where the absence of the subscribing witness was not accounted for, in which the Courts have allowed in •evidence any species of confession by the party, which was inferior in its nature, and less solemn in its form; than as above prescribed. Various other authorities,, •sustain the applicabilhy of the same rule, to all writ* ten instruments which are attested.— Vide, doe ex dem. Sykes vs. Durnford.

The case last reviewed, and those referred to, I think, establish the principle conclusively, that if the rule can be relaxed, (of which I express no opinion,-)' ■it can only be in cases of negotiable securities, for the benefit of commerce. The defeasance in question, ■if one -ever existed, being like the body of the instrument, in the nature of a conveyance of property, must require the same grade of proof, whether the instrument be indorsed or not. Had the entire contract, or the defeasance alone been by parol, then this rule of evidence, (as in the case of English vs. Lane, of the present term,) could have hadnoap-plication to the case, because it could not have appeared that the parties had in the more solemn manner, agreed to rest the entire contract on written evidence, and to rely on the particular knowledge, or general intelligence and veracity of a designated individual, to prove the agreement.

In the case of Rinaldi vs. Rives, it was held that where there is written evidence in the power of the party to procure, parol evidence of the confession or admission of the adverse party, respecting the existence and contents of the instrument, is inadmissible as evidence; that the latter is an inferior grade of testimony. The analagous principle follows, that if an attested instrument has been lost or destroyed, the party claiming the benefit of it must establish the contents by the subscribing witness, if his evidence can be procured, if not, he must remove the suspicion which otherwise arises from its absence, by laying the usual foundation for secondary proof The late decision of this Court, in the case of Robinson's adm’r vs. Burnett, maintains the same principle, shews the sacred character of this description of evidence, and that it cannot be dispensed with, when practicable to be obtained; and that the purely voluntary act of the adversary, cannot deprive a party of the benefit of it..

The same principle is strongly maintained, especially in reference to deeds and other instruments intended to have the same effect, by Starkie in his Treaties on Evidence. He says “If the deed or instrument produced purport to have been attested by one or more witnesses, whose names are subscribed, the party must call at least one of the witnesses; and in cases where the instrument labors under any doubt or suspicion, he ought to call them all: that the law requires the testimony of the subscribing witness, because the parties, by selecting him as the witness, have mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of the circumstances which took place; because he knows those facts which are probably unknown to others. “ So rigid,” says he., “ is this rule, that it is not superseded in the case of a deed, by any admission or acknowledgment of the execution by the party himself, whether the action be brought against the obligor himself, or against his assignees-after his bankrupty, nor by any admission of the execution made by the defendant in his answer to.a bill in equity,” in a different suit:— That, “ the rule applies, whether the question be between the parties to the deed, or strangers;-whether-the deed be the foundation of the action, or but coh ‘k^er8E or "whether it still exists or has been cancell-ed; and though the issue be directed by a Court of Equity, to try the date, not the existence of the deed.

The recent adjudication, in Henry & Emott vs. Bishop, is as strong a case as can be imagined to test the principle. The action was covenant. One whose-name appeared' as a subscribing witness to the' cove--hant, (which also contained the names of two other' Subscribing witnesses,) was introduced to prove the execution. He testified that he saw the two other witnesses subscribe itthat he executed it as attorney forthe- plaintiff;; and that the instrument ever since its date had been in his possession -r and that, after the- period for the performance, the defendant stated -to- him his inability to comply with the contract,, and requested that -the plaintiff would release him.. But this witness farther stated, that he did not subscribe his name- as a witness at the execution of the instrument, but that he had done so since the trial had been called on.. The Supreme Court there.held’,, thát, as it did not appear but that the subscribing witness might have been, produced, and the witness offered could not be viewed as such, not having attested the instrument at the time of its execution, his evidence could not be received. In that case, it will be noticed, there could have been no difficulty respecting the 'identity of the instrument ;■ yet the testimony was rejected, because the witness-offered was'not one-of those selected by the parties, to mate the proof and explain the circumstances. It is also1 worthy of remark, that this latter decision was by the- sanie- Court, and twenty years later than in Hall vs. Phelps, which has been referred to as an authority on the part of the defendant in error.

On the particular point, of Montgomery’s general competency as a witness for these complainants, the case of Roberts vs. Anderson, is a strong authority against it. There the principle was ruled, that one who is charged to have fraudulently acquired title to land, and fraudulently conveyed it, though by a mere quit claim deed, without covenants, is incompetent as a witness for his grantee, in a suit brought against him by a person claiming it as a bona fide purchaser. Here, the question of fraud by Montgomery, as well as by Hatfield, was in issue; and it does not even appear that Montgomery’s was only a quit claim conveyance to the complainants — consequently, on this ground also, he was incompetent to prove the deed. But if these objections to the competency and certainty of the complainants’ evidence could be overcome, when the great lapse of time is considered, I should be constrained to say, the circumstances do not establish the right of redemption, as in case of a mortgage. In Conway's ex. vs. Alexander, Chief Justice Marshall, in delivering the opinion of the Court, illustrates this subject very satisfactorily. He maintains the unquestionable right of all persons laboring under no legal disability, to stipulate contracts either in the nature of mortgages, or conditional sales, and sustains the validity of either, according to such stipulations, and the true intent of the parties. The contrary principle, he says, would transfer to the Court of Chancery, the guardianship of adults, as well as of infants ; and to sustain a sale with a reservation to the vendor of the right to repurchase the same property at a fixed price, and at a specified time, does not conflict with either the letter or the policy of the law. But, that the policy of the law does prohibit the conversion of a real mortgage into a sale, is clearly conceded: and in doubtful cases, the leaning of all the Courts has been against conditional sales, and in favor of mortgages, as the only effectual means of protecting borrowers of money. In the same case, it is said, that, as conditional sales, if really intended, are valid, the inquiry in every such case must be, whether the contract in the specific case was intended, as a security for the repayment of money or an actual sale ; that the form of the deed in questions of this nature, is not conclusive either way — that “the want of a covenant to repay the money is not complete evidence, but is a circumstance of no inconsiderable importance. If the-vendee must be restrained to his principal and interest, that principal and interest ought to be secured’ The Chief Justice also remarked, that the adequacy of the price is a highly important consideration in determining whether a contract was intended as a mortgage or conditional sale.- (See also, Chapman's adm'r vs. Turner.)

In the case before us, it appears that the girl was only about nine years of age, and there is not a scintilla of proof that the three hundred dollars paid, was not the full value of the slave ; the answer avers it to have been considerably more. Let it also be remembered, that the bill does not simply charge a contract of mortgage; the allegation is, that Hatfield agreed to allow Montgomery the privilege of redeeming or repurchasing, said girl. Then, if without proof, the truth of the allegation be admitted, surely it could not be contended, that an agreement to repurchase at a subsequent undefined period, but in contemplation doubtless, of only a few years, could entitle the party or his assignee to this privilege, after the lapse of twenty or thirty years. If the evidence clearly disclosed the true intention of the contract, the reasonableness of it could have little or no influence on our deliberations. Our province would only be, to enforce the contract according to the agreement; or if the intention wras incompatible with the law, to enforce the contract according to its legal effect, if any it had. But here, the intention not being thus manifest, it is proper we should consider the motives which ■could have induced the contract. Then, can any rational motive be imagined, why Hatfield should have taken a slave nine years of age; have advanced an amount of money equal to her fall nakle, if not more $ made himself responsible for her hire when of any •use, and at any rate responsible for a restoration of the girl, with her increase, if any, at the expiration of the twenty six years that have elapsed, or even one fourth of that time, on the re-payment ' of the three hundred dollars, and interest thereon. The probability cf such a contract, is farther excluded by the fact, that no security was taken for the money, when Montgomery’s circumstances appear to have' been very doubtful; even his personal responsibility does not appear to have been contracted. Had the slave died, the loss must have been Hatfield’s; if to live and increase, such a contract, in the time that has elapsed, must deprive him of all the negroes, and thereby affect his interest to the amount of about sixteen hundred dollars, when an absolute purchase of the same slave, or another of the like description, Would have secured all without the least responsibility. • Before we can conclude that a valid contract ■of this kind exists, we should require clear and satisfactory evidence of it; and that the complainants had strictly entitled themelves to this advantage. But, as has already been shewn, the complainants, after this long term of time, have not produced to the Court the best evidence the case admits of, or given any excuse for not doing so. Another consideration weighing strongly against the probability that a mortgage was intended, is the further fact,' alleged by the coiu-plaijiants themselves, that Montgomery, while delivering .up to Hatfield the possession of the negro, with an absolute bill of sale for the same, should not, have taken into his own keeping a seperate defeasance, instead of relying, as he says he did, on an in-dorsement on the conveyance, to be kept by Hatfield.

The argument of counsel, has involved in this case another question, which, under different circumstances, would require grave consideration. It is, whether" the lapse of time between the execution of this contract, and the institution of the suit (being twenty six years) operates as a bar to the relief sought ? and if it would, in the absence of any subsequent acknowledgment on the part of Hatfield, have the complainants established sufficient acknowledgments to avoid this bar ? Was it not further necessary, that they should have disclosed in their bill any circumstances which could excuse the delay ?

After the views already taken of the case, in other respects, I will content myself with a brief notice of these questions. It must be borne in mind, that the defendant, by his answer, as by statute he might, has demurred to the relief sought; and also pleaded in bar the limitation of time, and that the demand is stale.

The counsel for the complainants contend, that, to relief against fraud, as here charged, there is no limitation; and that this is a mortgage of that description, which allows to complainants the period of the mortgagors’ life-time to redeem in. I concede, that in .equity a mortgage is regarded as a mere security for a debt; that while it continues a subsisting mortgage, and until foreclosure, the mortgagor continues the real owner of the mortgaged property; and that in a court of law, except as to the mortgagee, the principle is the same: also, that as a general rule, that which is once a mortgage, continues such until the object be effected. This doctrine is declared more particularly in reference to real estate, but as a general rule, I consider it also applicable to personal property. It does not, however, follow, that if fraud has been practised, the adverse party has unlimited time for the prosecution of his rights, after his knowledge of the existence of those rights, and of the fraud committed ; or, that in case of a mortgage, more than any other deeds, that the law will not presume payment or a discharge of the equity, after an unreasonable lapse of time.

An authority, on which both parties appear willing to rely, in reference to this point, is Haddock’s Chancery, There it is said, that the statute of limitations cannot be pleaded to a bill for the discovery merely offraud, length of time forming no bar. That, “no length of time,” as Lord Ershine more than once emphatically observed, “ can prevent the unkennelling of fraud.” Lord Notingham also remarked, that, “no delay could purge a fraud; that every delay arising from it, adds to its injustice, and multiplies the oppression.” Haddock, however, in immediate connection with the above quotations of these distinguished Chancellors, and on their authority and that of others, continues, by saying, “ Where the fraud was committed a considerable time back, the bill ought to state,' that it roas discovered within six years before the bill was filed; or a waiver of the objection as to length of time should appear on the face of the proceedings; length of time always forming a strong objection, where it can be used to shew acquiescence, but in no other way : that though persons are embarrassed, and reduced by the fraud of others, yet the Courts cannot act upon such circumstances, for then there would be an end of all limitations of actions in the case of distressed persons ; for if relief might be given after twenty years, on the ground of -such distress* it may after thirty, forty, or fifty years.

In the case of Hovenden vs. Lord Annesley, the subject of fraud and of limitations in chancery is ex? amined at great length ; and the principle is maintained, that even in cases of fraud* the right must be prosecuted in a reasonable time after the discovery of the facts constituting fraud. The Lord Chancellor remarks* that the question as to the simple effect of the lapse of time, is very material: he quotes, with approbation, the old maxim of the law, Vigilaniibus non dormientibas servio lex. Again, he remarks, that it is said Courts of Equity are not within the statute of limitations : this is admitted in one respect ■ “they are not within the words of the statute, because the words apply to particular legal remedies; but they are within the spirit and meaning of the statutes, and have been always so considered:” I think it a mistake, in point of language, to say that Courts of Equity act merely by analogy to the statutes i they act in obedience to them. The statute of limitations, applying relief to certain legal remedies — for recovering the possession of lands, for recovering of debts, •&c.: Equity, which in all cases follows the law* acts on legal titles, and legal demands, according to matters of conscience which arise, and which do not admit of the ordinary legal remedies; nevertheless, in thus administering according to the means afford-ed by a Court of Equity, it follows the law.

The case of Shelby’s heirs vs. Shelby's heirs, maintains fully the principle, that the statute of limitations will be a.bar to any relief sought in Equity, if it be a case where relief could have been given at law ; also, that it will run against fraud. In respect to fraud, this exception is admitted, “ that where it has been secretly practised, the statute'will not be a bar; but it is necessary in sucli case, to aver in the bill, that the fraud was not discovered within three years before the institution of the suit; and the complainant must shew, at least from circumstances, that he could not well be supposed to have known that he was defrauded at an early period; otherwise this part of the bill will be considered unsupported.” An authority, particularly relied on by the complainant’s counsel, on this point, has reference to a case where a mortgage on land had lam dormant twenty years, and it was considered that the lapse of time was sufficient to afford a presumption of payment; but that this period was only a circumstance on which to found a presumption, and not in itself a bar. In that case, it was held, that the report of the state officers, by order of the Senate, on the petition of the occupants of the premises, that the mortgage was outstanding, and which also ascertained the balance due on the mortgage, was sufficient to repel the presumption of payment; especially when connected with the circumstance, that the premises remained uncultivated, and a forest until within six or eight years of the time when the claim was asserted.-Vide Jackson vs. Pierce. In that case it is shewn, that the agents of the state had formally and solemnly acknowledged the existence of the mortgage, and the balance due upon it. The subject of that litigation was real estate, when of this it is personal; and in this, the lapse of time exceeded that (after deducting for the revolutionary war,) not less than five or six years. In this caso •also, if all the evidence taken, could be regarded as-, competent, it would fall short of the other, in respect, to the nature and extent of the acknowledgments. The same author, on the same page, cites other ad-, judged principles, which have a more direct application to the case before us : thus, where there has beeui no foreclosure, nor entry on the land by the- mortgagor, nor interest paid within twenty years, the mortgage is not regarded as a subsisting title. Again-a poggeggion of the mortgagee of a slave fox twenty-two years, unaccompanied with any act or acknowledgment, recognizing a mortgage, is a bar to the equity of redemption. He further says, that in determining whether the equity of redemption is gone, the time is to be computed from the last period at which the parties treated the transaction as a mortgaged.

In Marks vs. Pell, a bill was filed for- an account, and for- a re-conveyance thirty years- after the deed alleged to have been a mortgage- was given, during all which time-the defendant had been in possession. It was there held, (the subject being real estate,) that parol evidence of the mere confessions of the defendant, made seventeen years after- the deed, that it was taken as a security for a- debt, was insufficient to entitle the plaintiff to relief; that the claim had become too stale to be thus revived.

In Kane vs. Bloodgood, this subject was very elaborately investigated. The controversy related to bank stock. The Chancellor decreed that the statute of limitations was- a good plea in equity, as well as at law r that those trusts which are mere creatures of a court of equity, and not within the cognizance of ■a' court of law, are not within the statute of limitations; that so long- as there is a continuing and subsisting trust, acknowledged and acted on by the parties, the statute does, not apply :■ but that, if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period, may constitute a bar in equity :• and that other trusts, which are the ground of an action at law» are not exempt from the operation of the statute.

The Supreme Court of the United States, in Bell vs. Morrison, et al, pronounces the statute of limitations to be a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt, from lapse of time; but to afford security against stale demands, after the true state of the transaction may have been forgotten, or become incapable^ of explanation, by reason of the death or removal of witnesses ; that, therefore, instead of-being viewed- in an unfavorable light, as an unjust and discreditable defence, it should have-received such support from the courts of justice, as would have made it what it was intended emphatically to be, a statute of repose. The principle was there also recognised, that if the bar of the statute is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and to be in terms unequivocal and determinate ; and if any conditions are annexed, they ought to be shewn to have been performed.

Now, consistently with the established principles of law, which have been reviewed, and which are considered more than sufficient on the present occasion, it is impossible the complainants can obtain the relief sought upon what appear to be- the facts of the case.

After what has been said, it is unnecessary to notice more particularly any of the complainants’ evidence, except that of the witness Campbell, who is regarded as highly reputable, and whose testimony relating to the alleged tender of the money, is free from all the objections stated in relation to the other proofs relied upon. It is in substance, that between seventeen and twenty years prior to the institution of this suit, he, as attorney of H. Montgomery, demanded the negro in question, with her increasehe is under the impression that he told Hatfield he had the amount of money which had been advanced; he does not recollect telling him he would pay the amount of money due, and interest, but that he said to him he was authorised to pay whatever might be due on settlement, andwould have done so on settlement and delivery of the negroes; but that Hatfield refused to receive the money, saying the negroes were not in his possession also stating that he had a good title to them.. The effect of this evidence, whether proof of a legal ten-del' or not, (and concerning which I do not stop to inquire,) is unequivocal and conclusive proof that Hatfield, at that time disavowed the existence of any mortgage or other trust, and openly professed to hold adversely to the claim now attempted to be established.

Thus it appears, that after the lapse of six or eight years from the contract, Hatfield denied to Montgomery’s agent, which implies full knoudedge to the principal, the existence of any defeasance, or any right of redemption ;• that then there was a farther lapse of say eighteen years, during which this claim was suffered to lie dormant;, while Hatfield continued in the peaceable enjoyment of the property. What period short of that which has intervened in this case, would be considered sufficient to bar a claim of this description, is a question of intrinsic difficulty ; therefore, no, definite opinion is expressed upon it. But we have no-hesitation in saying, a period far short of that which has occurred, is amply sufficient; and that it would be so after deducting all the time that coxdd be claimed in consequence of Hatfield’s removals, as charged';- if' such deduction be, on principle allowable.

Then, on this ground, and the absence- of competent proof that a defeasance ever existed, we are of opinion the decree of the Court below must be reversed, and the complainants bill dismissed..

       2 Johns. Rep. 451.

       3 Johns. Rep. 477.

       2 Maul. & Selwin 62, note b. 3 Johns. Rep. 481-Phil. Ev. 357.

       1 Porter's R. 328, 1st ed.

       1 Stew. 174.

       1st v. 331, 332

       See his numerous authorities here referred to.

       2 Wendell, 575.

       3 Johns.Ch’y Rep. 371

       7 Cranch 218

       1 Call's Rep. 244.

       1st vol. 256

       2 Scho. & Lef. 607.

       Cook’s Rep. 179.

       1 Powell on Mort. 39, a,-note 1.

       10 Johns. Re. 414.

       7 Johns. Rep. 283 — 3 id. 386

       1 Hawks, 17.

       1 Murph. 218.

      . Johns. ch. Rep. 594.

       7 Johns. Ch. Rep. 90

       1 Peters, 351.


source: Caselaw Access Project

author: By Mr. Justice Thornton:

license: Public Domain

text:
    HORTON versus RONALDS.
    A and B bound themselves by a sealed agreement to abide the award of certain others chosen by themselves, in a controversy between them; and that whatever amount was found against either should be paid in debts dm to the •party pound debtor. — Held,
    That where A on the balance found against B commenced an original attachment, and obtained judgment by default, without a jury, as in indebitatus as-sumpsit, for the amount in money, such judgment was erroneous, and that A had not resorted to the proper.action.
    This action was commenced, by attachment, against Ronalds, in the County Court of Limestone. The plaintiff declared as in indebitatus assumpsit, on an agreement under seal, to abide the award of certain persons. The agreement stipulated, that whatever amount should he found due against either of the parties, should he paid in debts due, to the party found indebted, in the State of Alabama. An award was made, and a balance found against the defendant, Ro-nalds. To recover this balance, an attachment was levied and returned to the County Court; and thereon a judgment was rendered against the defendant, by default, for the balance in money, and interest from the date of the award. A writ of error having been taken to the Circuit Court, the judgment was reversed. The case was then brought into the Supreme Court, and the proceedings of the Circuit Court assigned as erroneous.
    Hopkins, for Plaintiff.

    Aik. Big. 41, § 15 — ibid. “269 — Ala. Rep 18 — 2 Chitty’s Black. 100.
   By Mr. Justice Thornton:

This cause was commenced by original attachment, against the defendant in error, who was a nonresident — returnable to the County Court of Limestone county. In that Court a declaration was filed in the form of indebitatus assumpsit; setting forth an agreement, under seal, of the parties; whereby they bound themselves to submit certain matters of controversy between them, to the award and arbitration of two designated persons; who were authorised, in case of disagreement, to select an umpire, any two of whom were authorised to decide; which said agreement contains the further covenant, that whatever amount should be found by the said award, as due from the one to the other, should be paid, not in money, but in debts due to the said party thus ascertained to be the debtor, in Alabama. The declaration also sets forth the award made in pursuance of this covenant, whereby it appears, that the sum of seven hundred and sixty eight dollars, eighty and a half cents, were adjudged as due and payable from the said defendant in error, to the plaintiff. The declaration avers the super se assump-sit, in the common form, and concludes with the breach of non-payment of the said sum of money. A judgment was had by default, in the County Court, and rendered without the intervention of a jury, for the said sum of money, with interest thereon from the date of the award. A writ-of error was taken to the Circuit Court of Limestone; and, upon various errors assigned, the judgment of the County Court was reversed; from which, the'writ of error was taken to this Court.

The assignment of error now made, brings to our view, the correctness of that reversal by the Circuit Court. We have no means of ascertaining, upon which of the various grounds alleged, in the assignment of error below, that Court determined. There is one, however, which, as we think, covers a substantial defect, and sustains the judgment of that Court; which being- decisive of the controversy as now presented, will only he determined by ns. Considering the award as made in pursuance of the agreement, and to be an ascertainment of the amount due, the liability of the plaintiff in error, then arises, under his covenant, to discharge that amount, not in money, but in debts due to him from other persons in Alabama. This being the true nature of the obligation, which is contained in the solemn deed of the parties, there is no warrant in lav/ for attempting to enforce a different liability, and by a form of action not appropriate to the nature of the contract. , ' '

Let the judgment of the Circuit Court, reversing that of the County Court, be affirmed.


author: By Mr. Justice Thornton :

text:
    CARTER, et al. versus CREWS.
    Where the record of a judgment rendered ip another state, was in the following words, “ for the sum of two hundred and twenty dollars debt, which may be discharged by the payment of one hundred and ten dollars,” &c. — Held,
    1st. That debt was a proper action for the recovery of the claim.
    2d. That in an action to recover the amount due on the judgment, it was not error to declare for the conditional sum of one hundred and ten dollars.
    In this case, the plaintiff below, brought his action of debt against the defendants, in the County Court of Franklin, to recover the amount due on a judgment rendered in the State of Virginia. The entry of judgment in the Virginia Court, was, for the sum of two hundred and twenty dollars debt, to be discharged by the payment of one hundred and ten dollars, &c. The plaintiff declared for the sum of one. hundred and ten dollars, and to his declaration a demurrer was filed. The County Court overruled the demurrer, and rendered judgment for the plaintiff. A writ of error was then taken to the Circuit Court, and the judgment affirmed; whereupon, the plaintiffs in error brought the cause to this Court, and assign•ed as cause for its reversal, that the action should have been brought for the sum of two hundred and twenty dollars, and not for the lesser sum-.
    Peck, for Plaintiff.
    4 Munf. 307 — 1 Stervt. 152,
    P. Martin, contra

   By Mr. Justice Thornton :

.This was an action of debt, brought by the defendant in error-, against the plaintiffs, in the County Court of Franklin — where, upon a demurrer filed to the declaration, a judgment was rendered for the said defendant 5 from which, the plaintiffs took a writ of error to the Circuit Court of said county — assigning for error the judgment aforesaid, which was affirmed : and now, in this Court, the judgment of the Circuit Court, in the premises, is also assigned for error.

The action was brought upon a record of a judgment rendered against the plaintiffs, in the State of Virginia, on the twentieth of June, 1827, in this form ; “ for the sum of two hundred and twenty dollars debt, which may be discharged by the payment of one hundred and ten dollars, with legal interest thereon from the 25th day of December, 1821, till paid.” The declaration demands, as the sum due and detained, the said sum of one hundred and ten dollars, and the costs of suit, amounting to one hundred and seventeen dollars and sixty five cents. ■ The demurrer, it is contended, should have been sustained, for not demanding the sum of two hundred and twenty dollars, by the declaration. If it be a correct principle in pleading, that the writing sued on, whether it be a specialty, simple contract, or record, may be declared on according to its legal effect, I see no satisfactory reason why the declaration in this case, should not be maintained.

If suit were brought upon a penal bond, by the common law, the penal sum must not only have been demanded, but that amount was recoverable. The manifest injustice, however, of this result, was obviated by the intervention of chancery, which always relieved against the penalty, and restrained the recovery to the sum in the condition, which was equitably due. This necessary resort to chancery, however, being expensive and dilatory, by statutes in England, of 8th and 9th William III, which I believe have been adopted, or enacted, in every state in the Union, the-judgement was required to be entered at once, in the common law courts, for the conditional sum ;• and perhaps the most technical mode of doing this,, is, that which seems tobe adopted in Virginia; that is,, to enter the judgment for the penalty, which may be discharged by the lesser amount; which last, alone, can be levied by execution. Is it not apparent then,, that the amount actually due by the judgment, is in effect, and in truth, that lesser sum ? If the judgment were rendered, as I believe judgments are in this state, under the same statute, there could be no ground even for car vil. We have been referred to a decision in 4 Munf. 307, from whence it appears, that the very defect, here sought to be availed by the demurrer, was held fatal-in Virginia, even though not demurred to, in the inferior Court. The only reason which is given for the decision in that case, is, that by the mode of declaring, the defendant in the action might be, in event, subjected to the recovery of a greater amount, than that mentioned in the first part of the judgment, which is to be discharged by the smaller sum named therein,. If, however, the judgment, itself, by its own terms, subjects him to this predicament, and not the mere mode of declaring on it, then if that be unjust, the original judgment should he attacked, as erroneous, and not the declaration, which seeks only to obtain its benefit, as it stands. Suppose no action were brought on this Virginia judgment, but that, after seventeen years, an execution were to issue upon it 1 If the ministerial officer obeyed the mandate of the execution, would he not levy more than the amount named ih the former part of the judgment ? The judgment then, to be perfect in itself, according to this view, should contain a restriction, -which would prevent the recovery of interest, beyond what, added to the principal, would be equal to the first named sum.

, I do not think, however, that the analogy holds between a judgment of this character, and a penal bond, and the argument drawn from it, to my mind, is fallacious. Admit that a judgment upon a penal bond, can in no event, be greater than the penalty, yet, when • the bond is carried into judgment, which, by the statute, is to be for the amount actually due, there is, in contemplation of law, no longer any penalty. There is but one single sum in truth, which is due. If it is illegal, that in any event, more should be realised from a judgment on a penal bond, than the penalty, the judgment itself should guard against that result:: but so long as the judgment pursues the form of the one sued on, and runs for the conditional amount, with interest, until paid, more than the penalty may eventually be levied, by delaying the execution. Nowy if a greater amount becomes due, and a necessity arises, to sue upon the judgment, why not allow a recovery by action, to the extent really due, according to the terms of the judgment, and which, by execution, could be levied upon it. If, however, it were illegal to recover more on a judgment of this sort, than the amount first named in it, this matter could as well he regulated when the action is brought, for the lesser amount, as where, in an action on a penal bond, from the length of time, the interest added to the condition, exceeds the penalty.

As I would sue on a penal bond for the amount promised to be paid, and not the condition, which, by the statute, shall be the sum to be recovered, so, in suing on a judgment, I would demand, without apprehension of error, the amount actually due by it; whether the form were a nomine pcsnce, or a direct award of that amount, without mention made of any other. I think either mode of declaring on this judgment, would be substantially good; as either mode of entering the judgment itself, would have been equally valid. There is no misconception of the remedy here — the action is properly debt. The mode of demanding, is at most, but a formal defect, and so, not available on general demurrer, which is the only kind now tolerated by our statute.

Let the judgment be affirmed.


author: By Mr. Justice Thornton.

text:
    MEAD versus DANIEL, et al.
    The complaint of a party, in a proceeding before a justice for Forcible- entry and Detainer, need not specify the land by statutory demarkotions of section, township, and range: any description by metes and bounds, and objects of notoriety in the neighborhood, is sufficient.
    In such proceeding, the law does not require the Justice to record and certify all the evidence before him. It is only necessary to record and certify such as is admitted after objection, or rejected when offered.
    An unexpired term of years, is a sufficient estate to support this proceeding.
    This was an action before a Justice of tbe Peace-in Blount county, for forcible entry and detainer.— On the trial before tbe Justice, a judgment was rendered in favor of the plaintiff in error. The defendants having taken the case to the Circuit Court by certiorari, assigned, among other causes—
    1st. That the complaint did not specify the land with sufficient certainty, nor the estate of the plaintiff therein.
    2d. That sufficient evidence was not recorded.
    The Circuit Court reversed the judgment of the-Justice, aud the plaintiff took his writ of error to- this-Court.
   By Mr. Justice Thornton.

This was a proceeding had before a Justice of the Peace, instituted upon the complaint of the plaintiff in error, for a forciblé entry and detainer, by the defendants. The proceedings were brought into the Circuit Court of Blount county, according to the statute regulating such case, by writ of certiorari, where various errors were assigned, upon which, the judgment of the Justice was reversed. From this judgment of the Circuit Court, a writ of error has been taken to this Court. The assignment of errors here* involves the same matters, which were adjudged below. Of these various grounds, which are six in number, all' of them except two, are errors of fact, of the existence of which, the record not only presents no evidence, but on the contrary, is contradictory of them.

It is needless to use any argument to shew, that the remedy for such errors as those, cannot be available in a proceeding, where the record alone is the matter to be tried; and that too, by itself — not by extraneous matter of proof, resting in parol.

The fifth and sixth errors, relate to the record as it exists; and as to the former, viz. that the complaint does not sufficiently specify the land, nor .the estate of the claimant therein, we think both of those requisites of the law are substantially complied with. The •estate is alleged to be an unexpired term of years; and the land, though not described by the statutory demarkations of range, township, and section, is delineated by metes and bounds, calling for natural objects of notoriety in the vicinage.

As to the latter of the two errors above mentioned, as referring to the record returned, which is, that there is no evidence recorded to support the verdict of the jury, the law does not require the Justice to record and certify all the evidence, nor any of it indeed, except such as was admitted after objection, or rejected when offered.

We think that there was error in the reversal of the judgment of the Justice of the Peace, and that the judgment of the Circuit Court be therefore reversed; the judgment of the Justice affirmed; and that the same be certified to the Circuit Court, that a proce-dendo may issue to the Justice.


author: By Mr. Justice Hitchcock :

text:
    SWITZER versus GUARDIANS OF HOLLOWAY.
    If, in a suit by guardians, it is omitted in the declaration to make profert of tiie letters of guardianship, such defect is cured by a verdict.
    The omission to-make profert of letters of guardianship, can only be taken ad. vantage of by demurrer.
    Holloway, by guardians, brought an action of deti-nue against the plaintiff in error, in the Circuit Court of Marion, for the recovery of a negro slave. The declaration contained no profert of letters of guardianship, and under the plea of non detinet, a verdict was rendered for the defendants in error.
    Switzer having taken a writ of error to this Court, assigned for cause of reversal,
    1st. That there was no sufficient issue.
    2d. That the declaration contained no profert of letters.
    P. Martín, for Plaintiff

    Grass, contra.

   By Mr. Justice Hitchcock :

This is an action of detinue, brought by the defendant in this Court, by his guardians, for a negro.— The declaration is in the common form; but no pro-fert is made of the letters of guardianship. The defendant below, pleaded,

1. “ Non detinet” — to which there was issue.

2. “ Purchased of Billy Holloway,” — to which there is a replication, that the vendor was of unsound mind, and incapable of contracting away his property ; and that guardians had been appointed, and that they governed him and his effects. To this there is a general replication in short, and issue, and a verdict was had for the plaintiffs, for four hundred and fifty dollars.

The assignments are,

1. That there -were no such issues formed as would enable the jury to try the cause; and,

2. That the declaration is insufficient; there being no profert of the letters of guardianship. .

The pleadings were, by consent, taken in short.

The first plea of non detinet, is a proper and issuable plea, and will sustain the verdict; and the want óf the profert of letters of guardianship, is cured by the verdict. It could only be taken advantage of by demurrer.

The judgment must be affirmed.

       1 Chitty’s Pl. 402.


text:
    CALLISON versus LITTLE.
    Where there is a joint interest existing in a contract, and one of the parties dies, before action is commenced, such action must be brought in the name of the survivor; and a failure to set out in the declaration the contract, as ü existed, and to shew the interest of the plaintiff to be as survivor, is error.
    This was an action of assumpsit, instituted in the Circuit Court of Blount, by Little against Callison. ■The declaration showed the cause of action, to have been a reward offered by Callison for the arrest of one Brazille, who was charged with murder. On the trial, it was admitted by the plaintiff below, that one Queen, who was deceased, had had an equal interest in the reward, but no statement of this fact was disclosed in the declaration. The Court below instructed the jury, that if they believed Queen 'was dead, Little had brought the action properly. The jury rendered a verdict for the plaintiff, and the defendant having excepted to the above charge, took his writ of error to this Court.

      Hopkins, for Plaintiff
    cited Chilly's PL 300 — 1 Johns■ Rep. 34 — 1 Saund. 191, note 1.
    McClung, contra.

   By Mr. Justice Hitchcock :

William Little brought an action of assumpsit, against John G. Callison, in the Circuit Court of Blount county, to recover the sum of one hundred ■dollars, -it being the amount of a reward previously offered by said Callison, for the arrest of one William Brazille, who was charged in the advertisement with the crime of murder.

There are three counts in the declaration, in each of which, the plaintiff avers that he had arrested Bra-zille, at the request of Callison. Upon the trial, it was proved that Brazille wa.s arrested by a constable, under a warrant from a justice of the peace, in a house in which Little was at the time of the arrest — that Little gave no aid in making the arrest— and the constable thought he was present for the purpose of assisting Brazille to make his escape. It Was proved, that after the arrest was made, Little and one Queen, jointly claimed the reward, and each adj indited their claim to it was equal and joint. Queen was also present at the time of the arrest. Brazille employed, a lawyer, after the arrest, to defend him, and made his note, with Little as one of his securities, for the fee. Little also agreed with the lawyer, that if the reward could be recovered, it should be applied as partial payment of the note. It was admitted by Little on the trial, 'that if Queen were alive, lie would have an equal and joint claim to the reward. There was proof of a common report, that Queen was dead. It does not appear from the declaration that Queen was to have had any part of the reward, and no mention of Mm is made in the declaration; but the -whole reward is claimed by Little on his own account.

Several instructions were asked of the Court, which were refused: only one of which will be noticed— which is, that the Court was requested to instruct the jury, that if they believed from the evidence, that Queen, if alive, and Little, were jointly entitled to the reward, that Little was not entitled to recover. The Court refused this instruction, but instructed the jury, that if they believed Queen was dead, Little had brought the action properly.

There is no principle better settled in law, than that actions upon contracts, either express or implied, must be brought in the name of the party in whom the legal interest in such contract is vested; and that where there is a joint interest, and one of the parties dies before suit is brought, the action must be in the name of the survivor — setting out the contract as it existed, and shewing the interest of the plaintiff to be as survivor; and that the omission to state the case as it existed, may be taken advantage of, either by plea in abatement, or on the trial, for the variance between the declaration and the proof.

In this case, it being admitted by the plaintiff below, that Queen was a joint owner of the debt, if it existed, the Court clearly erred in refusing the instruction asked for, and in giving the instruction it did..

The judgment must therefore be reversed..

       1 Chitty, 4


author: By Mr. Justice Hithcock :

text:
    ALDRIDGE versus WARNER’S EXECUTORS.
    A and W entei-ed into a covenant, whereby A, after acknowledging himselfin-debted to W, assigned to him certain bonds. One T also signed the cove* - nant, (as attorney for W) which was drawn to answer as a receipt from T, and also as an assignment of the bonds. In an action by W’s executors upon, the covenant — Held,
    1st. That the negligence, of W in collecting the assigned bonds, was not in issue’ under the plea of “ covenant performed.”

    2d. That T. was a competent witness to shew' the result of his efforts to collect, the bonds.
    Warner’s executors commenced their action of covenant, in the Circuit Court of Franklin, against the plaintiff in error. The cause of action, was an agreement, signed by the parties, and one Thompson, which was framed to answer the purpose of an assignment by the firm of Aldridge, Myers & Pendle-ton, to Warner, of certain bonds, and as a receipt by Thompson; as an attorney, for their collection. The agreement set out an acknowledgment of debt due by Aldridge to Warner, and to secure which the bonds were assigned. It also contained a covenant on the part of Aldridge, to make good any deficiency of the bonds in discharge of the debt. The declaration averred a deficiency to meet the claim, by reason of the insolvency of a portion of the makers of the bonds assigned, and alledged a balance due, of which the defendant had received notice. To the action the defendant plead, “ covenant performed;” to which there was replication and issue. The defendant below, as appeared by'the bill of exceptions, moved the Court to instruct the jury, that before the plaintiffs could recover the amount of the deficiency, (if on account of the insolvency of the obligors of the assigned' bonds,) an offer to return those bonds, or an offer to transfer the judgments recovered on them, should have "been made : Also, that before the plaintiffs could recover, they were compelled to produce evidence, that within a reasonable time after the assignment of the bonds, application had been made to the obligors-for payment, and that notice was given to the defendant of their non-payment. The Court refused to give-the instructions asked, and there was a judgment for the plaintiffs below. It also appeared that Thompson had been admitted as a witness, to prove the result of his efforts in collecting the bonds.
    It was assigned for error here, that the Court erred,,
    1st. In overruling the instructions asked.
    2d. lu admitting the testimony of Thompson, •
    Peck, for Plaintiff.
    The assignment of the bonds under the agreement, was made in 1820, and the action was not brought till 1832.
    The negligence in this case, is such, as ought to have released the defendant below from all liability.
    It is not sufficient to show, by mere proof, that the obligors of any of the assigned bonds not sued, were insolvent.
    Solvency could only be legally tested by suit, and it is only in that way, that sufficient diligence could have been used.
    Again — the party surely vras not privileged to recover on the original debt against the assignor, while he held subsisting judgments against the obligors of the- assigned bonds.
    The plea, indeed, was “ covenant performed but if diligence and notice were necessary to render the defendant liable, then the same must be established, or the covenant remains unbroken. The true construction of the covenant is the same vdth the obligation, which the law raises on the assignment of a note.

      As to Thompson’s testimony: if the instrument he a covenant, he was certainly a covenantor, and he' could not therefore be a legal witness: — 9 Johns. Rep. 121 — 1 ib. 34 — Stocking vs. Conway’s ex’or s, 1 Porter’s Rep. 1 si eel 200.
    P. Martin, contra.

    To this action the defendant pleaded “covenantperformed,” and under this state of the pleadings there is no way to get at the- question of due diligence.
    That matter could only have been raised by means of a special plea: but the plea was affirmative, namely, that defendant had performed his covenants. He was, therefore, bound to prove what he had thus set up in avoidance of the action.
    ■ Has the amount been paid ? Have the covenant,1s been performed? These were the only questions, which the pleadings raised for determination, and the instructions asked were therefore altogether inapplicable.
    To the objections to the competency of Thompson,, it may be answered, that he was in no way interested.-. He received the papers as an attorney, and was as-competent as though he had never seen the covenant.. jButter’s N. P. 283 — 5 Cranch, 100 — 6 ib. 206 — 10.. Johns. Rep. 397.
   By Mr. Justice Hithcock :

This is an action of covenant, brought by the defendants in error, as executors of B. Warner, against Thomas Aldridge. The declaration sets out, that on the thirtieth day of Dec. 1820, by a certain agreement between the said Thomas Aldridge, and the plaintiffs’ -testator, the said Thomas Aldridge, by re^ ference to a memorandum at the foot of said agreement, acknowledged himself to be indebted to the said B. Warner in tire snm of one thousand fonr hundred «and thirty nine dollars and twenty nine cents ; to secure which, the firm of Aldridge, Myers & Pendle-ton, assigned to the said B. Warner, a number of bonds, which are set out in the agreement, and reci:ted in the declaration; amounting in all, to the sum ■of one thousand six hundred and eighty nine dollars thirty eight cents, exclusive of interest; that the said Aldridge covenanted with the said B. Warner, that in case a full suificiency should not be made to discharge said debt and interest, then said Aldridge ■should make good the deficiency. ■

The plaintiffs further aver, that a “ full sufficiency was not made out of the claims assigned; that -certain claims (setting them out) were insolvent at the -time-of the assignment; that certain others (also setting them out) became so in a short time after the transfer, and that nothing could be made out of them; and that on the 20th April, 1831, there remained ;due, after allowing all that had been collected, one ■thousand dollars and fifty three cents, which is alleged still to be due, of which the defendant had had ■notice. The declaration avers, that the plaintiffs have, in all things, kept their covenant; and charges the -defendant with a breach on his part, in not having .paid the sum of one thousand dollars and fifty three ■cents, above stated, according to his covenant to pay said deficiency.

To this declaration, the defendant pleaded in short, “ covenant performed,” and the plaintiffs subjoined replication and issue,” which are all the pleadings that appear in the case. It appears there was a previous declaration, to which there was a demurrer, which was sustained, and the plaintiffs had leave to file an amended declaration.

At the trial of the cause, below', the plaintiffs proved by the transcripts from the Courts in Virginia, where the defendant lived, that suits had been prosecuted on all the bonds, not collected, except two ; and that he had used due diligence to collect the same; that as to those two, he proved by the deposition of one L. Thompson, that they were notoriously insolvent, at the time of the transfer, which fact, he proved, was well known to the defendant: he also proved by said Thompson, that the fact of the insolvency of several of the obligors, was also known at the time of the said transfer. The testimony of Thompson was objected to, on account of his want of competency, he having signed the covenant. It appears that he signed it as attorney at law, and received-the claims to collect, as attorney of Warner. The plaintiffs also proved by one Tarver, that at the end of 1831, or beginning of 1832, he, as the agent of the plaintiffs below, gave the defendant notice of the failure to collect a large part of the claims assigned, and that there was a deficiency to satisfy the debt. No other notice, it was admitted, was proved. The defendant objected, that this was not sufficient notice to fix the defendant’s liability ; which objection was overruled.

The defendant moved the Court to instruct the jury, “that before the plaintiffs could recover for a deficiency, if on account of insolvency of the obligors in the assigned bonds, that the plaintiffs should tender to the defendant a return of the notes or bonds declared insolvent, or offer to transfer to the defendant the judgments recovered thereon;” which instruction the Court refused to give. He also requested the Court to charge the jury, “ that before the plaintiffs could recover, they were bound to show that they had, withi n a reasonable time after the assignment of the bonds, made application to the obligors in said bonds for payment, and that said defendant had - notice of their refusal, within a reasonable time thereafter; the evidence of the transcripts of the judgments, which it was admitted were sued ‘on in due time, and that of Tarver, above stated, being all that was given to the jury ;” which instruction the Court refused to give. To these opinions of the Court as above stated, exceptions were taken below, and which are assigned for error here.

The objection to the competency of Thompson, was properly overruled. The instrument sued on, appears to have been intended to answer the double purpose of a receipt, by Thompson, as attorney, for the ■collection of the bonds transferred, as an assignment -of the bonds to Warner, and also to set forth the covenants between Warner and Aldridge; and; ad the foot of the instrument is a statement of what Aldridge was indebted to Warner. The assignment to Warner, to pay the debt due him, made him the legal holder of the bonds, and the implied covenant of diligence, in the collection of them, Avas thereby, fixed upon him. There is no. undertaking of Thompson to Aldridge: his liability is to Warner, and he Avas no doubt liable to him for the faithful discharge of his duty. But he has no direct interest in the result of this suit, and it cannot be used for or against him in any action which may be brought on his receipt. He was the agent of Warner, in the collection of the bonds; and ex necessitate rei, is a competent witness to show what was the result of his efforts. If this were an action against Warner, for the alleged negligence of Thompson, he would be excluded — but this not being the case, the objection only goes to his credibility, and not to his competency.

Before entering upon an examination of the other questions, presented by the bill of exceptions, it will be proper to look at the state of the pleadings in the case. The covenants contained in the instrument sned on, are clearly dependent: they are treated as such by the plaintiffs. An averment of diligence is made in the declaration, as to the efforts to collect the assigned bonds, and the defendant, had he chosen to do so, might have put the fact of diligence in issue. But the only plea put in by him, is, that of covenant performed.” He does not plead the non-performance by the plaintiffs, of the condition precedent.

There is no plea of the general issue in the action of covenant. The plea of non est factum, only puts the execution of the instrument in issue, and all other defences in this action must be pleaded specially. If the defendant had intended to have relied upon the negligence of the plaintiffs, in not collecting the assigned bonds, that should have been set out in a special plea, setting forth particularly, in what that negligence consisted. The plea of covenants performed, only denies the truth of that part of the declaration, which charges the defendant with a breach of his covenant, in not making up the deficiency.- The plea, if written out in full, would have stated that the plain-liffs ought not to recover, because he, the defendant, had paid the deficiency claimed in the declaration, and would have concluded to the country, and this plea does not require the plaintiffs to prove diligence.

Whatever may have been the view, taken by the parties in the trial below, this Court can only look at the case here, as it is presented by the pleadings, and the rules of law applicable to those pleadings. The question presented by this plea, is, whether the defendant had paid the deficiency charged; not, whether the plaintiffs had neglected to prosecute with diligence, for the collection of the notes. In this view of the case, it will be apparent, by a. reference to the bül of exceptions, that none of the charges asked and refused, were applicable- to the issue, "as made. What might have made them material, it is not for this Court to decide. And though the plaintiffs may have offered evidence which is not material to the issue, yet that does not authorise the defendant to call upon the Court for instructions upon that evidence; and its refusal to give them cannot be assigned as error. It is sufficient for us, that the issue does not present the question, upon which the instructions are asked.

It is remarked, by Mr. Justice Livingston, “ that however desirable it may be to admit in evidence on the general issue, in an action of covenant, on a policy of insurance, every thing which may avoid the contract or lessen the damage, as is done in actions on the case, this Court does not know that it possesses the power of changing the law of pleading, or to admit evidence inconsistent with the forms which it has prescribed. No rule on this subject is more indexi-ble, than, that in actions on deeds, all special matter of defence must be pleaded.”

In the case under consideration, the questions asked, if granted, would have allowed the defendant to set up the fact, that he had never been liable to pay that, which he had averred that he had paid. It is not, however, to be understood, that the instructions asked, in this case, would have been proper to be granted, under any state of pleading. They do not, any of them, directly raise the point of diligence, which, under any possible state of pleading, would be the only defence the defendant could make.

The judgment must be affirmed. In this, the Court are unanimous; though they are not so, upon some of the views presented in this opinion.

       1 Starkie, 113

       Starkie, 115

       1 Chitty's Pl. 482.

       3 Chitty 1002

       Cranch, 219