
    
      WOOLSEY vs. PAULDING,
    
    
      ante 295.
    East’n District.
    
      April, 1821.
    Former judgment confirmed.
    Hennen,
    on an application for a rehearing.
    The plaintiff claims the sum of $12,317 99 cents, as the balance of a note of hand made by Marquand and Paulding, in the city of New-York, on the 15th of July, 1814, payable sixty days after date, to his order. The note was originally, for the sum of $15,000, but several payments had been made on it prior to the institution of the suit ; and the jury declare in their verdict, that all the payments made thereon, “ amount to the sum of $3,424 75 cents ;" which, consequently, leaves a balance
    due on said note, of $11,575 25 cents. instead of the balance claimed of $12,317 99 cents. In no part of their verdict, have the jury found, that the note carries interest, or, that the interest is due on it ; nor have they any where in their verdict, which is special, found that any other sum is due the plaintiff, than the balance of $11,575 25 cents. Both interest and costs are claimed, but the jury have accorded neither. These most important facts, it is presumed, must have escaped the attention of the court, when it condemned the appellant to pay, in addition to the said balance of $11,575 25 cents, settled by the jury, to the amount of the note remaining due, the further amount of interest on said balance, at the rate of 7 per cent. per annum, from the 21st of Jan. 1818, until final payment ; that is, 21 per cent, or nearly one-fourth of the whole balance found by the jury to be due ; and also the costs of the suit, amounting to upwards of $200 more.
    That the court is not authorised to add, so materially, to the verdict of the jury, is clearly shown from the best authorities in the law, both in England and in the United States.
    “ When a verdict is found, (says a book of standard authority) there can be nothing added to it, or taken from it, but as it is found, so the court must judge of it;” and whatever is found in a verdict, whereupon the court can give any judgment, must be positively found, not ambiguously, for if the jury doubt, the court can never resolve the matter of fact,” Trials per pais, (5th edit. 1718) 287, id. (9th edit.) 340. " The court are confined to the facts found in a special verdict,” 2 Yeates' Rep. 543. “ On a special verdict, the court cannot intend any thing which is not found,” Caines' Rep. 60. “ A special verdict must find the facts distinctly” 4 Yeates' Rep. 54.
    In short, it is believed, that this court will recognise the general principle; and as the jury pronounce their verdict, so the court must render their judgment; without dimunition or addition. Hardly a law book can be opened, that does not support these positions. Moreover, “ a verdict must be sufficient in matter and form, be the same special or general ; and therefore, the jury must find damages and costs where the same ought to be found,” Trials per pais, 288, (9th edit.) The jury are to assess damages and costs, ib. 295, 296. Wood's Institute, 600. 2 Keb. 488. And if a verdict does not find damages and costs, it is imperfect; but the omission shall be aided by a release of them, 5 Comyn’s Dig. 506. Interest on bills of exchange, promisory notes of hand, &c. has always been found, where it is intended to be given by the jury, under the title of damages. Interest was never yet, in any case that has been reported, added to the amount of a verdict of a jury, where they did not find it due. See among a thousand authorities which might be produced, the following; Caine and Coleman's Cases, 65. 4 Johnson's Rep. 183. 12 Johnson's Rep. 17. 6 Mass. Rep. 157. 2 Reports South Carolina, 68. 5 Mumford, 25. 4 Yeates’ Rep. 47. 1 Yeates' Rep. 1, 55. 1 Dall. Rep. 440, (costs.) 2 Dall. Rep. 92, 252, 6. The statute of the state is in strict conformity with the above legal positions. By the act of the legislature, 1817, page 32, sec. 10; the parties in a cause, are to submit for the finding of the jury, a written statement of the facts set forth in the petition and answer, and the jury are bound to give thereon a special verdict, which, when recorded, “ shall be conclusive between the parties as to the facts in said cause, as well in the court where the said cause is tried as on the appeal, and the said court shall render judgment." Now, interest, in this case, is claimed by the plaintiff, and denied on the part of the defendant, to be due: whether interest then is due, and at what rate, is clearly a question of fact for the finding of the jury. The plaintiff claims interest, without, however, specifying at what rate, or agreeable to what laws; " interest and costs," generally. It was incumbent, however, on the plaintiff, as the court, in their judgment admits, to prove, that interest was due by the laws of New-York, where the contract was made ; and also to prove the rate of interest allowed in that state. The court, in the opinion delivered in this case, refer to the judgment of the court in the case of Bogg vs. Reed, 5 Martin, 673. The correctness of the principle of law contained in that case, is not now called in question ; on the contrary, it is invoked. The laws of other states must be proven before the judges in every case, in which it is proper they should influence their opinion. This is precisely what is asked for in this case. This court is bound to render judgment on the facts found by the special verdict ; nothing can be added to it ; for it is conclusive, as to the facts in the cause. Now, have the laws of the state of New-York been found in any part of this special verdict? Can the court derive any information from the special verdict? Can the court derive any information from the special verdict rendered in this case, to influence their opinion on the subject of the laws of the state of New-York? Where can it be shewn from the special verdict, that interest at the rate of seven per cent, per annum, is allowed by the laws of New-York, in a demand like the present?
    The fate of the present application may be safely rested on this simple query : Have the jury found, that interest, at the rate of seven per cent, per annum, is due the plaintiff. If it can be shewn that they have, such interest must be allowed ; on the contrary, if the verdict gives no interest, none should, or can, be allowed on any principle of law.
    But furthermore, the plaintiff, in the written statement furnished by him for the finding of the jury, does not claim any interest on his demand. There is nothing in this statement which gives the remotest intimation of such claim. Nothing is said about the laws of New-York; when, or on what claims those laws allow interest; or at what rate. How was it then to be expected, that the jury should find that, about which the parties had submitted nothing to them? If the plaintiff neglected to submit this important fact of interest to the jury, he must pay for his inadvertence. The present case is one of peculiar hardship on the appellant. A dishonest partner in New-York, contracting a secret debt, of more than $45,000, a long time concealed, most industriously, from his injured partner, the villainy practised on him; at last, on this trial, exhibits himself united with a treacherous agent to support the demand of the plaintiff: and without a blush, both agent and partner have surrendered to the plaintiff, the confidential communications of the defendant; communications which more strikingly shew his integrity, while they seal the infamy of their characters. Not the slightest imputation of fraud is intended to be made against the plaintiff; yet, in a cause like the present, peculiarly hard on the defendant, the court will not feel any disposition to aid the plaintiff an iota beyond the strict bounds of law. The law which condemns the defendant to the payment of any part of this debt, is hard; the plaintiff then cannot ask from the indulgence of the court, any further relief than what the strict technical rules of law will allow. Had the defendant relied only on such rules, he would have merited, in this case, the support of the court. But he invokes the principles, decisions, and laws, which are the very basis where reposes the security of the citizen, both for his property and for his life, which are secure no longer when the verdict of a jury is not considered as inviolable.
    Livingston, for the plaintiff.
    This application is confined to a single suggestion, that the court erred in giving interest on the balance ascertained to be due on the note, because the jury have not found either that interest was due, nor have they fixed the rate of interest. The principle assumed, that the judgment of this court must be rendered exactly as the jury pronounced their verdict, is not believed to be strictly correct in special verdicts ; under our act, it is obviously unfounded, for there the jury find nothing but naked facts, from which the court draw the proper inference. If then, it were true, that, "as the jury pronounce their verdict, so the court must render their judgment,” as the defendant’s counsel assert, we should have no result whatever; the judgment would be exactly what the jury found ; if they found that the defendant executed the note, the judgment could only, according to the defendant’s rule, affirm that fact, without drawing the inference that he was bound to pay. The court therefore must, in their judgment, go further than the verdict ; they must do more than merely affirm the facts, they must, in considering them, draw every legal consequence, and infer every fact necessarily implied by those that are found. The doctrines contained in the authority quoted by the defendant’s counsel, that as the verdict is found, so the court must judge of it, does not go the length of defendant’s rule, which would restrict the judgment of the court, to a simple repetition of the verdict. In the case he has quoted, 2 Yeates', 544, we find it laid down from the high authority of Croke, that, if the jury, in a special verdict in ejectment, submit a particular point to the court, they will intend every thing, that is necessary to their giving their judgment. In 1 Dallas, 134, Chief J. Shippen cites the case of Galbraith & Scott, where a verdict was given for the plaintiff, for one half of the premises, saying nothing of the other, and the court amended it by adding, “ and for the rest, we find for the defendant," though there was nothing to amend by; merely (says the authority) because it was implied in the verdict.
    
    The case quoted from 1 Caines, 64, is a strong exemplification of the danger of trusting to general dicta, which fall from judges in delivering their opinions, and repeating them as maxims, when our attention to the circumstances of the case, would shew that it formed an exception to the general rule laid down.
    The court there, it is true, say, that they “can intend nothing, but what is found by the verdict." But in that very decision it will be found that they intended a great deal that was not found ; not any thing, certainly contrary to the finding, but much that was only matter of inference. The verdict finds, that the vessel in question, sailed on a voyage from Hispaniola to St. Thomas. The court declare, without any finding, that St. Thomas’ is a Dutch island; the jury found a passport in hœc verba, the court determine, that it is customary for vessels to protect themselves by such papers; the verdict says nothing of a state of war, the judgment is wholly founded on that fact.—And the inviolability of a verdict is so far from being established, in the manner stated in the defendant’s petition, that there are numerous instances, in which it has been amended, some times from the judge’s notes, some times from mere intendment, 2 Johns. 442, 283. 2 Johns, cases 17. 1 Caines, 381, and even on the affidavit of the attorney. 1 Caines, 394.
    Here, however, we want no amendment, no change of the verdict, nothing but the exercise of that sound discretion, in drawing legal inferences from the facts found, and establishing as fact, that which is necessarily implied by the verdict.
    On the point under discussion, the jury have found, in answer to the second fact, stated by the plaintiff, that the note was signed by the defendant’s partner, for money advanced to the firm, by the plaintiff. On the third fact, they find that the interest was paid on the note up to 21st of January, 1818.
    The note, here referred to, is the one on which the action is brought, which is annexed to, and forms a part of the petition; now, in this finding, we have full proof of the two points in which the verdict is supposed to be defective ; expressly, that interest was payable, and by necessary implication, at what rate ; an express stipulation is endorsed on the note, signed by the drawer, that it shall bear interest from the time it fell due, and by calculating the sum due for interest on the capital of the note, at 7 per cent, on the 23d of February, 1815, it will be found to correspond with the sum of $453 75 cents, on that day, received and declared by the indorsement to be in full, for interest to that time.
    Will it be said that the jury have found the note, but not the stipulation to pay interest? This cannot, even with plausibility, be contended, for by finding the note, they find all the stipulations it contains on the part of the drawer, and the endorsement, agreeing to pay interest, is as much a part of the note, as is the promise to pay the principal contained in the body of it. They have further affirmed this ; in answer to the first question submitted by the defendant, he asks “ by whom was the note of hand annexed to the petition, written and subscribed?” They answer, “ Marquand & Paulding—by J. Marquand;” here the note is identified to be the one annexed to the petition, and they declare that the writing and subscription is that of the defendant’s firm. Did the jury mean to make a distinction between the writing and subscription of the note, and of the promise to pay interest? Is it not, on the contrary, a direct finding of both? But if not a direct finding, is it not a much more direct inference, than any which, in the cases cited, courts have thought themselves at liberty to make?
    Equally strong is the conviction, relative to the rate of interest arising from the other endorsement, and from the answers of the jury to the second and fifth queries of the defendant. They say that the monies advanced and paid by the plaintiff, amounted to $45,542 50 cents, according to the account, and that the dividends, stated in the account, are presumed to be correct.
    
    The account, here referred to, is to be found in the record ; it begins with the note of $30,000, and the one now sued on $15000, making together, the sum found by the jury to be a demand according to account.
    
    It is further identified, to be the account referred to, by the coincidence of its containing the account of the dividends, which they find 
      to be correct, and as it is the only account produced, it must necessarily be presumed to be the one intended. Let us here guard the court against a groundless intimation, made on the hearing, that this account only appeared in the answers of the plaintiff, which were not received as evidence, and which, therefore, the jury would have had no right to refer to; on the contrary, it is a document marked C., which, by the record, the court will find, was introduced by the plaintiff.
    Now, in this account, we find, not only that interest is charged on the capital, and credited on the different payments, but the court will, by taking the trouble to make a fair calculation, find that this interest was always calculated at seven per cent, and it ends in the same result with that, which, in two or three parts of the verdict, is found by the jury ; viz. that on the 21st of January, 1818, there remained due on the note, this sum of $11,575 25 cents. But it also expressly asserts, in the concluding remarks, that this balance is to bear interest from the 21st of January, 1818; and, as this account is signed by the agent of the defendant, so far then, from any violence being done to the verdict, by the allowance of interest, it appears to me, that a sentence which deprived us of it, would have been at direct variance with the finding of the jury, both express and implied.
    The defendant’s counsel employs a fallacy in argument, which, though it cannot escape the attention of the court, it is yet my duty to detect. He says, courts never give interest where it is not found by the jury. Here he is mistaken ; in fact, courts always give interest from the judicial demand; because it is directed by law, whenever the jury have found that a debt existed. But the fallacy of the argument lies, in applying to a judgment rendered as this was, upon facts found, the authorities and principles of the common law, relative to general verdicts. There generally (though, as we have seen, with many exceptions) the courts give judgment for the very sum found by the jury ; their duty extends in those cases, no further than to carry that verdict into effect. But on a finding of facts, under our law, the case is different. The jury only find the materials on which the court are to give such decision as will render justice to the parties ; they draw all necessary inferences of fact ; they apply the principles of law. The facts found by the jury are the evidence, and, if I may so express myself, it is the court which gives the verdict : according to that evidence, it is true ; but drawing every necessary inference from it, which reason and justice require.
    Negligence is imputed to the plaintiff in not submitting this fact of interest to the jury ; but he submitted the note. The note carried interest, not indeed, on its face, but its back, and without a distinction, that would bear the appearance of a play upon words, rather than a legal argument. The fact submitted and found is sufficient to justify the judgment of the court.
    The defendant has travelled out of the record, in order to state circumstances, which he supposes, will raise a case of peculiar hardship for equitable relief. The harsh terms of villainy and fraud, are used without mercy, and, I think, without reason or evidence. It is true, they are not applied to the plaintiff personally, but are very liberally bestowed on the transaction which forms the basis of his demand. It is not the duty of the plaintiff’s counsel, and certainly is not their intention to recriminate. A few observations, however, may be necessary to shew, that we do not acknowledge any such case of equity as is here set up.
    First, as to the secrecy of the transaction, we have evidence under the defendant’s hand, that he was informed of it. In his letter of the 10th of December, 1817, to he found on the record, he admits, that this transaction was not placed on some schedule that Marquand had furnished him; yet he says, “ I have understood from him (Marquand) that Wm. W. Woolsey held stock of Marquand & Paulding, as collateral security for some of Marquand's transactions. Now, when did he understand this? Certainly, not any short time previous to the writing of the letter ; for, in another part of it, he says, “ he (Marquand) does not write to me, except in one instance, a few days since, merely recommending me to pay Milnerbull’s note.” The strong probability, therefore, is that he heard of this transaction at the time it took place, though he was not as fully informed on the subject as he could have wished. What reason Paulding has to complain of the villainy, as he calls it, of his agent, we are ignorant of; but if it is to form any feature in his case, to our prejudice, we should ask some further evidence of it, than we have been able to discover from that exhibited to the jury. The charge of treachery is one which is rather oddly made : “ the partner and agent have most basely given up letters of the defendant, which shew his integrity, but seal the infamy of their own characters." Now, if this be treachery, it is treachery to themselves and each other, but surely none to the man whose integrity they establish ; and instead of making it a ground of complaint, the defendant should admire the rare self-devotion of his partner and friend, who, at the expence of their own characters, disinterestedly support the integrity of his. But to speak seriously, can Paulding wonder, when he endeavours to throw so large a partnership debt on the shoulders of Marquand ; that he should furnish the proof under Paulding’s hand, that it was a joint one. When Paulding, after due deliberation, in the third answer, on record, does not scruple, explicitly, to deny that any partnership ever existed between them, after having generally denied it in his former answers ; can he wonder, I say, that Marquand, as well from motives of honesty to the plaintiff as to serve himself, should give the evidence of the falsity of these allegations. And it is very much doubted, whether the court will perceive any marvellous title to favour, in the conduct of a partner, who, thrice upon record, denies the existence of a partnership, which is fully confessed in his letters ; who makes that partnership a question to be tried by a jury, and then complains of treachery, and raves about villainy and fraud, because his letters were produced which proved the falsity of his plea.
    Again, what can be the equity of exonerating the defendant from the whole or any part of a debt, which the defendant directs his own agent to settle ; which the agent liquidates, and which he, himself, afterwards, explicitly acknowledges to be just, and never thought of denying, until, perhaps, it was suggested, that it might be difficult for the plaintiff to obtain proof of the partnership, and that, at any rate, by the aid of such obstacles and exceptions, as have been named in this cause, the payment might, at least be delayed.
    
      Hennen, for the defendant.
    The plaintiff’s counsel admits, what is incontrovertible, that the jury have not found any interest due to the plaintiff; an unliquidated demand of $12,317, 93 cents, has been reduced by the verdict, to the sum of $11,575, 25 cents. And, on this latter sum, the balance found by the jury, to be really due, the plaintiff contends he is entitled to interest, at the rate of 7 per cent, per annum, from the 21st January 1818, until final payment: not because any part of the verdict authorises such judgment, but because, on the back of the note sued on, there exists a memorandum, purporting to be signed by Marquand & Paulding, to pay interest on the note, from the day it became due, until final payment. Now, to this, there is a very plain answer ; the jury have found by their verdict, to which the parties must be rigidly confined, that Marquand & Paulding signed the note ; and they have found no more. The defendant C. Paulding, among other things that he has denied, to the grievous displeasure of the plaintiff, denies that this engagement to pay interest, written on the back of the note, was written, or signed by himself only, Marquand & Paulding, or by the consent, or approbation of either of them. The signature, “Marquand & Paulding,” at the bottom of said engagement, may have been put on the back of the note by the plaintiff himself, under whose control it has always remained ; or it may have been so put by some other person. It is however certain, that no attempt has been made by the plaintiff, who now finds so much use for the benefit of this memorandum, to shew that it was made by Marquand & Paulding; no opportunity has been offered to Marquand & Paulding, of shewing by whom this officious act was done, for it has never been charged upon them ; and the jury, which laboriously solved above twenty questions in the case, submitted by the respective parties, has kept a profound silence on this head. The court, therefore, must adhere to an ancient law maxim (heretofore sanctioned, 7 Martin's Rep. 30.) De non apparentibus, et non existentibus eadem estlex ; and then the whole superstructure of the plaintiff’s argument is left without a basis. But, furthermore, this is a most important contract, now attempted to be enforced against one of the defendants, who assuredly never knew any thing of the transaction, out of which it originated, until called upon to pay a sum of $50,000, and upwards; a contract too, which to him in the present stage of the case, if enforced, will make a difference of about $4,000; and that too, without any evidence against him, but such as is drawn by ingenious deduction from gratuitous conjectures, Surely the supreme court of the state of Louisiana, will not, on such grounds, deprive a citizen of $4,000, to enrich the overloaded coffers of a stranger. This court has repeatedly said, that it will deliberate long, and weigh well before it will pronounce against the fortunes of its fellow citizens. With an equal determination to do right, will this honourable court, I am confident, and with greater pleasure, recall a sentence which condemns a suitor to pay $4,000, without the requisite legal evidence.
    The rule which requires the plaintiff to make out his case, by legal evidence, is not a new, nor a hard rule ; for he comes, or ought to come, prepared to establish, satisfactorily, his allegations ; and if not prepared, he can always withdraw his claim, until he obtains the requisite proof. Not so the defendant, he is at the mercy of the plaintiff. If he commits an error, he is without remedy. And hence, the propriety of holding inviolate the rule, which condemns the defendant, to no more than what the plaintiff unequivocally proves upon him, and acquits him, whenever doubt or want of proof, leaves the scales of justice even.
    It is granted, that every fair and legitimate conclusion, which can be drawn from a special verdict, is to be used by the court when about to render judgment, under the 10th sec. of the act of 1817, (page 32.) Yet, the facts found must be conclusive between the parties, and the court can no more add to them, than contradict them; especially on such an allegation, on the part of the plaintiff, as that interest to the amount of $4,000, is due by the defendant, who, on his part, expressly denies it. If the verdict of the jury decides nothing on the interest, can the court? If the jury has not found the stipulation to pay interest, can the court determine that it was written, or signed by Marquand & Paulding, or either of them ? The authorities quoted, decidedly determine the negative ; and the statute adds, the court shall render judgment, on the verdict, as recorded ; which is to be conclusive between the parties. It may then be fairly concluded, that the court has nothing in the verdict on which to condemn the defendant, to pay interest, on a demand liquidated only by the verdict.
    
      if the above conclusion is correct, there is no necessity to enquire into the rate of interest to be allowed. I would remark however, on the attempt made by the plaintiff’s counsel, to establish the rate of interest, by reference to an account filed among the proceedings, that if this account is to be taken in toto, as a part of the verdict, that all the objections urged to the court, on the argument of the cause, by the defendant, are completely supported. So much was the plaintiff’s counsel aware of this, that at that time, the reference to the account was considered as surplusage in the verdict, and as such, rejected by the court. That account will prove, that interest upon interest, has been exacted ; that the stock pledged for payment of the note now sued on, is more than sufficient to pay it; and that consequently, the defendant owes the plaintiff nothing; and finally, it will establish a continual contradiction to almost every finding in the special verdict.
    Should the court, however, as the plaintiff’s counsel correctly states, consider the special verdict, as evidence in the cause, from which no departure is to be made; a decision must be drawn from it, entirely conformable to the argument which I have the honor to urge for the defendant. On the verdict he relies; and by it alone, he prays to be judged.
   Martin, J.

The importance of this case, and the earnestness with which it is pressed on us, have induced us to adduce the reason on which we deem it unnecessary to grant a rehearing.

It is certainly true, that the verdict of a jury, in the present case, being on special issues, is conclusive on us, and that we cannot add any thing thereto ; but this must be understood as to matters of fact: we must declare the law arising out of the facts found.

The verdict before us is not a special one, but the finding of special issues.

The suit is grounded on a note, a copy of which is annexed to the petition. On the back of the note are several endorsements; the first of which purports to be signed by Marquand & Paulding, and the other by the defendant. Marquand & Paulding promise

to pay interest on the note from the time

it became due, and Woolsey acknowledges partial payment of the principal and the interest.

The defendant pleaded the general issue, and the jury found, that the note was written and subscribed by Marquand, for Marquand and Paulding.

We have been of opinion, that on this finding, it was our duty to allow interest on the note, at seven per cent, and this part of our judgment we have been requested to re-examine.

We have heard the counsel of the parties.

The jury having found, that the note was written by Marquand, we must conclude, that they found that he wrote every thing on the note, which purports to be written by him. For every thing which a man writes in the margin, or on the back of his note, makes part of it, and extends or restrains his promise. It is true, proof of the writing the note is not proof of the writing the endorsement, so as to satisfy a jury ; because the party who produces it must account for every thing which appears to have been added thereto; but when a note is denied, and the jury find it written by the party, the conclusion is, that he wrote the whole of it. For if any thing material be added to it, it is no longer the party’s note, and the jury ought to say, he did not write it.

In present case, this receives additional strength, from the circumstance of the jury having calculated interest on the note, in order to ascertain the sum remaining due, after the deduction of partial payments endorsed thereon. They find an account correct, in which interest is charged. This furnishes also, the means of ascertaining the rate of interest, which appears to be seven per cent. Although the record contains no direct evidence, that this is the legal rate of interest in New-York, where the note was made ; the finding of the jury informs us, that it is the rate which they allowed.

Upon the whole, we have no solid ground to disturb our judgment.  