Opinion
(October Term, 1796.)
A confession in an answer to a bill in equity may be given in evidence against the defendant in an action by a third person. The giving of a note is no extinguishment of the prior cause of action; and where there is a count upon a note, as well as the general counts, a recovery may be had upon the general counts, although the note is alleged to be lost.
CASE, and the declaration contained a count upon a note of hand, a count for money lent, for work and labor done, and the other usual counts.
Mr. Williams, for the defendant, then objected that there was no evidence to support the general counts; and if there were, yet it having been proved that a note of hand was given, and is now lost, there could be no recovery on the general counts, for that note was a negotiable instrument, and may now be in the hands of some endorsee or holder, who may hereafter resort to the defendant, and will be entitled to recover notwithstanding the judgment the Court may now give. The holder will not be subject to any transactions which may take place between the original parties to the note. It is true, a court of equity, in a case thus circumstanced, would make a decree, but it would do so upon terms; it would require the plaintiff to give security that the note should not afterwards be demanded of the defendants, or if demanded, that he should be indemnified therefrom. This Court cannot impose any such terms; they must give an absolute unconditional judgment, if any. A note of hand may be given in evidence to support a count for money lent, but the proposition will not hold e converso. Proof of service done will not maintain a count upon a note. The note in the present case cannot be produced to support that count. Were it produced here, and filed amongst the Court papers, there would be no danger of its rising up hereafter to charge the defendant; and although, had there been no count upon a note, nor any evidence of a note, the confession contained in the answer might have been competent to the proof of the count for work and labor done; yet when the evidence shows a (422) note, it hinders a recovery upon this count also. My objection is that whilst the note exists there can be no recovery upon the consideration for which it was given, or the cause of it, lest the defendant might be twice charged.
Duffy, e contra: The giving of a note is no extinguishment of the prior cause of action, as a bond or other instrument under seal is. 1 Burr., 352. He said he was unprepared with authorities, not having expected the objection; but if the Court would direct a verdict for the plaintiff, subject to their opinion as to the matter of law, he would produce authorities some time in this term. This was assented to, and the verdict taken accordingly.
The Court having taken time to consider the case, and having seen the authorities produced by Mr. Duffy, viz., Ld. Ray., 1427, and 12 Mod., 309, gave judgment for the plaintiff, the defendant's counsel declining any further argument against these authorities.
Upon the trial, the plaintiff's counsel could not produce the note; they alleged it was lost; but they produced an answer in equity of the defendant to a bill brought against him by a third person, in which answer he stated a schedule of debts owing to him, and amongst others, he stated a debt of £ 90 due to the plaintiff.
Mr. Spiller objected that this bill and answer, being a suit between other parties, and in which the plaintiffs were no way concerned, the answer could not be read as evidence; it was evidence only between (421) those who were parties to the suit in equity.
Where a verdict is given in evidence, it is to the end that conclusions drawn by a former jury between the same parties, upon the same points, may have some weight with the present jury; and as it is a conclusion upon evidence subject to the cross-examination and contestation of the party against whom it is produced, it is allowed to be given in evidence against him; but a verdict between other parties cannot be given in evidence. However, the confessions of a defendant, though made in private conversation, and to persons no ways concerned in interest, may be given in evidence, and that is the principle the Court goes upon with respect to a confession in an answer. It is equally proper to receive evidence of a confession contained in an answer made upon oath as it is to receive evidence of a confession made in a less solemn manner.
The evidence was received.