
    John H. Cole, use of Elijah Gibson, vs. Joel Hundley.
    A bill filed by a party against whom a judgment had been rendered, disclosing facts which would have constituted a good defence to the suit at law, and alleging as a reason why the defence was not made at law, that the complainant was dangerously sick during the term of the court at which judgment was rendered against him, but not averring that he had employed any attorney at the return term of the action, which was antecedent to the term at which the judgment was rendered, nor that he had subpoenas issued for any witnesses, shows no sufficient reason why the party failed to make his de-fence at law, and consequently no grounds for equitable relief.
    C. for the use of G., sued J. C. and H. on a note in favor of C. for $ 327 27¿, to be cancelled by a cotton bond ; H. permitted judgment to be taken against him by default, and then filed a bill, averring that the note was to be paid in the notes of the Bank of Madison County, which had been tendered by J. C., the principal in the note, and who was still ready and willing to pay in those notes: Held, that the contract set out in the bill was an entirely different one from that sued on, and the bill showed no grounds for relief.
    Parol evidence is not admissible to vary a promissory note, so as to change its terms and make it a different contract.
    On appeal from the chancery side of the circuit court of Kem-per county; Hon. Hendley S. Bennett, judge.
    Joel Hundley filed his bill on the chancery side of the circuit court of Kemper county, alleging that on the 28th day of January, 1839, he became the surety of John Connelly, on a promissory note of that date, to John H. Cole, for $327 37|, due at date for the amount thereof, in the notes of the Bank of Madison County ; that after the making of the note, complainant was informed Connelly, the principal, offered to pay it to Cole, in the notes of the Bank of Madison County, and tendered him the mÉney; and that Connelly then was, and had always been ready and willing to pay the note in the notes of the bank; that Cole refused to receive the notes of the bank when tendered to him, though not on the ground that they were bank notes. The bill charged that after the tender and refusal of the notes of the Bank of Madison County, viz., on the 22d day of April, 1840, Cole, for the use of Elijah Gibson, instituted suit in the circuit court of Kemper county, against Connelly and himself on their note; that no court was held on the third Monday after the fourth Monday of April, 1840, the term to which the suit was brought; that on the 22d day of July, 1840, at a special term of the court, the suit was discontinued as to Connelly, and a judgment entered against complainant by default, for $367 65, and costs of suit. The bill further charged, that at the time of holding the special term in July, 1840, and for many days prior thereto, the complainant was dangerously sick, and was neither able to attend court in person, nor to give any direction to any other person in relation to the defence of said suit. That an execution had been issued on the judgment against him, and placed in the hands of the sheriff of Clark county, who was endeavoring to coerce the payment thereof. Camplainant averred that he had been informed John H. Cole was a stockholder in the Bank of Madison County; that he had removed out of this state, and there was then no person residing in this state solvent and responsible for the issues of the bank ; that Connelly was wholly insolvent, and if complainant was compelled to pay the judgment rendered against him, it would be a total loss to him. The prayer was for a perpetual injunction against the judgment, and for general relief. Upon this bill an injunction was g'ranted by the Hon. Hendley S. Bennett.
    Gibson answered, admitting the institution of the suit, and the recovery of the judgment, but denying that Hundley was merely surety of Connelly on the note sued on ; and also denying every other material averment of the bill.
    The bill was taken for confessed against John H. Cole. The complainant, on the final hearing, read sundry depositions.
    Silas M. Fain proved that he was present in De Kalb, where a conversation took place about the matter in controversy between the parties, from which he understood that Connelly was indebted to Hundley; and Cole agreed to loan Connelly the money to pay the debt, if Hundley would become the surety of Connelly for the money loaned. Connelly, complainant and Cole then went into a store, where a note was given to Cole by Hundley and Connelly, for $327 37§. Hundley remarked at the time that they were to take the note up with a cotton bond, and Cole replied certainly. Witness understood the money loaned was in the notes of the Bank of Madison county, and he saw some change pass in that currency. He understood the cotton bond was to be given in a few days. He understood also that Hundley was only security for Connelly, though Hundley was to have the money borrowed of Cole. He believed the notes of the Bank of Madison county were received in stores at that time in payment of debts. Hundley, at the time the judgment was rendered, was reported to be sick, but witness did not see him.
    The other witnesses proved in substance, that in 1839 the notes of the Bank of Madison county were generally received and circulated as money; that Cole represented himself to be a stockholder in, and acted as the agent of the bank ; and that in the neighborhood Gibson was reported to be the agent of Cole. That at the time the judgment was rendered, Hundley was very sick in bed, and not expected to live. The note or due bill upon which the judgment was rendered, was in these words, viz.: —
    “Due John H. Cole three hundred and twenty-seven dollars and thirty-seven and a half cents, to be cancelled with a cotton bond. This January 28, 1839. John Conneli-y,
    J. Hundley.”
    Upon the foregoing state of pleadings and evidence, the cause was submitted on final hearing, and on the 26th day of April, 1842, a final decree was entered, rendering the injunction perpetual. From which decree the defendant, Gibson, appealed to this court.
    
      A. C. Baine, for appellants.
    In the first place it is to be remarked in this case, that all the evidence tending to prove that Gibson was the agent of Cole, is wholly without the pleadings, and can have no bearing on the cause. 9 Pet. 405, 483 ; 2 -John. C. R. 354 ; 3 S. & M. 79.
    Keeping this in view, we will proceed to the investigation of the cause. I do not see how the bill can be sustained on its face. Its gravamen is, that Connelly borrowed the money of Cole ; that Hundley went his security; that the money borrowed was “Madison county ”; that it was once tendered; and that Cole was the agent of the Madison County Bank, and a stockholder, and if he cannot set off the amount of the judgment it will be a loss and at the time of the trial he was dangerously sick. If all this had been proved, I do not think a case made out for a perpetual injunction. But only two points are sustained by the proof, and these have no tendency to prove a case of relief. The first is, that Cole was agent and stockholder (perhaps) of the bank; the second is, that complainant was sick at the time of the trial. There is no proof, nor is it charged in the bill, that this note had any connection with Cole’s agency with the bank, or anything to do with his connection with it as a stockholder. This was necessary, as a primary step to the relief, at all events. The facts, however, show a most singular state of things, when carefully scrutinized. For the proof shows that the complainant is seeking nothing more or less, than to shift a bad debt of his own on to the defendant. The first witness says that Connelly was owing Hundley, and that Cole agreed to loan him the money to pay it, if Hundley would go his security ; and that Hundley got the money for the note. Now if the whole case makes out anything else than what I have said, I cannot perceive it. Instead of losing his own bad debt, he wants Gibson to lose it. For there is no pretence in the bill, or proof, that the money was not used. Besides, this is an attempt to contradict the face of the note, when no charge of fraud is made as to its terms. This, I need not argue, cannot be done. The bill says the note was to be discharged in the Madison county money; the note says, to be discharged in a cotton bond. A contract cannot be partly in writing and partly in parol. 1 John. C. R. 283; 1 Yerm. R. 619; 14 John. R. 32. A written contract merges all antecedent proposals and negotiations. 1 Story’s Eq. 173 ; 14 John. R. IS.
    
    But another fatal objection to the case is, that there is no proof of a continuing or constant readiness to pay. ■ The money was not brought into court as it should have been. Nor does there appear ever to have been an offer to pay but once to Marshall, and it is not shown who was then the owner of the note. But unless it is proved, which will not be contended, I presume, that the note was the bank’s, a tender in “ Madison county,” would have been wholly nugatory at any time. All the proof tends to the contrary. For it is expressly proved, that Cole said all the notes and bonds belonging to the bank were payable to it, to prevent his ever acquiring any control over them. So that even his manner of business prevents the suspicion even that this note was the property of the bank.
    But there is still another prominent objection to the very foundation of the case. There is no showing that the case was lost at law in consequence of the alleged sickness. He does not show that he had witnesses by whom he could have established it, nor does he allege he could have obtained it by discovery. Sickness, however, I-apprehend, is no excuse for not defending at law. Public business is not. See 1 John. C. R. 320.
    At the very best for complainant, the injunction should not have been perpetuated, but a new trial granted.
    
      William and William G. Thompson, on the same side.
    There is no proof in the cause that Connelly and Hundley did not receive from Cole a full and valid consideration for their note. There is no proof that any part of the sum expressed in the note has-ever been paid. There is no proof that the makers of the note ever offered to pay it in anything which the holder was bound to receive. They do not make a tender of the sum due, or any part of it, with their bill. The decree should be reversed, and the bill dismissed.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

Suit was brought by Cole for'the use of Gibson, on an instrument in the following words: — Due John H. Cole three hundred and twenty-seven dollars twenty-seven and a half cents, to be cancelled by a cotton bond, this 28th January, 1839. John Connelly, J. Hundley.” The process was returnable to May term, 1840, and was executed on Hundley, against whom a judgment by default was taken at July special term. Execution issued, and he gave a forthcoming bond, and then filed a bill for an injunction, which was answered and depositions taken, and at the hearing the injunction was made perpetual.

The bill charges that this debt was to be paid in notes of the Bank of Madison county — that the amount in such notes was tendered by Connelly, the principal, and that he is still ready and willing to pay in that way, although his insolvency is also charged ; and it appears from the proceedings in the cause, that he has removed from the state. It is also charged, that Cole was a stockholder in the bank, and that it is now insolvent; although there is no charge that this contract was made in behalf of the bank, and any proof on that subject was irrelevant. The reason given for the failure to attend the court and defend at law, is that complainant was dangerously sick during the July term.

In the first place, if there is any defence set out in the bill, it could have been made at law ; and the reason given for a failure to defend is insufficient. The judgment was not rendered at the return term — the party had ample time, but still he does not aver that he employed an attorney, and informed him of his defence — he had filed no plea, nor had he subpoenaed witnesses. If he had been well and present, he could not even have procured a continuance of the cause on the showing made by this bill.

But the defence set up is insufficient to avail him. He avers that the note was to be paid in the notes of the Bank of Madison County, which had been tendered by Connelly, the principal, who is now ready and willing to pay, but the notes were not brought into court. But the contract set out in the bill is entirely a different one from that declared on. The note was for so much money, to be cancelled by a cotton bond. The complainant avers that it was to be paid in the notes of the Bank of Madison County. Parol evidence is not admissible to vary a promissory note, so as to change its terms, and make it a different contract. 1 Phill. Evid. 555, and note 976.

The decree must be reversed, and bill dismissed.  