Craig v. Craig , 3 Rawle 472 ( 1832 )

The opinion of the court was delivered by

Gibson, C. J.

That the production of the debtor’s own bond is evidence of satisfaction, cannot be controverted, because his possession of it is consistent with no other presumption. And it is evidence of satisfaction by the debtor himself, because in the usual course of transactions men pay no debts but their own. All this is strictly predicable oí a security payable by but one. But the production of a bond by one of several obligors is no evidence that he has paid the whole, because being incapable of manual possession by all, the custody of it by any one in particular is either accidental or dependant on a variety of circumstances. In some cases it may possibly be committed to the particular obligor who has paid it, as evidence against the rest; but such is not the common course, nor does it, from its frequency, give rise to a presumption. It just as frequently happens that the bond is delivered up, in the absence of the rest who have paid their proportion, to him who extinguishes the debt by payment of the residue; so that no presumption arises more favourable to the one state of things than to the other. If the original joint indebtedness had been disputed, the production of the bond would have been an indispensable part of the plaintiff’s case: but as that was admitted, it is impossible not to see that the object of the evidence was to prove .that the whole debt had been paid by the plaintiff; to do which the naked fact that he was in possession of the bond, was plainly incompetent.

Error is assigned also in the admission of declarations by the obligee. It is answered that these were competent because they were made, not only in the presence of the defendant, but after he had consented to be bound by whatever the obligee should say. A party is to be affected by the assertion of a third person only on the ground of assent either tacit or express, to the truth of the fact asserted. But where it appears from the offer of the party proposing the evidence the other was entirely ignorant of the state of the fact, much more when he expressly denied its existence, the foundation of its admissibility fails. In such a case the whole is to be rejected. But where the degree of his knowledge or assent is uncertain, the court may undoubtedly refer the decision of the preliminary facts to the jury by putting the whole to them with suitable instructions. The application of this principle to the circumstances of the present case, might be attended with difficulty ; haply we are relieved from it by the legal effect of one of those circumstances, which, on another ground, seems to be decisive. It was testified by two witnesses that the defendant had consented to submit the disputed fact to the dictation of the obligee, whose consequent declarations in the presence of the parties convened' with a view to an amicable adjustment, are the subject of this bill of exceptions. A party may undoubtedly assent beforehand to the truth of whatever another shall declare, and though a declaration on the foot of such assent be not conclusive of the fact, it is clearly competent to go to a jury. In particular circumstances the response of a third person to whom the parties had appealed, has even been deemed conclusive. Starkie Ev. part IV. 42. The application of this principle to the case before us, is obvious and direct. To one witness the defendant professed an entire willingness to abide by the decision of the obligee; and to another his readiness to contribute his share if the obligee would say the whole had been paid by the plaintiff! After that, can we doubt the competency of the answer thus invoked I As against himself, a party may undoubtedly give to the representation of another, a credit which it would not otherwise have; as was done in Maclay’s Lessee v. Work, 10 Serg. & Rawle, 194. It is no objection here, that the obligee might have been called to testify under the sanction of an oath. By adopting his answer beforehand, the defendant had made it his own; and though it was open to proof of malafides or mistake, it lay on him to furnish the evidence necessary to the purposes of contradiction or explanation. It was the business of him, therefore, and not of the plaintiff to produce the obligee. In an action not founded on a special promise to pay whatever a third person shall pronounce to be due, I am unprepared to say the representation of such third person is conclusive; but as evidence of the fact in dispute, it is undoubtedly competent to go to the jury. The naked fact of possession of the bond was however, improperly admitted: and the judgment is reversed on that ground.

Huston, J.

If two are jointly indebted by bond, and one pays all, he may have assumpsit against the other for his proportion — this generally — but if two sons are bound to their father in a bond payable at a distant period, and that bond is expressly payable to the father only, and to no other person, and one of the sons pays this bond several years before it becomes due, it is not so clear that he can in all cases and in all events recover from his brother — evidently the bond in question was not intended to be enforced unless by the father. I would say, if he did not collect it, or at least sue on it, no one else could.

The declarations of the father, in my opinion, were not evidence, because, although Thomas said he would submit to be governed by what his father said, yet Charles never agreed to be so bound; and because the father never was told that the sons had agreed to submit their dispute to his statement of facts. If it is possible that any suit shall be settled in such way, it must be where both agree to be bound; and where the person whose statement is to decide the matter, is apprised of the agreement, and of the importance attached to his statement. It never can be that expressions used in a casual conversation, or in a dispute with a third person, or one of the parties, can come within the meaning of the agreement. I do not much like the cases cited on this subject; to make them at all consistent with reason, the person whose words are to settle a suit should be apprised of the necessity of stating the truth, the whole truth and nothing but the truth, exactly as if giving testimony on oath.

The declarations of the father that he had received satisfaction, are according to our decisions,-evidence against the father, or those claiming under him, because against the father’s interest; but the declarations of the father many years after the bonds were given up as to who paid them, are not evidence; they are not within the reason of the rule; it does not affect the father’s interest whether they were paid by one son or the other; he has no more interest in a contest between his sons than a stranger would have, who stood by and saw the money paid; and in my opinion, his declarations are no more evidence, than would be those of such stranger.

Judgment reversed and a venire facias de novo awarded.