Smith v. Walker

PENDLETON, President.

Whether parol evidence of a fact not contained in a bond, can be admitted at law in a suit on that bond, is a question not to be stirred at this time of day, notwithstanding the ingenious distinction of the counsel .between a contract and the evidence of a contract; I mean as a general question.

Whether it may be done in paper money bonds under the last section of the scaling act, is a question as difficult as it is important; and was it necessary to decide it, the Court would have referred it to a fuller Court, especially as we know there is á diversity of sentiment among the Judges on the question.

But we unite in opinion that it is not only unnecessary, but improper, to enter into the discussion, in this suit.

The bond in suit is a specie bond, on which Robert Walker is sued in his own right; and the other bond is given by Edward Walker his testator only; the payments are all in specie, except 971. 9s. 3d. paid in 1776 and 1777 ; which can’t be applied to the second bond, being pri- *34 or to its date, but are to stand at their nominal amount by t^le express words of the scaling act.

The question is, whether the second bond be specie or paper ? A question which was collaterally brought on, for the sake of applying to that, the payments which the. defendant claimed, as discharging his bond. But, if it was proved by evidence which don’t appear, that the debt sued for was paid, the evidence offered was immaterial; and the Court were right not to suffer the jury to be embarrassed or inveigled by it.

That we are to take this to have been so proved upon the bill of exceptions, we have no doubt. ' After stating John Williams’ evidence, and the use intended to be made of it, it goes on “and this being all the evidence in the same, except what proved the bond on which this suit was brought to be paid, and except Fisher’s deposition, the counsel excepted, ‘&c. ” I mentioned this passage to the counsel ; he said it was an inaccuracy which had struck him, and did not attempt an explanation of it; although he must have been sensible, that they were too important to have been inserted cúrrente calamo without a meaning. They could not apply to Williams’ proof, since to that they are stated as an exception : nor to Fisher’s deposition, because that is specially excepted ; they, therefore, can only mean what they import, namely, that other satisfactory proof was made that this debt was paid.

On that ground, the Court affirm the judgment of the District Court.

If Mr. Smith chooses to commence a suit on the second bond, the question on the scaling act will be brought on ; and if he is let into the proof, it is obvious that many other circumstances will be proper subjects of enquiry, besides those mentioned by this witness, in order to an equitable decision. I cannot avoid saying, however, that this creditor seems to have less reason to complain of injury from paper money, than any which has appeared before the Court.

As to a bar by the endorsement on the second bond, Fisher’s deposition recorded, states the whole payments ; and on a suit on this bond, it will be a proper enquiry whether by those both debts are paid.

Judgment affirmed.