
    
      Executors of John S. Lott v. Henry J. Macon.
    
    After the plaintiff had closed his testimony in reply, the defendant tvas not allowed to examine a new witness, by way of rejoinder, as to what plaintiff’s witness had said on a former trial of the same cause — it not appearing that the testimony proposed to be offered would in any manner rebut, or in any degree explain, vary, or contradict what the witness had said on the present trial.
    Where the jury, after they retired, had, without the knowledge of the Court or of defendant’s counsel, sent for certain books and papers which had been referred to by á witness in the cause, although nothing appeared in the transaction indicating any design of unfairness, or which the Court thought ought to affect their verdict in that particular case, yet they held that in no instance should the Sheriff or other person have any such intercourse with the jury, without the consent of the presiding Judge.
    
      Before Mr. Justice Withers, at Chester, Fall Term, 1847.
    This action was brought on a note, signed by defendant, in favor of the testator, Lott, on the 10th December, 1837, payable at one day, for $899 75, which was credited with $211 27 on the 13th April, 1838, and with $203 09 on the 22d October, 1840.
    Lott was a cotton merchant in Columbia, and dealt in his lifetime with the defendant in that character. -
    The defence rested upon a discount and plea of payment. The point of controversy was, whether there should be credited on the note the sum of $531 65, as of date 13th April, 1838, the same being part of net proceeds of 34 bales of defendant’s cotton, received by.Lott at the said date. The whole net proceeds were $1,056 48. The plaintiffs insisted that Lott had properly paid the amount in controversy to the keeper of the lunatic asylum in Columbia, for and on account of defendant, whose lunatic son was in that institution..
    It was not accurately established how long the lunatic had been in the asylum, though B. W. Macon, the defendant’s son, and examined for him, said that his lunatic brother had been in the asylum several years; that he carried him there for his father (the defendant); that he was there more than ■ three, and less than four years; that he was supported by his father before he was carried to the asylum, and since; that his father was responsible for his maintenance there; that in August, 1833, he had paid for his father $78 on that account, and $156 on the 20th December, 1834; that he thought the lunatic left the asylum in the fall of 1837; at any rate, he was not there in January, 1838; that Parker, the keeper of the asylum, had frequently applied to his father for payments before those stated were made, and afterwards; but he knew of no such application on account of the asylum since January 8, 1838: this being the date of a note from defendant to Lott, in which he told Lott he would be down the next week. On the margin of this note, the witness, B. W. Macon, wrote as follows (without signature): “ Tell Dr. Parker I will be down next week.”
    To prove the appropriation of the entire proceeds of the 34 bales of cotton, the plaintiffs examined, by commission, Chas. Swann, who had been clerk and book-keeper for Lott in 1837 and 1838. This witness referred to Lott’s books as illustrating his statement, by the page, and said, that as appeared in his hand-writing, $313 56 of the $1,056 48 were applied to the extinguishment of another note of defendant’s that Lott held: that, as appeared in his hand writing in the cash book, under date the 16th April, 1838, $531 65 were paid to Harrison, the keeper of the lunatic asylum, for the defendant, on account of his lunatic son there; the balance of the $1,056 48, proceeds of the 34 bales of cotton, to wit, $211 27, was entered as a credit on the note sued upon. This witness added, “ I think the payment of $531 65 was made by me to Harrison.” This witness said that the several items entered in the several books, showing the application of the $1,056 48, were in.his hand-writing.
    As a circumstance to show that probably the defendant knew of, and had authorized, the payment in question, to the asylum, certain facts stated by defendant’s son and witness, B. W. Macon, were urged, to wit: that as late as 22d October, 1840, after the alleged payment to the asylum, the witness, as the representative of his father, looked after the proceeds of twelve bales of cotton in Lott’s hands when he died, and out of the same paid a balance of account due to Lott, of $147 50, (dealing at that time with one Kinsler,) and the remainder of the proceeds of the twelve bales, the witness said was credited (and so the note showed) on the note now sued on, to wit: $203 09, of date 22d October, 1840. The argument was, that this transaction, being considerably posterior to the payment to the asylum, argued a knowledge of such payment, and an authority to pay it, on the part of defendant — -who, if he did not investigate affairs directly, did so indirectly, through his son. '
    The Presiding Judge says: This will enable me to refer to the 4th ground of appeal. I merely directed the attention of the jury to the matter just stated and referred to in the said ground, as one among the circumstances of the case to be considered as touching the question whether a previous knowledge and authority on the part of defendant, should be inferred for the appropriation of the money to the asylum, or whether the circumstance in question would warrant the be-. lief that such application, if originally unknown and made without express authority, was nevertheless ratified by the defendant. I certainly had no idea of expressing any opinion of my own to the jury as to the degree of weight that or any other circumstance deserved.
    The first ground of appeal is founded, I think, in mistake; I believe it will be found that the commissioners who examined Swann, certify in writing that each day-book and ledger, used upon the trial and referred to by Swann in his deposition, were before the witness on occasion of his examination, and so were identified as those to which he referred.
    As to the second ground: when the plaintiff had closed his testimony, in reply, the defendant’s counsel desired to put a witness on the stand to prove that Swann, when examined in open court on a former trial of this case, “ did not pretend that Lott had any written authority to pay to the lunatic asylum.” The court enquired if the counsel intended by this proceeding to attack Swann’s credibility, and being answered in the negative, refused the permission asked — because it was not understood how the defendant could have such right to rejoin to the plaintiff, except as to credibility or new matter, and the last was not pretended. Indeed, Swann did not, on this occasion, say any thing about express authority to Lott, written or otherwise; so there would not have been even a conflict of testimony.
    On the third ground, I have no remark to make. I was not called upon to decide any thing in regard to it.
    So I perceive nothing in the fifth ground which was not in the province of the jury. I told them, however, for the benefit of defendant, that whether he owed the asylum or not, Lott had no right to apply his money in that direction without his authority or consent. But it was a point worth considering, as, if he owed the asylum nothing, it was far less likely that he would authorize or acquiesce in the payment of his money to that establishment.
    As to the sixth ground, it involves only the entire question before the jury.
    Touching the seventh, I have only to remark that the foreman of the jury stated to me that the jury had sent for Lott’s books, which had been used ons the trial, and. referred to repeatedly by the witness, Swann.
    Of course, I make no observation on the last ground.
    The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds, to wit:
    1st. Because the evidence to prove the payment of $531 65, said to have been made by the plaintiffs’ testator to the asylum, for the defendant, was insufficient, there being no proof that the books of the original entries produced at the trial were before the commissioners who examined Charles .Swann, said commissioners having only certified that the ledgers were before them.
    2d. Because the court refused to permit the defendant, who had pleaded a discount, to offer any evidence in reply to the plaintiffs’ testimony, unless he would confine himself in such reply to such testimony as would attack the character of plaintiffs’ witnesses.
    3d. Because it was affirmed by the plaintiffs’ counsel, in their former grounds of appeal, and also in the commission issued in this case in October last, that the defendant had given a bond to the asylum for the support of his son, G. H. Macon, and still the court permitted the plaintiffs to;give parol evidence to establish defendant’s liability for that debt, without any notice having been given to defendant to produce the bond which was said to have been surrendered to defendant.
    4th. Because the court said to the jury that B. W. Macon, having'been present and taking a credit on the note for the sum of $211 27, and not then claiming a credit for the $531 65, the balance of the thirty-four bales cotton, was a strong circumstance against the defendant.
    
      5th. Because there was no legal proof of the amount of the debt due the asylum, and the sum paid was unreasonable for the time G. H. Macon was there, being $765 56; and if the defendant had been liable, the debt was not proved as it should have been had he been liable.
    6th. Because the payment made to the asylum should not have been allowed to the plaintiff.
    7th. Because the jury, after having been charged with the cause, sent for and received into their room certain books and papers, without the knowledge of the court and of defendant’s counsel.
    8th. Because the course pursued by the plaintiffs misled the defendant; and the verdict is contrary to law and evidence.
    A. W. Thomson, for the motion.
    The Court declined hearing argument on the other side.
   Withers, J.

delivered the opinion of the Court.

We shall not discuss the question whether a defendant, filing a discount, may not offer testimony to support it, in answer to that which the plaintiff adduces to attack such discount; for the present occasion does not necessarily give rise to that question. It can scarcely be said that the real point of contest was upon discount, for it turned rather upon payment or satisfaction. However that may be, the matter of the second ground of appeal may be disposed of by observing that there was nothing in the testimony proposed to be offered on the part of defendant, by way of rejoinder to the plaintiffs, that would have been in conflict, or would have served to explain or weaken, the evidence of the plaintiffs. They relied on facts proved by Swann to warrant an inference by the jury that Lott had properly paid to the asylum the sum in controversy — that is, by authority of defendant, to be implied from circumstances. In the deposition of Swann, he did not “ pretend that Lott had any written authority to pay .to the lunatic asylum.” The testimony proposed by defendant was, that when this same witness was examined, in person, on a former trial, he had not then pretended to any such written authority. It is not perceived how such testimony would in any manner rebut what the plaintiffs had adduced, or in any degree explain, vary, or contradict what their witness had said on the present trial— or how it would advance the cause of defendant. •

It may be proper, perhaps, to make a remark upon the subject matter of the 3d ground of appeal. This case had been once before tried between these parties, and the plaintiffs appealed. Among other grounds taken by their counsel, one alleged that after the trial, written evidence in behalf of plaintiffs, previously unknown, had been discovered, to wit, that a bond had been given by the defendant to the Regents of the Lunatic Asylum, upon which Lott had been defendant’s surety and had paid the debt. Now the complaint is, that this shall be taken as an acknowledgment by the plaintiffs that they had such a paper, and therefore that they .were bound to produce it, to prove defendant’s liability for the debt supposed to have been secured by it. It would, perhaps, be startling to hold that a party should be bound by every thing stated in grounds of appeal, as being admissions in the cause. But independent of this, if there really had been such a bond, the defendant must have known it — if he had satisfied the debt, then he had the bond, and might have produced it — or tracing it to the possession of plaintiffs, could have enforced its production by them. . One might suppose that the defendant could scarcely be anxious to see such a paper as that described in the plaintiff’s ground of appeal, for it must have utterly overthrown his defence — and when we remember that the plaintiffs had every motive to produce such a paper, if they could, it is out of the question to suppose that, if it existed, it was within their power. They sued upon a note, and for money paid, laid out, and expended; and therefore it cannot, of course, be pretended that the paper in question constituted any element in their cause. It would really seem that, considering the necessary effect of the production of such a paper, the surprise which the defendant alleges he endured because it was not forthcoming, should have been rather agreeable than otherwise.

No points proper for adjudication here seem to arise out of the 4th, 5th and 6th grounds of appeal.

The 7th complains that the jury, after they retired, sent for certain books and papers, without the knowledge of the Court or of defendant’s counsel. “ The fact in regard to this matter, as stated in the report, is, that the jury sent the Sheriff for and obtained the books kept by Lott, in his lifetime, to many items in which the witness Swann had referred. This was done at night, after the adjournment of the Court, it having been agreed that the verdict should be received the next day. Although nothing is seen in the transaction stated which ought to affect the verdict in this particular case, or wears the appearance of any design of unfairness, yet this Court desires it to be understood that in no instance should the Sheriff or. other person have any such intercourse with the jury as occurred in this instance, without leave of the presiding Judge.

Upon the whole, we see nothing that warrants us in disturbing the verdict, and the motion is therefore dismissed.

The whole Court concurred.

Motion dismissed.  