Carmichael v. Brooks , 9 Port. 330 ( 1839 )

GOLDTHWAITE, J.

A very .brief examination will serve to show that the instrument signed by Spencer, and offered in evidence, was rightfully excluded. It purports to be the written admission of Spencer, made on the same day that the order by Carmichael to the sheriff was executed, of a condition in the contract of endorsement, which, if actually made, would discharge Carmichael from all liability to Brooks — he coming to the possession of the order after its dishonor, and being consequently put on enquiry into all the equities existing between the drawer and payee.

When the signature of Spencer was established to this instrument, it evidenced nothing more than his admission that such was the contract between him and Carmichael, but did not prove that such a contract was in fact made.

Spencer would have been a competent witness for Carmichael, and if the contract was.in truth such as is described by the writing, could have established the fact, but the instrument itself might be made at any time previous to the trial; the fact therein stated might never have existed, and if competent evidence, the plaintiff’s action might be defeated by the combination of Spencer with the defendant, and neither of them be guilty of perjury or forgery. The law is not so defective in guarding the rights of parties, as to permit consequences like these. It is urged that the instrument was, at least, prima facie evidence of having been made at the time it bears date, and that the plaintiff ought to be put on the proof, that it was not then made; but this proof would be entirely out of his power, unless witnesses were present when the contract of endorsement was entered into, who might be able to swear that no such writing was then given, and no such condition introduced in the contract. Spencer, if called as a witness to establish a liability in Carmichael to Brooks, would clearly be an incompetent witness, and would not be permitted to disprove any matter of defence. There was no error in rejecting the writing.

The other point is equally clear against the plaintiff in error. If the application to the County court, had been to exclude the protest on account of the variance, or if the effect of the variance in the description of the order protested and the one sued on, had been the subject of a specific charge, we should feel bound to examine the question with the attention it would then deserve, but the request was to exclude the order as well as the protest. There is no valid objection urged against the admission of the order, and as the County Court was bound to respond only, to the entire request of the defendant, there was no error in refusing to exclude the entire evidence then before the jury, as a part of it was certainly obnoxious to no objection.

The rule is well settled, that a party asking the action of the court on any subject,' must be prepared to sustain the action demanded, in the precise terms in which the request is made, and the refusal of a court to act in the manner requested will not be error, although a portion of the request might have been properly granted, and should have been, if asked independent of the other part —(Elliot et al. vs. Purrol, 1 Peters, 328; Moore vs. Leftwich, 1 Stewart & Porter, 254.)

Let the judgment be affirmed.