Waters v. Creagh , 4 Stew. & P. 410 ( 1833 )

Taylor, J.

The ground upon which the hill is filed, is testimony discovered since the trial at law, which proves, tliat the note, upon which a recovery had been had against Waters, and which he had executed as security, had been discharged hy the principal, long before the suit at law was brought.

It is insisted, that there is no equity in the bill, for two reasons — ■

1st. Because the complainant was bound to know who was present at the time the conversation was had with the deceased executor; and

2d. Because a payment is not charged to have been admitted, by the executor, but merely a settlement, which, in fact, may have amounted to no discharge at all.

I can not agree, that the complainant was bound to know all the persons who might have been present when the conversation took place. He may have requested the man who died before the institution of the suit at law, to pay attention to what passed, with the view, if ever necessary, of using him as a witness; and it is unreasonable to suppose, that any person could recollect all who casually heard a conversation which took place years before, no matter how interesting that conversation may have been to him.

The words used by the deceased executor, as charged in the bill, are, that the principal “had paid or settled the bond, and he,” (the security) “ need give himself no further uneasiness about it.”

The words “paid” and “settled,” when used in common conversation, in relation to a debt, are understood equally as conveying the idea, that the debt is discharged; particularly when in reply to the question of one so deeply interested in knowing, as the security: it is said, that the principal has “ settled” the debt, and that he need give himself no further uneasiness about it.

The next question is, docs the proof sustain the allegations of the bill ? . ,

The witness testified, that he heard a conversation between Waters and the deceased executor, at the store of the latter, and heard Waters inquire, “ what was going to be done with a note then held by Bayard, (the deceased executor,) as the partner or executor of Mitchell, deceased, executed by Samuel B. Bidgood, and the said Waters, his security, for about the sum of one hundred dollars. That Bayard told Waters, that he and Bidgood had settled the matter, and that Waters need not trouble himself about it.” The witness also testified, that Waters was informed of what he knew on the subject, after the judgment at law was obtained against him, by an accidental conversation between them, arising from an application made by him, to Waters, for money which he owed him. when Waters replied, he could not pay him, because he had money to pay to the sheriff on account of Bidgood: which produced a communication from witness, of his being present at the conversation between Waters and Bayard.

Thus the material allegations of the bill are sustained, both as respects the acknowledgments of Bayard, and the discovery of the testimony subsequently to the trial at law. I shall not enter upon an examination of the effect of the words used by Bayard, to lull Waters, the security, into a belief of his safety, and thus discharge him from his responsibility, as security. It seems to me, without rebutting proof, they would have afforded a sufficient de-fence to the principal himself.

But it is said, the denial of the defendant is only balanced by the evidence of one witness, and that there should be the corroborating testimony of another witness or strong circumstances, to authorise a decree in favor of the complainant. There is, however, no denial of the charges of the bill, to be found in the answer, and if there were, unless the defendant had given satisfactory reasons for having such a knowledge of the facts as would justify him in thus responding in the negative, the rule requiring two witnesses to disprove a responding denial of a defendant in chancery, could not apply.

If a defendant who had no apparent means of knowing any thing of the facts charged, who appears to have been a stranger to them, makes positive averments, in his answer with respect to them, without' explaining the manner in which he acquires a knowledge justifying such positive averment, surely the answer could weigh no more than the evidence of a witness testifying to facts which transpired an hundred miles from him, without explaining hy what means he became conusant of the facts to which he deposes.

For these reasons, I think the decree should have been in favor of the complainant — and this is the opinion of the Court.

The decree is therefore reversed, the injunction, except for the costs, is perpetuated, and the sheriff is ordered to refund the amount collected by him, except the costs, to the complainant; it is further ordered, that the defendant recover of the complainant, the costs of this suit which accrued in the Circuit ■ Court, and that complainant recover the costs of this Court, -