
    *Smith, Ex’r of Williams, v. Robert Walker.
    [Monday, October 16, 1797.]
    Bill of Exceptions. — [If the bill of exceptions state, that there was no other proof, except what went to prove the bond, sued on, paid, the Court will not enquire whether other evidence was improperly rejected.]
    The appellee, Robert Walker, was security for Edward Walker since deceased, in a bond to Jones Williams for the payment of 3721. This bond bore date on the 3d day of December, 1774. In October, 1774, Edward Walker bought a tract of land from Williams for the sum of 1411. but did not pay' the purchase money and on the 15th day of May, 1778, he gave his penal bill for the same in these words:
    “For value received this ISth day of May, 1778, I promise to pay or cause to be paid unto Jones Williams, the just and full sum of one hundred and forty-one pounds current money of Virginia on demand, with lawful interest. I bind myself, my heirs, executors and administrators in the penal sum of two hundred and eighty-two pounds like money, as witness my hand and seal.
    Edward Walker, (seal.)”
    Robert Walker is executor of Edward Walker, who made some small payments in his life-time, and since his death Robert Walker has paid several considerable sums, but it is not stated in the record whether those payments were made out of his own money or out of the assets of his testator; neither is it stated in the record that he gave any particular directions with regard to the application of them at the time of the payments. But Williams and his agents credited some on one bond, and some on the other, in the form of receipts. About the year 1784, Walker and Williams called on Colonel Fisher to take a list of the payments, which he did, and credited the bonds against it, reducing that in 1778 by the scale, but it did not appear that this reduction by the scale was with Williams’ consent. Nor is it stated in the deposition that the parties professed themselves satisfied with the account as stated, though it is said that the list of payments was 29 taken from ^Williams himself. In the margin of the list, opposite to one of the payments are the words “not on the bond.” Williams afterwards dj'ing, Smith as his administrator, brought an action upon the . bond to which Robert Walker was security; who pleaded payment, and on the trial of the issue gave Fisher’s deposition aforesaid in evidence. To rebut which, the plaintiff produced the other bond, and offered to prove by a witness, that it was given for the purchase of the land aforesaid, and that Edward Walker at the time of executing it promised to pay interest thereon from October 1774, and thereby to prove that it v\as for a specie debt. The District Court of Petersburg rejected the evidence, and the plaintiff excepted to that opinion. The bill of exceptions stated, that the testimony contained in it was all the evidence in the cause “except what proved the bond on which the suit was brought paid, and except the deposition of Daniel Fisher above stated.” The Jury found a verdict for the defendant and the Court gave judgment accordingly. From which judgment the plaintiff appealed to this Court.
    
      Paper Money Bonds — Parol Evidence. — Although parol evidence cannot regularly be admitted to show a fact not contained in the bond, yet there is a diversity of sentiment amongst the judges, whether it may be done in paper money bonds, under the scaling act. Smith v. Walker, 1 (Jail 28. The principal case is cited in this connection in Dearing v. Rucker, 18 Gratt. 448; Omohundro v. Crump, 18 Gratt. 705; Meredith v. Salmon, 21 Gratt. 774.
    
      Call, for the appellant.
    It is evident that if the second bond be taken as a specie debt, that the bond on which the suit is brought was not paid; because as the obligor had given no directions about it, the obligee had a right to apply the payments.
    But it is not important to be considered at this time whether any part of the money was reatly due, or how much, but the plain abstract question is, whether the plaintiff had a right to the testimony which he offered. For, if he had a right to the evidence, and was not permitted to use it, the Court below did wrong in rejecting it, and therefore the judgment is erroneous and ought to be reversed.
    The question with regard to the plaintiff’s right to make use of the evidence involves two others.
    First, whether obligees in general have a right to this kind of evidence, where the bond was given during the period for scaling paper money?
    ^Secondly, whether the plaintiff in this particular action, had not such a right?
    1. There is a difference between the contract itself and evidence of the contract. For, the contract may be of one date, and the evidence of the contract may be of another date. The contract may be in the year 1774, and the evidence of that contract may be dated in 1778. This is the case in all actions of Indebitatus Assumpsit, where the contract which is the original purchase of the articles, is always laid to be anterior to the promise which is but an evidence of the contract.
    There is another difference under the Act of Assembly, [Nov. 1781, C. 23, 10 Stat. Larg. 47l,] between contracts prior to the first day of January, 1777, and those entered into between that day and the first day of January, 1782. This is a difference which the Legislature seem anxiously to have maintained, and therefore is to be strictly regarded. Upon this distinction, contracts between 1777 and 1782, are liable to be scaled, whilst those anterior to that period, are not subject to the scale.
    To apply these observations:
    According to the first of the foregoing differences, the contract here was in 1774; for that was the time of the purchase, and not in 1778, when the bond bears date.
    Because the bond is not the contract, but only the evidence of the contract. For, the original purchase was the contract, and the bond is only a proof of it.
    Of course, according to the second of those differences, above mentioned, this bond, of 1778, was not liable to be scaled; because it was a contract entered into prior to the year 1777.
    Suppose the bond in so many words had said, with interst from the year 1774, then, according to the universal practice, the evidence would have been allowed. This is frequently done in the District 31 *Courts, and I have been informed it has been so decided here.
    
    Now these words are only an evidence of its being a specie debt, and do not necessarily prove it to be so. For there might have been a contract for paper money ex • pressed in those very terms. A man might in 1778, have contracted to have paid an hundred pounds with interest from 1774, in paper money, and the contract would have been good.
    But, if collateral evidence would be admissible in that case, in order to prove the real contract, it would seem to be as reasonable in any other, provided it did not contradict the bond. Therefore, as there is nothing in the evidence here, which is contradictory to the bond, I conclude that the evidence was proper in the present case.
    Again, the bond evidently involves the first contract. For, if a suit were brought upon the first contract for the purchase money agreed to be given for the land, the defendant might plead that a bond had been entered into for it; and the plaintiff could not reply that the bond would be less, by reason of the scale, than the original purchase money.
    Let the bond then be the date; and still it is a specie debt. Because it includes a specie contract and extinguishes the original promise.
    But, if it be true that the bond destroys the first contract, surely the converse of the proposition must be equally true. If the obligor may say that it swallows up the specie contract, the obligee must have an equal right to insist upon it as an evidence of that specie contract which the other side will have it to contain. It must prove the same fact for the plaintiff as it does for the defendant. If it establishes on the part of the defendant that the original specie contract is extinguished by the spe32 cialty, it must at the same *time establish on the part of the plaintiff likewise, that it was given for a specie debt. Its being introduced on this or that sideof-the question, can make no difference as to the existence of the fact. It is impossible to destroy the reciprocity. Because, the moment it is said that no action can be maintained for the original contract itself on account of the higher security being taken for it, that moment it follows that the higher security itself, is but a conversion of the first contract into another form; and therefore, that the plaintiff may insist on the effect of it although its shape be changed. Ror, it operates as a merger; and the first contract is infused into the second; which is but'the representative of the first, and contains all its essence and qualities.
    Therefore, upon general principles, whether the bond be taken as a mere evidence and security for the contract, or whether it be taken as the contract itself, it was still a bond for a specie debt and not subject to the scale of depreciation.
    But, to consider the case more closely upon the act of Assembly itself.
    If the bond be the date of the contract, still by the very words of the act of Assembly the. evidence is admissible.
    The preamble states that' paper money had become an improper standard to adjust and settle debts and contracts, and that the people will suffer for want of a rule for liquidating and adjusting them, so as to do justice as well to the debtors as. the creditors. Which of itself implies an intention in the. Legislature, that the consideration of the contract should be enquired into. Ror, an ascertained debt would need no liquidation or adjustment; and, therefore, that expression necessarily shews the intention that an investigation was - to be had as well for the benefit of the creditor, as. of the debtor.
    But this is further manifested by the enacting clause, which directs that 33 all debts and contracts *entered into or made in the current money of. this State or of the United States, shall be liquidated, settled and adjusted, by the scale, except contracts for gold and silver coin, tobacco, or any other specific property. Which undeniably proves that paper money contracts only were to be scaled; and that when the contract was not for paper money expressly, that it should not be reduced by the scale.
    This, then, indispensably impels to the enquiry, whether the contract was for paper money or specie; because its being scaled or not depends upon its being the one or the other. Evidence, therefore, must be received to explain it; for it' can be ascertained in no other manner.
    But to this the rule of law, that parol evidence shall not be received in opposition to the deed, may perhaps be objected; and it may be said that the bond bearing date within the period of the scale, and being for current money, shews that it was. for paper money.
    This, however, would not be correct. .Ror currency is an equivocal word and comprehends two distinct species of money, either of which satisfies the term. A tender in either would have been legal. Or a payment either in specie or paper money before the passing of the law would have discharged the bond. Therefore, current money was as applicable to gold and silver coin as to paper money.
    But, if the expression includes two characters of different qualities and properties, it is clear that parol evidence may be received to explain them. Ror it is then in principle no more than the common case of legacy to the testator’s son A; he having two of that name, in which case parol evidence is admissible in order to shew which of the two was meant. Which is agreeable to a known rule upon the subject. Ror, where-ever evidence creates an ambiguity, there evidence may be used to explain the ambiguity. Therefore, when it appears that the expression comprehends two char-34 acters, to ^either of which it is equally applicable, an ambiguity arises, which ambiguity must' be explained by shewing which pf the two was intended.
    Besides, the known distinction is between evidence which contradicts, and that which explains the deed; the first is not admissible, but the other is. Now, here the evidence was not contradictory to, but was entirely consistent with the expression, and therefore admissible upon the distinction.
    I do not mean to say, that parol evidence may always be received to explain words. Ror, where the question is upon' the meaning of the words, qua words as the phrase is, there it cannot be received; but where the question is with regard to quantity and the object of the words, there parol evidence may be received. Now quantity and object constitute the whole enquiry in these cases; and therefore, according to the rule, the evidence may be received.
    All these observations are assisted by the words “liquidated, settled and adjusted,’’ in the enacting part of the second section; the force pf which in the preamble has been already mentioned; and the repetition of them in this part of the act shews that the Legislature intended every thing to be thrown open to enquiry again; because those words relate to unsettled affairs and not to ascertained quantities freed from computation or circumstances.
    But, this which is so clear upon'principle and the plain interpretation of the act, is rendered more manifest still by the last clause of it: which gives full jurisdiction and discretion to the Court to make the enquiry.
    Ror, the expression that 1 ‘where other circumstances arise which, in the opinion 'of1 the Court below whom the cause is brought to issue, would render a determination agreeable to the above table unjust; .in-either case it shall and may be lawful for the Court to award such judgment as to them shall appear just and equitable,’’ nec- | ' essarily leads to the reception of parol '35- evidence. Because, before *you can ■ determine on the circumstances, you must know them; and in order to know them, you must receive evidence to prove and ascertain them; which inevitably lets in the parol proof; for the facts cannot be learned without, and therefore it becomes unavoidable.
    It may be likened to a case where the writing does not, through fraud or mistake, recite the contract truly. In which case, prima facie, the writing expresses the contract rightly, and is not liable to be encountered by parol evidence; but, because the law had said that fraud or mistake should be sufficient ground to impeach the deed, parol evidence became necessary to establish it; and, therefore, has been constantly received.
    So here, when the law says that circumstances shall control the deed, it in effect says, that parol evidence, with regard to those circumstances, shall be received ; because, it is impossible to come at the circumstances without the proof.
    The judgment is to be, according to the very right and justice of the case, upon hearing all the circumstances. Therefore, when the defendant insists upon lessening the plaintiff’s debt below the natural import of the words, he must shew a reason for it. He will not have done enough by saying, that the bond bears date during the existence of paper money; for that, we have already seen, does not necessarily prove that it was for a paper money contract. He must, therefore, satisfy the Court that it was so. But, if the defendant goes into evidence of that fact, then it is clearly competent to the plaintiff to encounter that evidence with testimony shewing the contrary ; and that it was for a specie debt.
    I say, when the defendánt insists to have it lessened, which is correct; for the act does not say that the debt shall, ipso facto, stand reduced to a certain sum; but only that it shall be liquidated, adjusted and settled according to a certain standard.
    Which words liquidated, adjusted and 36 settled, suppose ‘some further act, and seem to render an application for the adjustment indispensable; although in practice, it is, of course, to do it, where no opposition is made, from a presumption, that the other side would oppose it, if it were otherwise.
    Of course, then, it is but the common case of rebutting an equity. The whole tenor of the act leads to this. For, the act ascertains nothing of itself with regard to any particular demand, but merely establishes a scale, which may' or may not be resorted to, according to circumstances and the direction of the Court.
    I know it has sometimes been said, that the act was made for the benefit of the debtor only, and not of the creditor.
    But this would be contrary to justice. To say, that one side should be more favored than the other, is a position too monstrous to be maintained ; especially on a law which professes to do justice to both parties, without leaning to either, throughout every section of it.
    But the words “other circumstances, &c.” are plainly more applicable to the creditor than the debtor; because the latter was expressly provided for by the two preceding members of that sentence.
    It is not important, however, to insist upon such a circumstance. The true construction is, that the provision was intended for both. The words are the most unlimited in their meaning that can be; for the Court, under all the circumstances, are to give “such judgment as to them shall appear just and equitable.”
    2. This case, though, is stronger than the generality of cases.
    For the agreement was to pay interest from 1774; which was binding, and an action would have lain upon the promise, or a Court of Equity would have enforced a specific performance of it. The plaintiff, therefore, had a right to insist upon 37 the '^agreement, at least as to so much of the debt, as the additional interest would have created.
    Again, the bond is payable on demand “with interest” without stating the time of its commencement. Now as the word interest was unnecessary, for the bond carried it of course, it shews that something was meant by the insertion of it. And as no commencement is mentioned, it is fair to infer that the indefinite expression was to be applied to the first contract, which was now for the first time reduced to writing.
    The payments are endorsed in the form of receipts,, to which if the obligor or his executor was present, it amounted to a written agreement, that the bond was payable in specie, and the over-payments shew the same thing.
    Again, the witness might have proved a fraud or mistake in making the bond, as that it was to have been inserted that the interest was to be paid from 1774, but that it was omitted through fraud or mistake, which would clearly have entitled the plaintiff to the benefit of the specie contract. The opinion of the Court, therefore, which prevented this enquiry was wrong, and an injury to the plaintiff.
    From all which, I infer that the plaintiff had a right to the evidence, and then the quantum of the demand was not a question, for the Court deprived him of a right which he had a clear title to demand, and that was error.
    But if it were material to go into the evidence, it would be manifest, that if this were a specie debt, then the payments which the plaintiff had a right to apply as he had received no directions as to the application, did not amount to both debts.
    Wickham, contra.
    I have considered the case under a different point, of view from that which Mr. Call .has taken of it, and therefore shall not pursue his train of argument. The defendant was security to one of these bonds 38 and not to the other; he has *made payments more than sufficient to discharge his own bond; but a stratagem has been used in order to apply them to the other, and render his own unsatisfied. The question of the scale don’t apply to the case: but if it did, although I am not prepared to speak upon the act, I should doubt Mr. Call’s construction. I have heard that some of the Courts have refused an enquiry into the circumstances, and that they were of opinion that the law was made for the benefit of the debtor, and not of the creditor. If the defendant on the present occasion be a gainer, on other occasions, he may have been a loser. So that in attempting to do justice to his creditor in this instance, he may in general be injured. Which proves that it is better to stick to the letter of the law and the scale established by it; as that mode will be more equal in its operation.
    On common law principles, the enquiry contended for is not allowable; for the rule there is, that parol evidence shall not be received to contradict a deed. This bond is “for value received this ISth day of May, 1778, I promise to pay &c., one hundred and forty-one pounds current money of Virginia, &c. ” which imports that the value was then received, and therefore evidence to ■ shew that the contract was in 1774, would be in express contradiction of the words of the bond, which the rule supposes cannot be done.
    It is said, however, that parol evidence may be received, because the words current money are equivocal; but it means paper as well as specie; and as the former is perfectly consistent with the other parts of the bond, the case is to be governed by the general directions of the act.
    A distinction was attempted, however, between an evidence of a contract and the contract itself. But that cannot apply in the case of a written agreement; for at law the bond is the contract. The declaration always states the bond and not the contract.
    A declaration which should state the 39 ^contract would be erroneous. However, I repeat it again, that the particular terms of this bond obviate all difficulties, and prevent all enquiry into the circumstances.
    As to the last clause of the act; the Court, notwithstanding that clause, are bound by the ordinary rules of evidence. The judgment must- always be secundum probata et allegata; but this sort of evidence would be extraneous to the issue, and therefore no ground of decision.
    Be the construction of the act though how it will, the decision of the Court in this case was clearly right. The defendant was only a security, paid most of the money, and knew not that the other was a specie debt. The presumption is, that when he was making payments, they were upon account of his own bond first. Equity is not usually set up against a security; but here the Equity was against the plaintiff. If he recovers, the defendant must pay the money out of his own pocket; but if the judgment be affirmed, the plaintiff may sue the other bond, and if there be assets and he has a right to prove the specie debt, he may recover against Edwards’ estate, which is the proper fund to pay it.
    It was said that if the endorsements were made in presence of the defendant, he would be bound; but nothing of that kind appears; and the Court will not presume it.
    The over-payment arises from the false manner of calculating the interest; and as to the agreement for interest from 1774, the defendant knew nothing of it.
    
      
      Pleasants v. Bibb., 1 Wash. 8, not published at the time when, this case was argrned.
    
   PENDLETON, President.

Whether parol evidence of a fact not contained in a bond, can be admitted at law in a suit on that bond, is a question not to be stirred at this time of day, notwithstanding the ingenious distinction of the counsel between a contract and the evidence of a contract; I mean as a general question.

^Whether it may be done in paper money bonds under the last section of the scaling act, is a question as difficult as it is important; and was it necessary to decide it, the Court would have referred it to a fuller Court, especially as we know there is a diversity of sentiment among the Judges on the question.

But we unite in opinion that it is not only unnecessary, but improper, to enter into the discussion, in this suit.

The bond in suit is a ' specie bond, on which Robert Walker is sued in his own right; and the other bond is given by Edward Walker his testator only; the payments are all in specie, except 971. 9s. 3d. paid in 1776 and 1777; which can’t be applied to the second bond, being prior to its date, but are to stand at their nominal amount by the express words of the scaling act.

■The question is, whether the second bond be specie or paper? A question which was collaterally brought on, for the sake of applying to that, the payments which the defendant claimed, as discharging his bond. But, if it was proved by evidence which don’t appear, that the debt sued for was paid, the evidence offered was immaterial; and the Court were right not to suffer the jury to be embarrassed or inveigled by it.

That we are to take this to have been so proved upon the bill of exceptions, we have no doubt. After stating John Williams’ evidence, and the use intended to be made of it, it goes on “and this being all the evidence in the same, except what proved the bond on which this suit was brought to be paid, and except Fisher’s deposition, the counsel excepted, &c.’’ I mentioned this passage to the counsel; he said it was an inaccuracy which had struck him, and did not attempt an explanation of it; although he must have been sensible, that they were too important to have been inserted cur-41 rente calamo *without a meaning.

They could not apply to Williams’ proof, since to that they are stated as an exception: nor to Fisher’s deposition, because that is specially excepted; they, therefore, can only mean what they import, namely, that other satisfactory proof was made that this debt was paid.

On that ground, the Court affirm the judgment of the District Court.

If Mr. Smith chooses to commence a suit on the second bond, the question on the scaling act will be brought on ; and if he is let into the proof, it is obvious that many other circumstances will be proper subjects of enquiry, besides those mentioned by this witness, in order to an equitable decision. I cannot avoid saying, however, that this creditor seems to have less reason to complain of injury from paper money, than any which has appeared before the Court.

As to a bar by the endorsement on the second bond, Eisher’s deposition recorded, states the whole payments; and on a suit on this bond, it will be a proper enquiry whether by those both debts are paid.

Judgment affirmed.  