Read v. Bailey ( 1811 )

Martin,J.

It is not easy to distinguish this case from that cited out of Ambler. There the defendant interrogated whether he had not received a quantity of satins from the plaintiff answered he had, but he had paid for them. In the present, the defendant, interrogated whether a paper presented to him is not a true copy of a letter which establishes the plaintiff's claim, answers, it is, but the plaintiff has received by him-seIf or his agent, a paper, which, if not account-edfor, prevents the plaintift's recovery.

IHE plaintiff's counsel admits, that in a court of common law, the party producing his antagonist's answer, makes the whole of it admissible, but not conclusive testimony-that it is not to be separated, but to be received entire and unbroken. Examining, therefore, the case on this ground, we find a fict sworn to, which, if believed, must protect the defendant. This fact is, that the plaintiff has received by himself, or his agent, a paper which, prima facie, bars his recovery. It is true we have not the ground of the knowledge of the party who swears, but the fact is positively sworn to. The information may have been obtained in a conversrtion with the plaintiff, or by the sight of an instrument in the plaintiff's hand, a receipt or an account.

The plaintiff has chosen to call the defendant as a witness. After the answer was put in, he has not put interrogatories to obtain the ground of the defendant's knowledge. He has not moved, as he knight, if, as it is contented, the ease is to be distinguished from that of Taylor & Hood vs. Morgan, that such part of the answer which was not called for by the intelTogatory, be stricken off, but has proceeded to trial, and now contends that the court is to stop in reading the defendant's answer, after that part of it which admits the copy shewn to be substantialiy correct: all the rest being inadmissible testimony, and if admissible, not conclusived

I admit that there is some difference between this and the case of Taylor & Hood vs. Morgan. In that case the answer of the defendant was necessarily qualified, and advanced a fact which prevcnted the natural consequence of an absolute answer. He answered he received the goods, as the consignee of a third person, to prevent the conclusion that he received them, as a purchaser from the plaintiff. But in the case in Ambler, the defendant answered, he had received the satins, but had paid for, them, and this was held evidence of the payment. Here the defendant admits a paper which proves he received the proceeds of the sale of a chattel, and adds, the plaintiff, on whose account the money came to his hands, has received a note therefor, which is not accounted for. I am therefore led to the same conclusion which influenced the chancellor, and must conclude that the receipt of that paper is proven. The cases are not to be distinguished, because the defen- dant has fairly related particulars which he was not bound to detail.

THE case of the executor, supports the position contended for by the plaintiff: but if we give it all the force which his counsel insists it is to have, it is at variance with all others. Evans forewarns us that the rule laid down in that case, is principally applicable to proceedings in courts of equity, and Peace adds: that the contrary principle appears to him more Qonsonant to reason and justice.

If the cas,e was of binding authority in this court, we would certainly confine its operation to the answer to the bill, and we should find ourselves authorised to make a distinction between an answer to a bill and an answer to interrogatories. In doing so, we should reconcile the case cited, with that in Ambler.

Whatever may be the rule, in courts which exercise their common law and equity jurisdiction, distinctly, Pothier gives us that which pre. vails in other tribunals.

"Observe," says he, "that he who would a"vail himself of the admissions which a party in " his answers to the interrogatories has made, " ought not to divide them, but to take them "united. If for example, not having any proof "of the loan which I pretend to have made to. "you of a certain sum of money; I cause you " to be examined on interrogatories, and in your " answer you confess the loan, but addthat you " have since returned the sum: I cannot avail myself of the admission you have made of the "Joan, and set aside what you have added, that " you returned the sum; but I must take your declaration entire. Therefore, if I wished your admission to prove the loan, I must admit it " also to prove the payment, without your being obliged to make any proof of it, unless I " should be able to prove that the payment could " not have been made, in the thne and place, in " which you have said it was made. 2 Pothier on Oblipations, 308, no. 827.

In weighing the evidence before us, it does not appear to me that there is the least improbability in the defendant's statement. It is true, we have not the ground of his knowledge, but witnesses seldom give that, till they are particularly interrogated. Perhaps we are not at liberty to set the testimony aside, unless the plaintiff contradicts it by the introduction of two witnesses, or of one, with corroborating circumstances. O. L. 1805, ch. 26.

Ir being proved that the plaintiff received The note of the defendant's brother for the amount of his claim, the presumption is, as the note is not produced, that the plaintiff has ieceiv-ed payment or negociated it. The Superior Court of the state of New-York has determined that if a negociablenote, or bill of exchange, be given for a simple contract debt, the party cannot recover on the original contract, unless he shews the note to be lost, or produces and cancels it, at the trial. 1 Johns. 34. Holmes vs. D'Camp. It seems to ibe just that, before we give judgment against the defendant, the note should be accounted for.

Lewis, J.

The reason of the law in permitting a party to resort to the conscience of his adversary for a diclosure of facts, is founded in necessity; and is intended to apply only in cases where the evidence sought for is wholly in the power of the party called upon to disclose. He is there made a witness, under certain restrictions, both for and against himself; and his answer, when in his own favour, ought to be allowed as evidence only where it discloses the evidence of facts exclusively confined to his own breast. But where the answer shews that the parts disclosed are susceptible of other proof and withiil the power ofthe party, his answer is not the best evidence, nor ought it to be taken ``as proof of the facts.

The defendant in his answer, acknowledges the receipt of the plaintiff's money, but further answers, in avoidance, that his, (the defendant's brother, in Charleston, S. C.) executed his note to the plaintiff or his agent, for the amount of monies received by the defendant, by means of which the demand became transferred and the defendant absolved from further liability. The plaintiff and the defendant's brother reside in Charleston. It does not appear that there has beerr any personal comniunication between either of them and the defendant, since the execution of the note. The defendant does not appear to have any positive knowledge of the fact disclosed in avoidance, for he does not know whether the note was executed to the plaintiff or his agent. This part of the answer, is at most, not stronger thaa hearsay testimony, and ought to be re jected.

Suit continue.