
    READ vs. BAILEY.
    Fall, 1811.
    First District.
    Whether the whole answer to an interrogatory be evidence for the respondents.
    This was an action brought to recover the price of a negro, sold by the defendant for the plaintiff.
    one of the interrogatories, the defendant was required to recognise the copy of a letter, by which he had informed the plaintiff that he had sold the negro, on a credit, and promised to remit the price, as soon as it came to his hands.
    Tn E defendant recognised the paper, annexed to the petition, as the copy of a letter he had written to the plaintiff in reply to one, by which the plaintiff had directed him to iemit the proceeds of the sale of the negro, in good bills on Charleston-adding he had informed the plaintiff of the receipt of the price of the negro, and required his further instructions, as no bills on Charleston could be procured: that on the receipt of the de-fcndant's letter, the plaintiff, or his brother, as his agent, shewed it to the defendant's brother, who, observing that the money was in the defendant's hands, at the request of the plaintiff or his brother, as his agent, gave his own note, for the amount, and charged the defendant therewith.
    Ellery, for the plaintiff.
    I rely, in this case, upon the testimony drawn from the defendant up-Pu the~interrogatories exhibited by the plaintiff He has there established our demand, by admitting the debt; it is now incumbent on him, to- prove the facts, which he has set up by way of avoidance.
    Grymes, for the defendant.
    The defendant in his answer has charged and discharged himself; his testimony cannot be divided against him; it must be taken whole and together. These prin-cipies obtain both in courts of common law, and in those of equity; they are more particalarly recognised in the case of Kilpatrick & Thrupp vs. Love. Ambler 539; aad have been recently acted upon in this court, in the case of Taylor & Hood vs. Morgan. 1 Martin, 204. And this testimony, thus furnished by the defendant, at the instance of the plaintiff, must be received as true, unless disproved by the oath of two credible witnesses, or of one credible witness, and strong corroborating circumstances. O. L. 1805, ch. 26; sect. 9.
    • Ellery, for the plaintiff.
    The principle, which obtains in courts of common law, I know to be that the patty producing the answer in evidence, makes the whole of it admissible, though not conclusive, testimony for the party making such answer, and that it is not to be separated against him,, but to be received entire and unbroken.
    Although it must be thus taken together, and the whole of it read, yet, in many instances, the defendant will be called upon to prove his illegal tions. 2 Esp. N P. 753. And in a recent case, it has been decided, that the production of the answer in evidence, makes the whole admissible, only so far as to wave any objection to the competency of the defendant, but not so as to admit facts which appear in it to hive been stated upon hearsay. 2 Bosg. & Pull. 548; and Lord Mansfield, in the case of Bernion vs. Woodbridge, says, though the whole of an affidavit or answer, must be read, if any part is, yet you need not htheve all equally. You may believe what makes against his point, who swears, without believing what makes for it. Doug. 783. But in courts, like ours, possessing chancery power and equitable jurisdiction, this principle is carried much further; it is there distinctly laid down, that the admissions of defendant in his answer, shall be taken as conclusive evidence against him, and that it he set up any distinct fact, by way of avoidance, he shall be put to the strict proof of it. And this reason is assigned; that his admissions may have been produced, from an apprehension they might have been proven, and therefore ought not to profit him, so far as to make pass for truth, whatever he says in avoidance. Gild. Law of Ev. 52. Bull. N. P. 237. 2 Esp. N. P. 752. Peake, 38, note (i). The case of the bill exhibited by creditors against ati executor, cited itt the above authors, strongly confirms and illustrates this principle. The executor answered, that 1100l. had been deposited in his hands by testator, but, that afterwards, upon a settlement of accounts, he gave his bond for 1000l. and that the remaining 100l. was remitted to him by the testator, as a compensation for his services. Here, though there was no other evidence of the deposit of the 1100l. but the executor's own oath, it was nevertheless held, that when an answer is put in issue, what is confessed and admitted, need not be proven by plaintiff, but that it behoved defendant to make out by proof what was insisted upon, by way of avoidance; but with this distinction, that if defendant admitted a fact, and insisted upon a distinct fact by way of avoidance, there he ought to prove the matter of his de-fence; but, if it had been but one fact, as if defendant had said, that the testator had given him the 1OOl. it ought to have been allowed, unless disproved, because nothing of the fact charged, is admitted, and the plaintiff may disprove the whole fact, as sworn. if he can do it.
    Neither of the cases reported in Ambler and. Martin, appear to be at variance with this princi. pie, so modified: in both these cases, no distinct facts are set up in avoidance, but the whole constitutes but one fact, which fact is not admitted, but denied. This also is perfectly correspondent with the principles of the civil law. Fothier distinguishes the oath which the defendant takes up. on interrogatories exhibited by plaintiff, from the decisory oath. The latter is proof for him who takes it; whereas, on the contrary, the answers, which the party interrogated makes, are proof only against him; because the plaintiff put to the defendant these interrogatories, in order to derive some proofs from his adrnissioas or contradictions: ut confitendo vel mentiendo se oneret. L. A, ff. At the same time, the general principle, that the defendant's answers are not to be divided against him, applies; if, for example, the defendant acknowledges, that he received, but adds, that-he returned, a loan, his declaration must be taken entire. 2 Pothier on Ob. 303. 2 Evan's Pot. Ap. no. 16. 156. But say that the case in Ambler and Martin, form an exception to the general rule of evidence, which obtains in courts, possessing~equitable jurisdiction, has the present defendant brought himself fairly within it?
    In the casein Ambler, the party charged and discharged himself in the same sentence, and the Lord Chancellor is made to say, "otherwise it "had been, if the discharge or avoidance had been " in distinct sentences ;" and the argument ofthe case sums up the principle decided in it, by saying, that "the party may charge and disdharge himself in the same sentence, but not in different sentences." The party here admitted in his answer, the receipt of a parcel of sattins, but, in the same sentence, swore, he had paid for them. And this was the only fact charged. But, iii this case, at present before the court, does the-defendant rely only upon one fact in his discharge, - or doeshe charge and discharge himself in they same sentence? The interrogatory, administered to him, is, whether he was the writer ofa certain letter, the copy of which is inserted in the interrogatory, in which defendant acknowledges the debt. He answers in the affirmative, and thereby charges himself; but instead of dis. charging himself in tbe same sentence, he sets up a number of distinct facts in avoidance; he goes on in his answer, to, give an account of the cord respondence between him and plaintiff;-an history of their dealings;-a narration of certain transactions between his brother and the brother of the plaintiff, and his brother and himself;of a note, given by his brother to the plaintifF, or perhaps the plaintiff's brother, on account of this debt; which, however, he does not state to have been paid, but only leaves it to be inferred. This answer is spread over many, sentences, and covcrs a great deal of ground, and comprizes a variety of matter. Can it be seriously likened then to the case in Ambler, where the whole constitutes but one fact, and the party swears posi~ tively and distinctly, and. charges and discharges himself in the same sentence? A sentenèe is ge~ nerally taken to be a period in writing; here we find a number of them; and no species of puncJ tuation, either legal or grammatical, can confine his answer within the limits of a single one. And if the word sentence be made to overrun a period, so as to embrace this case, what bounds can be assigned to it, short of the whole answer to an in~ terrogatory, however long or broken it may be, and, setting up ever so many distinct facts in avoidance: but this is not the sense in which this word is used by the Lord Chancellor; otherwise, he would have said, if the party charged arid discharged himself in the same answer, not in the same sentence. His idea undoubtedly was, where the whole constitutes but one fact, and, of course, is comprised in one sentence.
    Nor is the defendant better supported by the case in Martin,determmedon the same principles. There but one fact was put in issue, no distinct ones set up in avoidance, or separate sentences employed. The defendant is there asked, if he did not receive certain goods, &c.? He answers, that he did receive them, but adds as a consignee, not as a purchaser. His answer is a complete negative to the interrogatory administered, the object of which was to ascertain the purchaser. The defendant is certainly allowed so to qualify his answer as correctly to meet the question proposed; and this fact, viz: the manner of receiving the goods is but a proper qualification of his answer, of which it forms a necessary and indivisible part. That he was the purchaser of the goods, is the fact charged in the petition and put in issue; now, nothing of this fact is admitted in the answer; but, on the contrary, the whole of it is positively denied; of course, the defendant, by his own answer, stands completely discharged, and discharged too in the same sentence. The question put to him, is, substantially: are you the purchaser of these goods ? The answer to it, is, substantially, no; I am only the consignee. So, in the case of the bill in chancery exhibited against the executor, stated above; if the executor had only answered, that he had received the 100l. as a gift from the testator, he would have been discharged, and it would have been allowed, unless disproved by the plaintiffs ; and so in the case of the loan, mentioned in Pothier: because, as in the case of Taylor & Hood vs. Morgan,.but one fact is put in issue, and because nothing of that fact so charged, is admitted by the answer, and the plaintiff might disprove the whole fact, if he could. And this rule, says Evans, where the whole consthutes but one fact, is founded upon the most evident principles of justice. Although relying upon the admission of one fact, shall not completely establish the assertion of another, the representation of one and the same fact, must not be garbled or distorted. 2 Evans' Pot. 4p. no. 16, p. 158. By none of these cases then, is the present defendant borne out.
    BUT take, for a-moment, this answer of the defendant, upon its own merits; and see, whether it be such, as ought to discharge him, under our own act, which requires, that the interrogatories exhibited by either of the litigant parties, should be distinctly answered. O. L. 1805, ch. 25.
    Has this requisition been complied with? is this interrogatory fairly and distinctly answered? On the contrary, is not the answer vague, uncer tain issufficient and unsatisfactory; made up of deductions and inferences; of statements and re, lations, which bear the evident impression of second-hand and hearsay? Does he positively and distinctly swear, that he has discharged this debt, or that this debt has been discharged? Does he positively swear, that the plaintiff ever received the note given by his brother ; or that the plaintiff's brother ever received it;. or that he ever remitted this amount in good bills upon charleston, as he was bound to do? No ;-but that his brother, unrequested by him, has given the plaintiff's brother, or the plaintift for the sentence is in the disjunctive, he does not know which, a note, about the fate of which we are left in the dark.
    THU S are we left to find our way out of this transaction, and charitably to suppose an extin-guishment of the debt. Is it probable, if the facts therein stated, actually, existed, (as the plaintiff lives in the state of South Carolina, and the defendant in this territory,) they could have existed within the personal knowledge of the defendant? Does it appear, that the defendant was au-thorised to give, or the plaintiff's brother to receive, this note, in payment of this debt? WThy is this not better explained, more positively sworn to, and more fully proven? Why is not this cor. respondence alluded to, between plaintiff and defendant, produced? Must not the plaintiff's letter be in the possession of the defendant 2 Why is not the power of attorney, or letter of instructions, with which plaintiff's brother must have been invested, to settle this demand, exhibited? Why is not the receipt which defendant's brother must have received, upon delivering this note, brought forward? Why is it not produced to put the plaintiff to shame? Has not sufficient time been given to the defendant, since the institution of this suit, to procure any and every pa~ per and document, material to his defence? WThat has become of the commission, taken out by him, above a year since, to examine witnesses, whosc testimony was sworn to be material and necessary to his defence, and without the benefit of whidi he could not safely oroceed to trial?
    Er the defendant relied upon his answer, as discharging him, why resort at all to the commission? Or, if the testimony so tO be produced, or produced by it, is not of an unfavorable nature, why is it not brou ght forward? Again, had not the defendant, if fearful of too deeply charging himself in his answer, a right to resort, in turn, to the conscience of the plaintiff, for discovery? WTas not this the intention of our act, and is not its object to open the road to the conscience of each praty, and make the one as acce~sibIe as the other?
    Further, it will be recollected, that the d~-fendant is a witness in his own cause, made so by the necessity of the case; his declarations ought, therefore, to bemore strictly ex-. amined, and more rigoürously construed. He cannot be considered as an indifferent witness called to the stand. Neither his feelings nor obligations are such; he is not sworn nor bound, to tell the whole truth, touching the matter in controversy, but only to answer truly to the interrogatories exhibited. And in swearing to his answers, does he not swear to the best of his knowledge and belief? How shall we separate what he knows, from what he believes, or is informed, in the present answer, the major part of which evidently appears to have been out of his peisonal knowledge. If he is discharged upon such an answer, so historical, argumentative and circui-tons, it will go far to defeat the provisions of our act, and render it a dead letter. No plaintiff will ever think of resorting to it.
    Grymes, for the defendant.
    The plaintiff in this case, has resorted to the defendant for the evidence of the facts upon which he rests his claim. The defendant acknowledges the facts set forth, but at the same time, swears that he has paid the claim.
    The plaintiff objects to this part of the answer as irrelevant and impertinent. I rely upon the defendant in this case: 1st, upon the general principle that the defendant shall not be obliged to commithimselfby a mutilated answer; 2dly, that the measure of resorting to the defendant is a voluntary one, on the part of the plaintiff, and that a party's confession is to be taken altogether as well for as against him; that the matter alledged in evidence in this case, is not distinct from, and collateral to, the cause of action, but arises out of it.
    This doctrine is recognized fully in the case in Ambler, 589, and contradicted no where that I know of: but, on the contrary, confirmed by a solemn decision of this court, in Taylor & Hood vs. Morgan. 1 Martin, 204. In support of the necessity of this position, I would further observe that, the fact alledged in avoidance here, is such a one as might be confined exclusively to plaintiff and defendant. The plaintiff, in such case, would have the advantage of calling upon the defendant for the acknowledgment of a fact which would charge him, and the defendant be compelled to lose his money or trust to the conscience of a bad man, who, perhaps, he had no confidence in, and who had given him reason to think so, from the very fact of bringing the suit.
    The cases in Peake and Butler, are not at all relevant, and do not contradict the case in Ambler. For they allude entirely to the defendant introducing distinct or collateral facts, as his swearing to a gift from the plaintiff or his testator. This is a distinct substantive fact, which perhaps the defendant ought not to be permitted to prove himself, for if he had a gift made him, he ought to have something to shew for it, but the payment on the part of the defendant in this case, is a fact arising out of, and directly connected with, the single transaction between the parties.
   Martin,J.

It is not easy to distinguish this case from that cited out of Ambler. There the defendant interrogated whether he had not received a quantity of satins from the plaintiff answered he had, but he had paid for them. In the present, the defendant, interrogated whether a paper presented to him is not a true copy of a letter which establishes the plaintiff's claim, answers, it is, but the plaintiff has received by him-seIf or his agent, a paper, which, if not account-edfor, prevents the plaintift's recovery.

IHE plaintiff's counsel admits, that in a court of common law, the party producing his antagonist's answer, makes the whole of it admissible, but not conclusive testimony-that it is not to be separated, but to be received entire and unbroken. Examining, therefore, the case on this ground, we find a fict sworn to, which, if believed, must protect the defendant. This fact is, that the plaintiff has received by himself, or his agent, a paper which, prima facie, bars his recovery. It is true we have not the ground of the knowledge of the party who swears, but the fact is positively sworn to. The information may have been obtained in a conversrtion with the plaintiff, or by the sight of an instrument in the plaintiff's hand, a receipt or an account.

The plaintiff has chosen to call the defendant as a witness. After the answer was put in, he has not put interrogatories to obtain the ground of the defendant's knowledge. He has not moved, as he knight, if, as it is contented, the ease is to be distinguished from that of Taylor & Hood vs. Morgan, that such part of the answer which was not called for by the intelTogatory, be stricken off, but has proceeded to trial, and now contends that the court is to stop in reading the defendant's answer, after that part of it which admits the copy shewn to be substantialiy correct: all the rest being inadmissible testimony, and if admissible, not conclusived

I admit that there is some difference between this and the case of Taylor & Hood vs. Morgan. In that case the answer of the defendant was necessarily qualified, and advanced a fact which prevcnted the natural consequence of an absolute answer. He answered he received the goods, as the consignee of a third person, to prevent the conclusion that he received them, as a purchaser from the plaintiff. But in the case in Ambler, the defendant answered, he had received the satins, but had paid for, them, and this was held evidence of the payment. Here the defendant admits a paper which proves he received the proceeds of the sale of a chattel, and adds, the plaintiff, on whose account the money came to his hands, has received a note therefor, which is not accounted for. I am therefore led to the same conclusion which influenced the chancellor, and must conclude that the receipt of that paper is proven. The cases are not to be distinguished, because the defen- dant has fairly related particulars which he was not bound to detail.

THE case of the executor, supports the position contended for by the plaintiff: but if we give it all the force which his counsel insists it is to have, it is at variance with all others. Evans forewarns us that the rule laid down in that case, is principally applicable to proceedings in courts of equity, and Peace adds: that the contrary principle appears to him more Qonsonant to reason and justice.

If the cas,e was of binding authority in this court, we would certainly confine its operation to the answer to the bill, and we should find ourselves authorised to make a distinction between an answer to a bill and an answer to interrogatories. In doing so, we should reconcile the case cited, with that in Ambler.

Whatever may be the rule, in courts which exercise their common law and equity jurisdiction, distinctly, Pothier gives us that which pre. vails in other tribunals.

"Observe," says he, "that he who would a"vail himself of the admissions which a party in " his answers to the interrogatories has made, " ought not to divide them, but to take them "united. If for example, not having any proof "of the loan which I pretend to have made to. "you of a certain sum of money; I cause you " to be examined on interrogatories, and in your " answer you confess the loan, but addthat you " have since returned the sum: I cannot avail myself of the admission you have made of the "Joan, and set aside what you have added, that " you returned the sum; but I must take your declaration entire. Therefore, if I wished your admission to prove the loan, I must admit it " also to prove the payment, without your being obliged to make any proof of it, unless I " should be able to prove that the payment could " not have been made, in the thne and place, in " which you have said it was made. 2 Pothier on Oblipations, 308, no. 827.

In weighing the evidence before us, it does not appear to me that there is the least improbability in the defendant's statement. It is true, we have not the ground of his knowledge, but witnesses seldom give that, till they are particularly interrogated. Perhaps we are not at liberty to set the testimony aside, unless the plaintiff contradicts it by the introduction of two witnesses, or of one, with corroborating circumstances. O. L. 1805, ch. 26.

Ir being proved that the plaintiff received The note of the defendant's brother for the amount of his claim, the presumption is, as the note is not produced, that the plaintiff has ieceiv-ed payment or negociated it. The Superior Court of the state of New-York has determined that if a negociablenote, or bill of exchange, be given for a simple contract debt, the party cannot recover on the original contract, unless he shews the note to be lost, or produces and cancels it, at the trial. 1 Johns. 34. Holmes vs. D'Camp. It seems to ibe just that, before we give judgment against the defendant, the note should be accounted for.

Lewis, J.

The reason of the law in permitting a party to resort to the conscience of his adversary for a diclosure of facts, is founded in necessity; and is intended to apply only in cases where the evidence sought for is wholly in the power of the party called upon to disclose. He is there made a witness, under certain restrictions, both for and against himself; and his answer, when in his own favour, ought to be allowed as evidence only where it discloses the evidence of facts exclusively confined to his own breast. But where the answer shews that the parts disclosed are susceptible of other proof and withiil the power ofthe party, his answer is not the best evidence, nor ought it to be taken `as proof of the facts.

The defendant in his answer, acknowledges the receipt of the plaintiff's money, but further answers, in avoidance, that his, (the defendant's brother, in Charleston, S. C.) executed his note to the plaintiff or his agent, for the amount of monies received by the defendant, by means of which the demand became transferred and the defendant absolved from further liability. The plaintiff and the defendant's brother reside in Charleston. It does not appear that there has beerr any personal comniunication between either of them and the defendant, since the execution of the note. The defendant does not appear to have any positive knowledge of the fact disclosed in avoidance, for he does not know whether the note was executed to the plaintiff or his agent. This part of the answer, is at most, not stronger thaa hearsay testimony, and ought to be re jected.

Suit continue.  