
    
      RICHARDSON vs. TERREL.
    
    West’n District.
    
      September, 1820.
    A plaintiff appellant may give the bond of two individuals for his prosecuting the appeal. It is not necessary that he should give his own.
    The party who puts interrogatories is concluded by the answer, unless he disproves it by two witnesses.
    Appeal from the court of the fifth district.
    Brownson, for the plaintiff.
    This is a suit brought on a note of hand, dated 3d June 1813, for $2833, 33, payable in January 1815, on which there appears endorsed May 28th 1814, $166, 66 2-3, leaving a balance on the note of $2666, 66 2-3, which sum together with ten per cent interest from 1st February 1815, is claimed by the plaintiff in his petition.
    The defendant has in his defence filed two notes, one dated 4th June 1813, for $1787, 50 and the other without date for $160, both payable on demand, making together the sum of $1946, 50.
    Supposing that compensation were to be allowed for $1947, 50 against the sum of $2666, 66 2-3, and that the same took effect on the 1st of February 1815, it would leave a balance due by the plaintiff of $717, 16 2-3, exclusive of interest from that time.
    Again, supposing the note of $160 should be considered as included in the one of $1787, 50, there would only remain that sum to be allowed in compensation, which would leave a balance due the plaintiff of $879, 16 2-3 exclusive of interest.
    The district judge has however given judgment for the sum only of $383, 48 exclusive of interest. From this decision both parties have appealed.
    With respect to the note of $160, the plaintiff contends that it has been included in the larger one, and was to be cancelled or given up. The only evidence of this is the oath of the plaintiff himself. He swears unequivocally to the fact. And what gives it some contenance is that the small note bears no date. It was taken it should seem in haste, as a loose memorandum, and from the confidential footing upon which every thing seems to have been transacted, between the parties, at the time, this note may be supposed to have been given, it is easy to believe that the plaintiff would acquiesce in a declaration by the defendant that he could not for the moment lay his hands upon it, but that he would deliver it up or cancel it, whenever it was found. At any rate, the plaintiff has in substance stated this upon oath, and at the hazard of a prosecution for perjury, if he has stated it falsely, and it seems to me that he is to be believed, unless the contrary be proved. It is hardly to be presumed, that a man would hazard the consequences of perjury, for the paltry sum of $160, or that he would think to originate and fabricate such a tale, without any foundation for it in truth. Civ. Code, 316, art. 263 & 2 Mart. Dig. 160, section 9.
    But, to examine the pretentions of the defendant: it is said:
    1. That the plaintiff has engaged to cancel and give up the note, on which this suit is brought without demanding any thing upon it.
    2. That the defendant has contracted to pay interest upon the two notes filed, in the defence, from the date of the largest and that as the note, on which this suit is brought, did not fall due until the 1st of February 1815, compensation did not take effect until that time; that then not only the defendant’s two notes are to be compensated, but also the intermediate interest, which occurred upon them, from the date of the largest, up to the time of compensation.
    
      I. As to the first point, I trust I need not detain the court long to shew the utter futility of the pretention. To prove the facts on which it depends, interrogatories have been put to the plaintiff. The answer thus drawn from him gives an express and explicit negative to all the questions contained in the interrogatories, and not only do not furnish evidence for the defendant, but, must be taken as evidence against him. Civ. Code, 316, art. 263 & 2 Mart. Dig. 160, section 9.
    It is needless to enquire whether such a contract, as that alleged in the defence, which is in effect that the plaintiff should cancel and give up to the defendant the note on which this suit is brought, at a discount of twenty-five per cent, would be binding upon the parties, admitting it to have been fully proven. For it appears to me that there is no tittle of evidence to support such a contract, not the shadow of a pretence for it. On looking into the letters, from the plaintiff to the defendant, such an idea receives no countenance. It will be seen that, as early as February, before this contemplated arrangement with A. Lewis at Nashville, the plaintiff commenced writing to the defendant, informing him of his necessities for money, that he must make a sacrifice to obtain it, and requesting the defendant to sell his own and the Thruston’s bonds for $14500, for cotton at $18 per hundred, thinking that he could re-sell the cotton for $11 or 12, for ready cash, thus making a sacrifice of one third. But, it seems the exertions of Terrel to sell his own paper, if indeed he ever made any, proved fruitless.
    The bonds were not sold. In May following, Terrel proposed revisiting the states. It was thought that the note, on which this suit is brought might be negotiated to A. Lewis. Terrel undertakes to effect the negotiation and to facilitate the accomplishment of this object; Richardson authorizes him to sell the note at 25 per cent discount, which would give him $2000 to answer his necessities in the states. But, what does all this prove, but that the plaintiff was as ready to do a favour to the defendant, as it appears, he has been liberal in acknowleging favours received. His object was, not to give Terrel a speculation upon himself, but to raise for him, in an emergency, the money which he wanted at the price of almost any sacrifice. Had Terrel proposed to him, in direct terms, to annul the note at 25 per cent discount, he would have said “if you are my friend, Terrel, you may want this money, and I am willing to consent to any sacrifice to raise it for you, but you cannot wish to speculate upon me in my distress.”
    But, it seems that in September 1815, the plaintiff writes to the defendant in the states, using the following expressions: “In your last letter you beg that I would not part with your first bond to me. I have it yet, and rest assured I will keep it until I deliver it to you, and with heartfelt sorrow it is I know, that you should have been paid what I owe you long, long before your note became due to me.”
    Now, if such stipulations and agreements, as the defendant alleges, had ever been entered into, is it probable that the defendant would be found begging that the plaintiff would not part with his bond? Would he not have claimed it as a matter of right? And because the plaintiff engaged not to part with it, but deliver it himself to the defendant, does it follow that the defendant intended to give up any of his rights up on it? That he intended no such thing appears clearly from the plaintiff’s subsequent letter to Brent, dated a few days later, in which he says “Terrel’s first bond I shall hold for him, as I owe him nearly the amount of it.” This expression more explicitly declares the intentions of the plaintiff. They were to keep the note for the defendant, it is true, and as it was comparatively speaking nearly paid by the note due from the plaintiff to him, the plantiff was willing to wait until some convenient opportunity would enable them to exchange notes, and then to receive the balance due from Terrel. The defendant felt the advantage of having the note lie in the plaintiff’s hands. He knew well, from the strict intimacy that existed, that the plaintiff would not be urgent in forcing immediate payment; that time would be given to suit his convenience. Accordingly we see that the plaintiff rests quietly, without demanding the balance due him until the spring of 1818, and then for the first time learns the pretentions of the defendant that the note was settled.
    I need not urge to the court that the defence set up supposes a donation; that a donation in the civil law is never presumed, but must be proved, and be executed by authentic act; that receiving it as a contract, it is a shaving one, and therefore would be illegal and void. All this becomes wholly unnecessary, because there is not, it appears to me, a tittle of evidence from which to presume the existence of such a contract, much less to prove it, and because it is absolutely disproven by the plaintiff's answers to the interrogaties.
    II. As to the second point, I will not say what the plaintiff might have consented to, had the defendant been disposed to settle this business amicably. But, as he has thought proper to dispute every thing, as he has denied that any thing was due, and put the plaintiff upon his legal rights, the rules of law must decide the controversy. If in law he has a right to demand the interest claimed, then surely, I shall not be dissatisfied, if the court awards it to him. But, as I am not instructed to consent to it, under existing circumstances, the court will excuse me if I take a little time to show why I think he has not a legal right to demand it.
    The defendant alleges that "the plaintiff owed him a large sum of money for cash lent and other services and favours rendered by the respondent to him to the full amount of $1947, 50 with ten per cent interest from the 4th of June 1813, until paid as will appear by the notes, and accounts, filed with this petition and made a part thereof."
    The evidence, however, on which rests the claim for interest is contained not in the notes themselves, because they do not legally draw interest, but, on an expression in one of the plaintiff's letters which amounts, says the defendant, to a subsequent promise to pay interest. Before I examine the expression alluded to, I may justly be permitted to complain, that the defendant has never given the plaintiff any legal notice by the pleadings that he intended to rely upon a subsequent promise. He has said that this promise appeared from the notes, and accounts filed with the petition, but not a word about the interest being due by virtue of a subsequent promise. The plaintiff may therefore with justice complain of surprise, when letters not filed with the answer are produced to support such an allegation. He can hardly be supposed to be prepared to controvert by proof of the fact of a subsequent promise when he had no notice that such a thing would be pretended, until the very moment of trial: nay, when he was led to suppose that such a thing would not be pretented, by having his attention called to the notes and documents filed in the suit, as the evidence upon which the claim of interest was founded. And it seems to me that it would be a real hardship for the court to receive these letters, as evidence of a fact, which is totally out of the pleadings, and concerning which one of the parties has consequently never had any opportunity to produce evidence. But, let us examine this evidence partial as it is, and see whether it makes out the claim.
    “In making this trade and getting money, I shall directly pay you what I owe you, with good interest.”
    Does this amount to a contract? I think it does not. The first objection I make to it, as a contract, is that it is not a promise, made with the intention of obligating the party promising, which is essential to a contract. A contract is defined to be “une “convention par laquelle les deux parties récipro “ quement, ou seulement l'une des deux, promettent “ et s’engagent envers l’autre à lui donner quelque “ chose. J’ai dit promettent et s’engagent, car il n’y " a que les promesses que nous faisons avec l’inten- “ tion de nous engager, et d’accorder à celui à qui “ nous les faisons, le droit de nous contraindre à les “ accomplir, qui forment un contrat et une conven- “ tion. Il y a d’autres promesses, que nous faisons de “ bonne foi et avec la volonté actuelle de les accom- “ plir, mais sans une intention d’accorder à celui à “ qui nous les faisons le droit de nous y contraindre; “ ce qui arrive lorsque celui qui promet, déclare en “ même tems, qu’il n’entend pas néanmoins s’en- “ gager ou lorsque cela résulte des circonstances ou “ des qualités de celui qui promet, et de celui à qui “ la promesse est faite.” Again, “ces promesses “ (the kind last mentioned) produisent bien une obli- “ gation imparfaite de les accomplir, pourvu qu’il ne “ soit survenu aucune cause, laquelle, si elle eut été “ prévue, eut empêché de faire la promesse, mais edes “ ne forment pas d’engagement, ni par conséquent “ de contrat.” Pothier on obligations, 1, c. 1, sec. 1, art. 1, § 1.
    So, in the Spanish law; a contract is defined to be, “ otorgamiento que fazen los omes unos con otros, “ por palabras, e con entencion de obligarse, acci- “ niendose sobre alguna cosa certa, que deven dar “ o fazer, unas á otras.” 5 Partida, tit. 11, l. 1.
    From these authorities, it will be seen that the intention of the party to obligate himself legally is essential to the contract, that, without such intention, the obligation is an imperfect one, and does not amount to a contract. In the present case, I think, that such intention was clearly wanting; that it may fairly be inferred from the circumstances, from the whole tenor of the letter, and from the expressions themselves, that the plaintiff never intended to give the defendant a legal right to demand this interest; but that he rather meant to assure the defendant that an act of generosity was designed him, if the trade could be effected. The form of the expression shews this. The plaintiff does not say I will pay you with good interest, but “on making the trade and getting money, I shall pay you with good interest.” It is rather an intimation of generosity intended than a contract.
    Besides, was nothing necessary on the part of the defendant to perfect this contract, supposing it to be one? When a consideration is given for a promise, the consent of both parties is clearly necessary; of one party on account of the promise and of the other party on account of the consideration, and when no consideration is given, when the contract is one of beneficence, and purely gratuitous, then the express consent of the donor is made necessary by our Civil Code, 220, art. 54. If, therefore, it is any thing more than an imperfect engagement, of which I have before spoken, it must be considered as a contract in which there was some thing given or to be given, for some thing received or to be received. Admitting then, for argument sake that the expression amounts to a contract, is it any thing more than a conditional one, to pay interest on the happening of certain events? What is the consideration for this promise? Had it no consideration? It is perhaps void then, on that account. If there was a consideration, it must have been the effecting of the trade, which the plaintiff seems to have had so much at heart. Indeed, the very language is that of a conditional promise. “In making the trade and getting money, I shall directly pay you with good interest.” Does he promise to pay interest unless the trade is made? Is not the making of the trade in the very language here used a condition precedent, to the performance of what is promised? How then can it be contended that the plaintiff is liable upon this promise, when that condition never was accomplished, when the trade never was effected nor the money obtained? By what law, is this condition to be dispensed with altogether in this contract, and the promise to be converted into an absolute unconditional promise to pay interest. And that too at ten per cent. Because the expression is “good interest.” The very vagueness of the expression shews that the plaintiff had not a contract in view. When men enter into contracts, they obligate themselves to some thing more definite and precise, than what is contained in this loose expression to pay, “good interest.” What is good interest? The law has said five per cent is good legal interest; that six per cent is good bank interest, and that ten per cent is not good merely, but the best conventional interest. The court has a difficult task indeed to fix the precise meaning of the adjective good, as it relates to the per cent of interest. If we follow the rules of comparison which govern our language, it must mean the lowest interest. There five per cent is good interest as established by law, six per cent is better and ten per cent is the best. But all these difficulties are avoided by giving to the expression the meaning which the writer evidently intended, not a contract which might be enforced in a court of justice, but a general and loose assurance, that the plaintiff designed the defendant an act of generosity, if the latter would enable him to exercise it, by effecting the proposed trade; a sort of imperfect engagement which the law calls a pollicitation. Pothier on obligations, 1, c. 1, sec. 1, art. 1, § 1 & 2.
    
      Brent, for the defendant.
    The plaintiff’s claims is resisted on two grounds:
    1. That the defendant has satisfied the sum claimed, by an agreement made between the petitioner and himself, in 1814.
    2. That, if the said sum was not entirely satisfied by said agreement, he is only indebted to the petitioner in the sum of $383, 43 with ten per cent interest from 1st of February 1815; it being the balance due on said note, after deducting $1947, 50 due to the defendant by the petitioner, with ten per cent interest from the 4th of June 1814 until the 1st of February 1815, when compensation took place, and the interest on $166, 66 paid to the petitioner on the 28th of May 1814.
    The court below was of opinion that the defendant could not succeed upon the first ground, but that he could upon the second, and gave judgment accordingly, in favour of the petitioner, for the said sum of 383 dollars 43, with interest as before statsd.
    The petitioner’s counsel has stated that from this judgment both the petitioner and defendant have appealed. I beg leave in part to correct this statement in the extent it is made. It is true that the defendant did file his petition of appeal, but being anxious to put an end to litigation, he abandoned the appeal and has not thought it proper to take it up, for this appeal does not come up, at the instance of the defendant, but is brought here by the petitioner. The defendant denies that ever he brought up the appeal; it was done alone by the petitioner.
    Before I proceed to argue this cause, I must pray the court that the appeal be dismissed, because it has not be regularly taken. The law requires, that the party praying the appeal, should give good and 
      sufficient security, and that the judge granting the appeal should take the security. 1 Mart. Dig. 438.
    1. The party (petitioner) has given no security.
    2. The security was not taken by the judge.
    I. The persons, who have signed the bond filed, are as good as could be required, but the party taking the appeal did not, in the words of the statute, give them as security. In order to be a second or security, there must be a first or a principal. In this case the bond is not signed by the appellant, nor is he a party to it; of course, the persons who signed it cannot be considered as his sureties, but as principals themselves. Why does the law require that the party should have security ? The answer is direct, that he may be indemnified, and if injured have his recourse against the party, and his security. But I will ask the learned counsel for the petitioner, in what manner a suit could be brought against an appellant and persons signing a bond similar to the one filed in this case; the appellant could not be sued upon that writing, because he is no party to it, and if redress be had at all, against these persons, how could it be obtained ?
    But, put reason out of the question, the law expressly declares that “the party must subscribe the appeal bond with his securities;” for, says the statute, if the appeal be not regularly taken, “the bond, by him and his securities subscribed, may be delivered to the opposite party to be put in suit.” 1 Mart. Dig. 440, 5, IX, about ten lines from bottom and to bottom of the page, and in same book 432, 1, XIX. The very form of the bond is given.
    Was such bond given ? It was not. I challenge the opposite party to shew it. The only instrument of writing, purporting to be a bond, is one not signed or subscribed by the appellant, but only by John Brownson and John Muggat, not as securities to the appellant, but only as principals, obliging themselves to pay 250 dollars to the defendant, if Sam. Richardson does not succeed in an appeal. See bond, which ought to be in record.
    If such bond is not admitted, or if it does not appear in the record, and only the clerk’s statement of security being given, a “dimunition of the record is suggested,” and it is hoped that the court will order the record to be completed by the clerk of the court below.
    If then the appellant has not given security as required by law, the appeal must be dismissed upon this ground.
    II. The expressions of the statute allowing, appeals, are “and every judge allowing an appeal, shall take a good and sufficient security.” 1 Mart. Dig. 438.
    
      It is made the duty of the judge to take the security. No other person can do it. As well might it be contended that the judge could authorise the clerk or any other person to give judgment. The law declares that the judges shall give judgment, and can they authorize another person to do it? If so, the law declares that the judges shall take the security, and they cannot authorize another person to take it. It is the duty of the judge alone to approve the goodness and sufficiency of the security. It has not been done in this case—See the petition of appeal. The order of the judge is that the petitioner do give security in a certain sum : it does not appear that the security was ever taken by him.
    The law contemplates clearly that the security should be taken by the judge, and for that purpose requires that the bond with security should be presented with the petition of appeal—Why ? That the judge may approve the security. The act, regulating the mode of taking an appeal, leaves the form of proceeding, the same as it was formerly, to the late superior court—and the law declares the form of taking an appeal to that court, to be “that the party applying for an appeal, shall file his petition of appeal, together with one sufficient security.” 1 Martin Dig. 430. The reason of it is that the judge may approve, as I have said before.
    
      But, should the court be of opinion, that the appeal is regularly before them :
    I. In support of my first ground of defence, I will observe that the amount for which this suit is brought is for 2666 dollars 66 2-3 cents, not due until 1st February 1815.
    It appears by the notes of hand of the petitioner filed in the record that as far back as 4th of June 1813, the petitioner owed the defendant a large sum of money to the amount of 1947 dollars 50 cents, which was for money lent as will appear by the acknowledgment of the petitioner in his letters to the defendant. In the petitioner’s letter dated 1st of February 1814, he says : “I now write you to do what I have very frequently done, which is to ask a favour,” and in the same letter, after asking the favour spoken of, he says he wishes to succeed in the trade he asks the defendant to make for him, that he might pay the defendant. His words are: “then immediately I will pay you.” He also speaks repeatedly of the many favours done him by the defendant and says they will never be forgotten. In another part of the same letter, after complaining of his difficulties, the petitioner acknowledges the use he always had of the defendant’s money and regrets since he had moved to a distance from the defendant, the want of his fatherly purse. His words are: “I have but very little money to spare in travelling in these days, I assure you, since I have lost your more than fatherly purse to me.” Thereby clearly admitting that the money he owed the defendant, was for cash advanced to him in 1813, before he left the defendant, whose liberality, in supplying his wants, even surpassed the feelings of a father.
    
    In another letter of the petitioner, dated March 19th 1814, he repeats the same acknowledgments of favour, and says if the defendant could succeed in making a sale of some property for him, he would be enabled to pay him, and that the defendant “should to the end of his days have his gratitude for his godness to him.”
    In another letter dated 27th September 1815, the petitioner writes to the defendant and says : “In your last letter, you beg I will not part with your first bond to me, I have it yet and rest assured, I will keep it, until I deliver it to you, and with heartfelt sorrow it is, I know, that you should have been paid what I owe you long long before your note became due to me.”
    I also refer the court to the instrument of writing given by the petitioner, upon the 27th May 1814, to the defendant, which authorizes the defendant to sell the note, upon which this suit is brought, for about 2000 dollars, or at a discount of 25 per cent, which is nearly the same thing. For the amount then due on the note, as will be seen by a reference to it, was 2666 dollars 66 2-3, and the discount of 25 per cent, would reduce it to the same thing, and in the petitioner's letter of 17th May 1814, to Alexander Lewis of Nashville Tennessee, he “prays the said Lewis to pay 2000 dollars” to the defendant.
    From this statement of the evidence, the court must be satisfied that the petitioner and the defendant did make the agreement stated and that the full amount due upon said note, was considered by them both as settled. They will observe that the amount due to the defendant, for money lent to the petitioner from June 1813, under circumstances as detailed in the letters, was nearly 2000 dollars or at least the petitioner so considered it, as he authorized the defendant to sell the note to raise that sum, at a discount of 25 per cent, and also requested Lewis to pay that sum to the defendant—nor was it more than justice in the petitioner. The money “had been due to the defendant for a long time,” and the note of the defendant would not become due “at the time for almost a year,” and the presumed exchange which the defendant states was agreed to, if the money was received at Nashville, was not more than equal, allowing the defendant interest on his money due by the petitioner “from June 1813 to February 1815,” when the defendant's note became due—besides which the defendant is a man engaged in commerce, and his money would have been more to him, than the difference, between the two notes. This the petition shews, and, in offering the note to him due sometime since for what was then due, he only did what an honest man would have done, alive to the former favours, rendered by a friend.
    That such an arrangement was made, is clear from the petitioner’s letter of 27th September 1815, wherein he expressly promises “to keep the note until he delivers it into the hands of the defendant,” and expresses “heartfelt sorrow that the defendant had not been paid what he owed him long long before the note became due.” If the petitioner had not considered the note as settled in the way contended for by the defendant, he would not have promised to keep and deliver the note into the hands of the defendant. His expressions would have been different, such as, I will keep your first note and “deliver into your hands alone,” when the balance is paid. But why keep this first note alone, if it was not paid? Why not trade it, as well as the other notes traded to Hall, as stated in the last mentioned letter of the petitioner? Why this great attachment to this note? The reason is obvious. The defendant did not get the money in Nashville, and as agreed between him and the petitioner, he wrote to the petitioner that he would take his first note in payment of what the petitioner owed him and requested the petitioner to keep it for him, and not to pass it to any other person, which the petitioner promised to do in his last mentioned letter of the 27th September 1815, as in record. If such was not the fact, why are not the defendant's letter produced? No doubt, but the nature of this transaction would be disclosed, and the very keeping of them back, shews that the agreement was as contended for by the defendant. “And as the petitioner had notice by defendant’s answer that his (petitioner’s) letter would be produced on the trial, he ought to produce defendants.” But, says the petitioner’s counsel, if such arrangement had been made between the petitioner and defendant, why did the defendant request the petitioner not to pass his first note, which is the one on which this suit is brought? The answer is easy. The agreement between the petitioner and defendant was conditional, as will be presumed from what I have shewn before, and was only to take effect, if the money was not received at Nashville, and the defendant had, of course, to write back to the petitioner, to inform him that the money was not received, and to request him not to pass his note as he would take it himself according to agreement, it being the best he could do. For, if he had not preferred the money to the exchange, he would have taken the note in Mississippi and not gone on to Nashville to try and get the same money for his note. But, money was his object—and it was a loss and injury to him to take the note in lieu thereof. Besides which, the petitioner at that time owed him more than 2000 dollars, for his two notes, amounting to 1947 dollars 50 cents, and he was entitled by the written promise of the petitioner, contained in his letter dated 19th March 1815, to allow good interest on the same.
    Another reason can be given, why the defendant wrote to the petitioner not to pass his first note. The defendant had reasons to fear that the petitioner would do it, inasmuch as he had already done it without giving any credit upon it for what he justly owed him, and notwithstanding the agreement they had made, as will appear by the court referring to said note, in the record, upon the back of which are two assignments at different times, to different persons of the said note, which the petitioner made and afterwards it appears took the note back. This certainly was enough, if no other reason existed, for the defendant to make the request.
    The transcript of the record is filed in this court, and I have never seen it, and this argument is made from the original paper, if the clerk has omitted the two crossed assignments upon the back of this note, and the fact is denied by the petitioner, “a dimunition of the record is suggested,” and I hope this court will apply the remedy.
    
      The petitioner contends that the existence of such an agreement is contradicted by his answer to the interrogatories proposed by the defendant, and his counsel has cited authorities to show that the answer as made by him, must be taken as evidence in his favour. I admit the general principle. But then these answers may be disproved by other testimony ; by literal proof; here the writings, letters and copies disprove. Civ. Code, 316, art. 263, 2 Mart. Dig. 60, n. 9.
    
    But, perhaps the counsel for the petitioner may contend that the literal testimony, in this case, is not positive—but, I think, it is as positive as the nature of this case attended with all its circumstances could admit of. Besides which, presumptive and circumstantial evidence must be taken where there is no positive, and often is stronger than the positive testimony. The present, I think, is a case of the kind. In criminal cases, such is the doctrine and how much stronger ought it to be here. Philips' Ev. 110, 124, Index 14, 1 East. 223, 2 M'Nally E. 575 to 580.
    II. By referring to the record, it will be seen that the defendant held notes of the petitioner, to the amount of 1947 dollars 50 cents; one of the notes is dated 4th June 1813, and the other without date is for only 160 dollars. The petitioner acknowleges his signature to both of these notes, but, says the 
      small one of 160 dollars, without date, is included in the large one of the 4th June 1813. The contrary is proved, by the letters and documents before referred to. In the writing to the defendant of the 17th May 1814, the petitioner authorises Terrel the defendant, to sell his first note of 2666 dollars 66 2-3 cents, for a discount of 25 per cent—and in his letter of same date to Lewis of Nashville, he requests him if possible, to let Terrel the defendant, have two thousand dollars. If the little note of 160 dollars had been paid, why would the petitioner have "impliedly acknowleged in these two writings," that he owed Terrel about the sum due upon the two notes, and have given an order for it. It certainly would not—and the small note is as justly due as the large one—and Richardson the petitioner, in his letters, states that he had borrowed money from Terrel oftener than once—then taking it for granted that the sum of 1947 dollars 50 cents amount o both notes, was due to the defendant—I will next shew that the petitioner assumed to pay interest on it and at the rates of ten per cent.
    
    But, before I notice this, I will make one observation, as to the date of the note of 160 dollars. The court must be presume that it was of an older date than 17th May 1814, when the petitioner acknowleges he owed the defendant about the sum claimed by him in his order on Lewis at Nashville, and further, the court will presume that it was given before Richardson left the Attakapas, and whilst Terrel’s “fatherly purse was offered to him,” as the petitioner calls it, and from his letter of 1st February 1814, it is proved that the petitioner left the Attakapas previous to 1814, and during some time in 1813—so that the note, it is reasonable to suppose, was given about the same time that the large one was, which was in June 1813—and the petitioner states in his answer to the interrogatories, "that it was given before that time"—so that it fixes the time for both notes, to at least the 4th June 1813, from which time the defendant claims ten per cent interest, upon the sum due him—and to support this claim offers, in evidence, the petitioner’s letter of the 19th March 1814, in which he says when he disposes of certain property or notes therein mentioned “I shall directly pay you what I owe you with good interest and you shall to the end of my days have my most earnest and best wishes for your great goodness to me.” Here is a positive and written assumption to pay interest, good interest. From when? Why, most certainly from the time the money was due on 4th June 1814. For, when a man says I will pay you a certain sum of money without interest, he certainly means with interest from the day due, and such was the intention of the petitioner, to be gathered from all his letters; for he often expresses his regret that he had not the money to pay the defendant.
    But, says the petitioner’s counsel, the expression good interest only means five per cent. I differ in opinion with him, and in order to ascertain what the petitioner meant by good interest, we have only to refer to his letters, and to common parlance—when a man says lend me some money and I will pay you good interest, or when a debtor says indulge me for a year and I will pay you good interest, or when a person says to his friend who has advanced him money in his difficulties and is unable to return it when called for, as soon as I can command money, you shall be immediately paid with good interest and my gratitude for your frequent favours, most certainly such man, such persons mean not the lowest interest the law gives, but intend to act justly, liberally and to give an interest that would be an inducement, or at least an indemnification for the favour or the delay—that such were the intentions of the petitioner is clear from the manner in which he expressed himself, and after the many favours he had received from the defendant, I think he asks for this forced construction upon what is called good interest, with a very ill grace. The interest given for money lent in this state is never less than ten per cent.
    
    It is clear then that the petitioner owed the defendant 1947 dollars 50 cents, with ten per cent interest from the 4th June 1813, until 1st February 1815, when the defendant’s note for a larger sum became due, and that according to the laws of this country a compensation took place to the amount of the principal and interest due to the said 1st February 1815. Civ. Code, 298, tit. Compensation.
    
    Upon the 1st February, the principal due to the defendant was 1947 dollars 50 cents and the ten per cent interest on that sum from 4th June 1813, amounted to the sum of 2283 dollars 18 2-3 cents, including ten per cent interest upon the sum of 166 dollars 66 2-3 cents, advanced by the defendant on the note, upon the 28th May 1714, as will appen by a reference to said note—the said sum being credited thereon by the petitioner—and which said sum being justly due to the defendant upon that day, from the petitioner, was deducted from the sum of 2666 dollars 66 2-3 cents, claimed by the petitioner and judgment was given for the sum of 383 dollars 48 cents, the balance due to the petitioner, with ten per cent interest from 1st February 1815, until paid.
    The judge, in giving judgment for this sum, was governed by commercial and legal calculations, made in all such cases—he first calculated the interest upon the 166 dollars 62 2-3 cents, advanced by the defendant upon the 28th May 1814, as receipted on 
      said note by the petitioner, and then the interest due upon the two notes of the petitioner from 4th June 1813 to 1st February 1815, and adding all together struck the balance due to the petitioner for which judgment was given—this, certainly, was fair, just and legal—nor ought the petitioner to complain of it.
    
    The petitioner contends that the judgment ought to be for a greater sum—and that the defendant is only entitled to a deduction of 1787 dollars 50 cents, the amount of the one note, and that without interest—after having read the petitioner's letters, the court must be satisfied that the petitioner does not act justly by the defendant, after acknowleging his frequent favours, loans, &c., he wishes to put him off without even allowing interest. If any thing could prejudice so enlightened and impartial court, as the present, surely such an ungenerous attempt would have its weight. But I turn from it, and will shew, from written acknowlegements of the petitioner, that this never was understood by him, and that until this suit was brought, he never conceived that the defendant owed him as much money as he now aks for, but on the contrary, long after the note was due on 16th October 1815, he wrote to Brent, who signed the note with the defendant in the following words: “Terrel’s (defendant) first bond I shall hold for him as” “I owe him nearly the amo
      
      unt of it." Here are the declarations and avowals of the petitioner, after the note had been long due, when no suit appeared to be contemplated that the defendant had ready paid the note that the "petitioner himself nearly owed him" the amount of the note which is 2666 dollars 66 2-3 cents. After this, how can the petitioner with any face, contend that there is a large amount due to him, according to his argument, with the interest due on his note of upwards of 1000 dollars, at the least 717 dollars 16 2-3 cents without ten per cent interest from 1st February 1315? If this sum with ten per cent interest had been due, would the petitioner have written upon 16th October 1815, that there was but a small balance due, that the "amount of the note was nearly paid to him," as he "owed the defendant nearly that sum?" Most certainly not, and this avowal of the petitioner, in the letter of 16th October 1815, shews that he considered the balance due but "a triffling, not more than the judgment rendered," if as much.
    
    This avowal of the petitioner clearly shows that the small note of 160 dollars never was included in the large one, and when united with the order of 2000 dollars on Lewis and other circumstances, must set aside the answer of the petitioner as to this fact.
    I deem it unnecessary to answer the various points 
      embraced in the argument of the counsel for the petitioner—I have answered only such as I deem connected with the question before the court. His arguments and authorities as to donations have no relation to the present facts in issue—as to the complaint of surprise by the introduction of the letters—he had notice of the letters, for they "are referred in the defendant's answer" with which they were filed, as evidence, upon which the defendant relied—even if they were properly received, and good evidence. If they were not, “the petitioner ought to have excepted upon the trial.” It is now too late. He himself has attempted to use them as evidence against the defendant.
   Martin, J.

delivered the opinion of the court. This action is brought on a promissory note of the defendant for 2833 dollars 33 cents, dated June 3, 1813 and payable in July 1815. He pleaded the general issue, and further, that he had long satisfied the plaintiff, for the said note—that, long before its execution, the plaintiff owed him 1947 dollars 50 cents, with ten per cent interest from the 4th June 1813, for cash lent and services and favours rendered: referring to two notes of the plaintiff of that date, one for 1787 dollars 50 cents payable on demand, the other for 160 dollars payable on demand, without a date, and written with a pencil, and the plaintiff agreed with him that if the said sum could not be procured from A. Lewis of Nashville, the note, on which the present suit is brought, would be considered as paid and satisfied, and the plaintiff gave him a power to sell said note—which not being able to effect, he wrote he took said note for himself and wrote to the plaintiff to keep it for him.

The notes are annexed to the answer and the plaintiff was called upon to answer on oath.

1. Whether they were not in his hand writing and subscribed by him ?

2. Whether he did not agree with the defendant that, if he could not sell the note sued upon for the sum mentioned in the power, or if the money could not be obtained from A. Lewis, the note would be considered as satisfied and he would keep the sum for the defendant and whether he did not offer to the defendant to exchange the note sued upon for what the plaintiff owed him ?

3. Whether, when he gave power to the defendant to sell the note, he did not consider that the latter might, if he thought proper, take the said note for himself, and consider himself the purchaser and owner of it, on the terms at which he was empowered to sell it: and whether the defendant did not write him, that he had been unable to sell the note and desired that he might keep it for him ?

The power alluded to, in the answer and interrogatories is annexed thereto. By it, the defendant is authorized to sell his bond, payable to the plaintiff, in June 1815, for 2000 dollars and upwards, at 25 per cent discount per annum, and the plaintiff promises to furnish the bond, on application after the sale.

In answer to the interrogatories, the plaintiff says that he presumes the notes and power, annexed to the answer, are in his own hand writing and subscribed by him : as he gave two notes for the sums mentioned in those referred to: the small one having been included in the other, and to be given up on demand or cancelled ?

The second interrogatory was answered in the negative ; the plaintiff adding that the object of offering the note for discount, was to pay the note of 1787 dollars 50 cents, and the balance was to be received by the plaintiff from the defendants on demand. It was understood the plaintiff was not to part with the defendant’s note, but to collect it from him.

The first part of the third interrogatory was answered in the negative ; as to the second, the plaintiff declared that the defendant wrote to him from Nashville, June 14, 1814, that the money was not procured and requested him by letter from Brunswick, December 13, 1814, to retain the note in his hands : which two letters, with one from New-York, of November 20, 1815, are the only communications received by the plaintiff, from the defendant from the time the power of attorney was given till he was threatened with a suit.

The district court, considering that the law and evidence were in favour of the plaintiff, gave judgment against the defendant for 383 dollars 48 cents, with interest at 10 per cent from February 1, 1815.

The statement of facts consists of the notes referred to in the petition and answer, and of several letters from the parties.

Both parties prayed, obtained and gave bond for an appeal, but the record was brought up, by the plaintiff only ; the defendant’s counsel disclaiming his appeal.

The defendant prays that the plaintiff’s appeal be dismissed, because there was not any bond given by the plaintiff or taken by the district judge.

The defendant’s counsel infers that the bond was taken by the clerk and not by the judge, from the order of the latter, on the petition of appeal, that the appeal be granted on the petitioner giving security as directed by law. The record shews that the bond was given, which implies that it was taken; and we are to presume, in the absence of any proof of the contrary, that it was taken by the person, whose duty it was to take it.

The law made it the duty of the judge to take security for the costs, and the appellant is bound to no more. To give security for costs is to secure the payment of costs. This certainly may be done otherwise than by executing a bond with a surety; it may be done by the deposit of a sum of money, by that of bank notes, if there be no doubt of the solvency of the bank. In the present case, it was done by the deposit of a bond, executed by two individuals, the solvability of whom is not disputed, by which they bound themselves to the appellee, in the sum ordered by the district judge, for the performance by the appellant of the decree of this court. Is not this a security for the payment of such costs as this court may decree the appellant to pay ? We believe it is. Had the appellant executed the bond, with one of these individuals, the appellee would not complain. Yet his security would be less: as the appellant would not be bound to less nor less effectually ; for a promise, to pay what a court will decree one to pay, adds nothing to the obligation.

The defendant declining to be considered as an appellant, we have only to enquire whether too much was not allowed to the plaintiff. This perhaps does not dispense us to inquire whether, as he contends, the plaintiff did not agree that the defendant’s note should be considered as satisfied. For, if we were satisfied of that, it would be clear that we could not amend the judgment of the district court, so as to allow to the plaintiff a larger sum.

The defendant's note is not denied: we find nothing in the plaintiff's letters, which proves that it was to be considered as paid or satisfied by the defendant's claim on the plaintiff, nor that the plaintiff made any absolute promise to pay interest, or that the contingency, on which he promised to pay interest, happened.

The plaintiff is clearly entitled to the amount of the defendant’s note, 2833 dollars 33 cents, from which 166 dollars 33 1-3 cents, which were paid before the note became due, are to be deducted, but without the allowance of any interest. The defendant is further entitled to a credit for 1787 dollars 50 cts. for the amount of the plaintiff’s note, on which nothing authorises us to allow him any interest. These two sums make that of 1954 dollars 50 cts. to be deducted from the amount of the defendant’s note, which leaves a balance of 879 dollars 17 cents, which the plaintiff is entitled to recover, with interest from the date of the note, at ten per cent a year, as stipulated in the note, till paid.

The defendant having resorted to the plaintiff’s conscience to establish the note of 160 dollars, as well as the large one, and the plaintiff having sworn that the amount of this first note was included in that of the other, and that the defendant promised to cancel or surrender it, the latter must be concluded by the plaintiff's answer, which perhaps derives verisimilitude, from the circumstance of the note being written with a pencil and being without a date.

It is therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the plaintiff recover from the defendant the sum of eight hundred and seventy-nine dollars and seventeen cents. $879 17, with interest at ten per cent per annum, from February 1, 1815, till paid, with costs of suit in both courts.  