
    Kneeland Townsend and Elihu Townsend and others, against Ward Atwater and Henry Daggett, jun.
    
      A. and if. being joint owners of a schooner, agreed to furnish a cargo, and send her on a foreign voyage. A. made an arrangement with C., a merchant in JYew-York) by which C. was to give his notes and acceptances for such part of the cargo as should be purchased there ; and A. agreed to indemnify him on account of such notes and acceptances, and to furnish funds for the payment thereof, as they should become due. A part of the cargo was purchased of I)., in JYew-York, for which C. in pursuance of the agreement, gave his note payable in six months. Before the time of payment, C, became insolvent, and never paid any part of the note. Under these circumstances, A was factorized as the debtor of C. .- Held, that such contract was a contract of indemnity, merely, and that A, was not the debtor of C.
    
    On the trial of the scire-facias, in such case, the plaintiff offered to prove by the testimony of the clerk of C., that on the execution and delivery of the note to JO. for the price of the goods, I). executed a writing or receipt to C., whereby he acknowledged that the note was received in full payment of the goods ; such writing being in the possession of C.’s assignees, in JVew-York, and no measures having been taken to produce it: Held, that such evidence was inadmissible.
    MOTION for a new trial.
    This was a. scire facias against the defendants, as garnishees of K, and A. Townsend of the city of New-York, absent debtors.
    On the trial before the Superior Court, it was claimed by the plaint ill's, that the defendants were indebted to E. and A. Townsend, on account of a certain negotiable promissory note, executed and deihered at Xnv-York, on die ilth day of Au ansi, 1010, hy E. and A, Townsend, to one E. (r. Bartsch,for 1003 doiiars, payable in six months from its date. The cir '..urnstances under which ihe note was given, were these : Certain persons and mercantile houses, in Ncw-Havni, and in the city of Ncm-York, were joint owners of the schooner Grace-Ann Green, in the following proportions, vár. John Wheaton, one-fourth ; Atwater anil Daggett, the defendants, five-sixteenths ; Gad Peek, one-eighth ; Norton and Bush. one-eighth; Elnalkan Atwater, one-sixteenth ; and Daniil Green, one-eighth. Ait the owners resided in Nen-Uavcn. except Wheaton, who resided in New-York. In the month of August, 1810, the owners of the schooner agreed to fur nish a cargo, and send her on a voyage to the Mediterranean, and that each one should be concerned in the voyage, in proportion to his interest in the vessel. The defendants immediately, thereupon, proceeded to Nen-York, for the purpose of procuring that part of the cargo to be furnished by the New-Haven owners, and there agreed with E. and A. Townsend, who were, at this time, in good credit, that they should give their notes and acceptances for such part of the cargo as should be purchased in Nen-York, on account of the New-Haven owners ; and that they should be indemnified from all loss or damage which might accrue to them, on account of such notes and acceptances, and that funds should be remitted to them for the payment thereof, when the same should become due. In pursuance of this arrangement, a certain quantity of spices was purchased of Bartseh, for which, fj. and A. Townsend gave the note before mentioned.
    It was admitted, that the spices were purchased of Bartseh, in the city of Nen-York, as a part of the cargo to be furnished ny the New-Haven owners, and were, on their account, Shipped on board of the schooner. It was also admitted, that by the laws of the state of Nen-York, the note executed by B.& A. Townsend to Bartseh, was a simple contract, and not a specialty. And it was agreed, that on the 4th day of January, 1811, and prior to the time when the note to Bartseh became due and payable, E. & A. Townsend became utterly insolvent, and had never paid the note, or any part of it.
    It was claimed by the defendants to have been proved on ,hc triatf that in purchasing the spices of Bartseh, and in entering into the agreement with E. Ac A. Townsend, as above stated, they acted merely as the agents of tiie New-Haven owners. They contended, therefore, that if any claim arose from the traiisaeliou, in favour of E. k, A. Townsend, it could have been only enforced, by a suit against all the New-Haven owners; and that they were not individually liable. They also claimed, even on the supposition, that they were themselves personally responsible to E. & A. Townsend, and acted not as (he agents of the Nun-Haven owners, in making the arrangement witli them, still, that they were not the agents and debtors of the Townsends, at the time when the copies were left with them in service: Because, in the first place, the contract with the Townsends, was merely a contract of indemnity; and secondly, the Townsends became bankrupts prior to the time when the note became due, and have never paid any part of it; and that, therefore, no injury had been sustained by them, and consequently, no indebtedness liad accrued against the defendants.
    It was claimed, on the part of the plaintiffs, to have been proved, that the defendants, by express contract, bound themselves personally, and exclusively' of the other owners, to indemnify E. and A. Townsend, on account of such notes and acceptances as they should give in pursuance of the agreement before mentioned, and to provide funds for the payment thereof, when they should become due ; and that they were to resort to the New-Haven owners for their indemnity'.
    Upon this point in the case, the court instructed the jury, that although they should find, that the contract to indemnify E. and A. Townsend, and to furnish them with funds to pay the notes and acceptances to be given in pursuance of such contract, was made between them, and the defendants, as the agents of the New-Haven owners, yet, in such case, the defendants were not liable, as the action should have been brought against all the New-Haven owners : And if, however, they should find, that such contract was made with She defendants individually', and not with the New-Haven owners, still, as it was admitted by the parties, that such contact was merely an engagement to place funds in %• hands oí E. and A. Townsend, from time to time, as such notes and acceptances should become due, it was substantially a contract of indemnity ; and as E. and A. Townsend became insolvent on the 4th day of January, 1811, and the note given to Barlsch, did not become payable until the 14th day of February nest following, and no part of such note having been paid, the defendants never became the debtors of E. and A. Townsend; and therefore, and a verdict must be found for the defendants.
    It was proved on the trial, that at the time when the copies were left in service, and also, at the time when E. and A. Townsend became insolvent, they were indebted to EAnathan Atwater, one of the Ncw-Haven owners, by note, to a greater amount than the sum claimed by the plaintiffs, to he due from the defendants to E. & A. Townsend; which, last mentioned note became due and payable, on the 4th day of January, 1811, and remained wholly unpaid.
    It was also proved, that on a settlement of the accounts between the owners of the schooner, for the projected voyage, the sum of 1270 dollars would be due from Ehiathan Atwater, as his proportion of the outfits. Under such circumstances, it was claimed by the defendants, that, in equity, the debt due to Elnathan Atwater, might be set off against the debt claimed to be due from them to E. and A. Townsend.
    
    It was also claimed by the defendants, that as the spices were purchased of Barlsch, for the cargo of the schooner, and had been received as such, by the owners, and the price of them not having been paid, the defendants, together with the rest of the owners, were liable to Barlsch for the amount thereof; and that, therefore, neilher in law or equity, could the value of the spices be drawn out of their hands, either for the benefit of E. & A. Townsend, or their creditors.
    In the course of the trial, the plaintiffs offered to prove, by the testimony of E. & A. Townsend's clerk, that at the time when the note was executed for the spices, Barlsch gave to them a writing or receipt, wherein it was slated, that the note was received in full payment thereof. This evidence was claimed to be admissible, on the ground, that the writing was not within (he power of the plaintiffs it having been, by ⅛ A. Townsend, after (heir baukmptry, delivered over to flieir assignees in Nov-York^ná being then In (heir possession, jyo me,lsl(re8j however, were taken to produce the writing before the court. The defendants objected to this evidence, on the ground, that the writing itself ought to be produced ; and that its contents could not. he [¡roved by parol; especially, as no attempt had been made to produce it. The court adjudged the evidence to he inadmi: slide.
    The jury, under the direction of the court, returned their verdict for the defendants. The plaintiffs moved for a new trial, on the ground of a misdirection, and also, ori the ground, that the court erred in rejecting the evidence offered by them on the trial. The questions arising upon this motion, were reserved for the consideration and advice of the nine Judges.
    
      Bristol, in support of the motion.
    1. The evidence offered by the plaintiffs, to shew the contents and purport of the receipt given by Bartsch, whereby he acknowledged that the note of E. & A. Townsend was received in payment for the goods purchased of him, was proper, and ought to have been admitted. No question is made as to th|lrelevancy of this evidence. It is contended, that that this evidence was admissible, on the general ground, that it was not in the power of the plaintiffs to produce the writing. This was the best evidence within the power of the party. The writing was in a foreign jurisdiction ; and the court could not compel its production. The court did not possess the power to issue a subpoena duces tecum to the assignees of the Townsends ; and this circumstance is, in all cases, considered as a sufficient excuse for the non-production of a writing. If there had been a subscribing witness to this transaction, residing in New-York, the party would net be obliged to produce him in court, but might prove the contents of the writing by other witnesses. The power of the party, in this respect, is that only which the court can enforce. Swift's Ev. 33. Peake's Ev. 100. Prince v. Blackburn, 2 East's Rep. 250. Adam v. Kcrs, l Bos. & Pul. Rep. 360. Coghlan v. Williamson, Doug. Rep. 83. Earnest. 
      
      Trompowsky, 7 Term Rip. 2fio. The law of Nar-Yor!;, relating to the taking of depositions out of court, does not extend so far as to compel the production of an original paper.
    But besides, the assignees of E. & A, Townsend, could not be compelled to produce the writing, even if they were within the jurisdiction of this court. The production of this writing, would go to destroy a right which they had, as assignees. The judgment, in this case, would be a bar to an action in favour of the assignees, against the present defendants. This doctrine rests on the general principle, that no one shall be compelled to testify against his own rights. Peake's Ev. 191. Swift's Ev. 41. 2 'Esp. Dig. 402, 511.(723, 782. Gould's edit.) Miles & al. v. Dawson» 1 'Esp. Rep. 405. Bateson. v. Hartsink & al. 4 'Esp. Rep. 43. Amey v. Long, 9 East’s Rep. ¡73. Rex v, Woburn, 10 East's Rep. 397, 408.
    
    2. The defendants were personally and absolutely bound to pay lo E. & A. Townsend the amount of their note to Bartsch. They were not debtors of Bartsch, and payment to him, would not have discharged them from their liability to E. & A. Townsend. Lames' Plead, in Assump. 35.
    Further, the charge was incorrect. It ought to have been submitted to the jury, as a matter of fact, whether the goods purchased of Bartsch, were not taken up on the credit of E. & A. Townsend; and whether their note was not accepted by him in payment.
    Again, it is claimed by the defendants, that the debt due to Elnalhan Atwater, may be set off against the debt supposed to be due to E. & J. Townsend. Elnalhan Atwater is not a party to this suit. No set-off, therefore, can be made. But, suppose this set-off could be made, still, this does not furnish a reason why a new trial should not be granted. The de-ci;ion of this question can in no way affect the grounds of the present motion.
    
      Ihiugctt and. flT. Smith, contra.
    I. The evidence offered by the plaintiffs was properly rejected. There is no exception to the rule, that before evidence of the contents of a writing can be admitted, the loa* of such writing, must be proved. It must, at. least, appear, that due diligence has been used to procure it. !t could have made no difference, if the evidence had been admitted. A correct decision of the other points in this case, would have been decisive of it; and even if the court erred in rejecting the evidence, still, a new trial cannot be granted. But, it is denied, that any precedent can be found, which will sustain, the principle contended for, in behalf of the plaintiff?. No adjudged case has been produced, where it has been held, that if a writing is out of the jurisdiction of the court, evidence of its contents, may be admitted. The production of the writing might have been compelled under the laws of the state of Ncw-York. The cases cited in -uipport of the doctrine contended for on the other side, do not apply to the case under consideration. These cases relate only to the question, whether proof of the hand-writing of a subscribing witness, out of the jurisdiction of the court, may be admitted. This is a very different thing from proof of the content? of a writing. In the cases cited, the writing is supposed to have been before the court, and the only question was, as to the execution; but in the principal case, the writing was not produced, and without assigning any sufficient reason, for the non-production, its contents were attempted to be proved, by the testimony of a witness, who was present at its execution.
    The argument in favour of admitting the evidence, derived from the consideration, that the production of the writing would impair the rights of the assignees of E. & A. Townsend, is without foundation. This argument, if it proves any thing, proves too much. What difference could it make, in relation to the rights of the assignees, whether the writing were produced in court, by process of subptena duces tecum, or whether a subscribing witness should he permitted to testify as to its contents ? The truth is, the introduction of any kind of evidence in relation to the writing, cannot affect or impair the rights of the assignees.
    2. The defendants were never indebted to E. & A. Townsend. There was no liability upon them, except to provide funds for the payment of the note to Bartsch. And this liability depended entirely upon the fact of the payment of she note by the Townstnds. The contract with them, was merely a contract of indemnity, and they could not resort to the defendants, until they had, in fact, paid the note.
    But besides, the defendants were indebted to Barlsch for the amount of the goods purchased. Tooke v. Hollingworth, 5 Term R'p. 21.a. Scotl v. Surman, IVilies’ Rep. 400. Ex parte Dumas, 1 Aik. Rip. 2:12. 2 Sdw. N. I. 829, 830.
    It is said, that Barlsch could not recover the value of the goods sold, because he received llm note of E & A. Townsend. This principle is not supported by the authorities on this subject. So far from this, is it, that the contrary princi-pio is fully established. Did Barlsch, by taking the note, thereby give up his claim on the defendants ? The cases cited above, shew that this cannot be so. A note was taken in the case reported in Wittes. The rule on this subject, is this: If A. purchase goods, and give a bill for the amount of the purchase money, it is not payment; but if the bill has time to run, no suit can be brought for the original demand, until the time has expired. Then the original cause of action is revived. The giving of a note, is no discharge of the claim for the price of the goods. Stedman v. Gooch, 1 ’Esp. Rep. 5. licbden v. Hartsink et al. 4 ’Esp. Rep. 46. Brooke & al. v. While, 1 New. Rip. 330. 8 Johns. Rep. 389.
    But further, the defendants claim the right to set-off the debt due to Elnathan Atwater against the debt supposed to be due E. & A. Townsend,. The court is authorized to make every equitable allowance in a suit like the present. The court, in this respect, is vested with the powers of a court of chancery. E.& A. Townsend are indebted to Elnathan At-water, to a greater amount than the debt due to Barlsch. Elnathan Atwater was one of the owners of the Grace-Ann Green, The purchase of the goods from Barlsch, was made for the benefit of all the owners. Elnathan Atwater, being one of them, might have been sued with the others, and the whole amount of the debt collected from him. It has been the practice, both in courts of law and chancery, to suffer a set-off between persons, not parties to the suit. The princi-pies now contended for, are illustrated and confirmed, by numerous decisions of tbe courts of Great-Jiñlain. And in all cases, where it may be proper to adopt these principles, the court will have regard to the fund, which may be either benefit fed or injured, by the application of them. Ex parte Quin ton, 3 Ves. jun. 248. Mitchell v. Oldfield, 4 Term Rep. 123. Slipper v. Stidstone, 5 Term Rep. 493. French v. Andrade, 6 Term Rep. 582. Cooper’s B. L. 290 to 305. O’Connor v. Murphy, 1 H. Black. Rep. 657. Dennie v. Elliott, 2 JET. Black. Rep. 587.
   Baldwin, J.

This motion presents two subjects to our consideration : the rejection of the evidence, and the correctness of the charge.

It is a general rule of evidence, that the contents of a written instrument, can never be proved by parol, until the paper is proved to be lost; or until it shall be satisfactorily shewn to the court, that it cannot, by due diligence, be obtained. In this case, it is not pretended, that any attempt has been made to procure the document. Reliance is placed on these circumstances alone, that it is out of the jurisdiction of the court, and in the hands of the assignees. Neither of these causes appears to me to be sufficient. There is nothing in the nature of the instrument, or of the claim, which could protect the assignees, if here, in withholding it; and it would be an alarming doctrine, to admit, as a thing of course, proof of the contents of every paper which may be beyond the jurisdiction of the court. Such papers can generally be easily obtained, and proof of their contents is never admitted, but from necessity. This necessity is not to be presumed, merely from the fact, that the paper is out of the jurisdiction of the court. There must be further proof; and the court must be satisfied that the paper cannot be produced. I am, therefore, of opinion, that the court, with great propriety, rejected parol proof of its contents.

But however this may be, the rejection of the evidence cannot be cause for a new trial, if the charge to .the jury was correct; for, if admitted, the result would still be the same.

Both parties concede, that the object of the contract, was, '.hat funds should be placed iu the hands of E. & A. Town-¿end, to meet their engagements ; and that they should be indemnified. Whether the defendants contracted in their individual capacity, or as agents for the New-Sawn owners, was a question of fact, depending upon the evidence, and was very properly left to the jury. To this part of the charge, I have heard no objection. If found for the defendants, it puts an end to the suit, for want of proper parties : If for the plaintiffs, then the only important question would arise, that is, whether the facts conceded by the parties, warranted the inference, that the contract was a contract of indemnity, merely, and not an indebtedness. This the court considered purely a question of law, and as such have decided it.

The transaction itself, and the nature of the contract, as agreed, shew', that the parties did not consider the defendants indebted to E. & A, Townsend, at the time they gave their note to Barlsch. Had they so considered it, they would, probably, have taken, at the same time, a note of equal amount from the-defendants to themselves. It-was in fact a mere loan of the note of E. & A. Townsend, for the accommodation of the defendants; a transaction not unusual in the course of mercantile dealings, and would have implied an indemnity, if no agreement had been expressed. But in this instance, there was an express undertaking, on the part of (he defendants, to furnish funds in season to meet the payment, and to indemnify. This, so far from implying, that payment was to be made to them at all events, excludes the idea of indebtedness, and shews, that E. & A. Townsend relied on the special contract to furnish funds, and save them harmless. E. & A. Townsend could not have maintained a suit against due defendants, immediately after executing their note to Barlseh; nor could they have done so, at the commencement of this suit. The liability of the defendants depended on future events. If the defendants had paid the note to Barlseh, instead of remitting funds to E. & A. Townsend, this, surely, would have cut off all claim of theirs against the defendants ; or, if from any other circumstance, E. & A, Townsend had been discharged from the payment of their note, they could have no claim on the defendants. They can never maintain a suit against them, until they shall have paid the note, or been in some way damnified on account of it. As it is agreed, that they have neither paid the debt, nor been injured, and that long before the note to Bartsch fell due, they had become, and ever since have been, bankrupts, the defendants, of course, have never become the debtors of E. & A. Townsend, nor are they now in any way responsible to them, even in damages.

Whether the defendants could retain this money, upon the equitable claim of Elnathan Atwater; or because they would be compelled at law or in equity, to pay it to Bartsch, it seems unnecessary to decide, as 1 am clearly of opinion, that from the facts conceded, the defendants were not indebted to E. & A. Townsend, at the time the copies were left in service with them, and that a new trial ought not to be granted.

In this opinion, the other Judges severally concurred.

New trial not to be granted.  