
    Bigelow against Benedict and another.
    Where the securities given for the mortgage debt, were described, in a bill of foreclosure, as five promissory notes, four for the sum of one hundred dollars each, and one for the sum of two hundred dollars; and the condition of the mortgage deed described them as four notes for the sum of one hundred each, and one for the sum of two hundred dollars; it was held, that there was no variance, the word “ dollars” being understood in the former clause of the condition.
    Where A. owed a debt to B; C. became the surety of A. on notes given for such debt, and also mortgaged land to B. as collateral security, A. being one of the subscribing witnesses to such deed; and JJ., on a bill of foreclosure brought by him, called A. to prove the execution of the deed; it was held, that A. was a competent witness for as his interest was either balanced, or against the party calling him.
    This was a bill in chancery for a foreclosure. The bill stated, That on the 8th of December, 1818, Timothy Benedict and Isaac Tucker were justly indebted to the plaintiff in the sum of 600 dollars, for which they gave the plaintiff five promissory notes, four for the sum of 100 dollars each, and one for the sum of 200 dollars, all payable, by the makers jointly and severally, to the plaintiff, within three years from the date, with interest annually; and that to secure the payment of these notes, Benedict, on the same day, mortgaged to the plaintiff certain pieces of land; the condition of the mortgage deed being, that whereas said Benedict and said Tucker had, on the day of the date of said deed, given to the plaintiff their five promissory notes, made payable as before described, if they, or either of them, should well and truly pay each and all of said notes, according to the tenor thereof, said deed should be null and void, otherwise remain in full force. Benedict and Tucker were both made parties.
    On the hearing, at Litchfield, August term, 1825, before Peters, J. the plaintiff offered in evidence a deed of the lands described in the bill, duly executed, by Benedict, to the plaintiff the consideration expressed therein being 600 dollars; to which deed there was the following condition: “ That whereas the said Timothy Benedict has, this day, given and executed to the said Benjamin Bigelow five notes of hand, which notes are given and executed, by himself and Isaac Tucker, binding themselves, jointly and severally, to pay to him four notes for the sum of one hundred each, and one note for the sum of 200 dollars, all payable within three years from the date, with interest to be paid annually ; now, if the said Timothy or Isaac, or either of them, shall well and truly pay each and all of said notes, according to the tenor thereof, then this deed is to be null and void, otherwise to remain in full force.” The notes were given for the proper debt of Tucker; and Benedict signed them, and executed the mortgage deed to the plaintiff, for Tucker s benefit; Tucker, at the same time, securing him by mortgage. The only witnesses to the mortgage deed from Benedict to the plaintiff were Tucker and another person. The plaintiff to support his claim, offered in evidence four notes of hand, for 100 dollars each, and one for 200 dollars, dated the 8th of December, 1818, signed by Benedict and Tucker, and payable by them, jointly and severally, to the plaintiff within three years from the date, with interest annually. To the admission of such deed and notes in evidence the defendants objected; but the court admitted them, and passed a decree in favour of the plaintiff The defendants thereupon moved for a new trial.
    Litchfield,
    June, 1826.
    
      P. Miner and J. W. Huntington, in support of the motion,
    contended, 1. That the deed offered in evidence was inadmissible, on account of a variance between the condition and the statement of it in the plaintiff’s bill. The bill counts upon a mortgage deed with a condition, stating the execution of four notes of hand, by the defendants, of 100 dollars each. The deed offered in evidence describes four notes for the sum of one hundred each; omitting the word “ dollars.”
    In relation to all written documents exhibited as evidence, the court are to decide upon the words which they contain. They are not to supply or substitute words, and thus make contracts for parties. What is the legal construction of the terms used, is the only enquiry ; not what it would be, were different terms used. In the present case, the court are called upon to say, that the import of a note given for one hundred-without any denomination of money, or collateral article superadded,-is a promise to pay 100 dollars. The writings shew, that the obligor has not thought proper to bind himself to pay any specific sum, in money, or in any collateral article ; and if the court can supply what they deem an omission, they may as well insert pounds or guineas, as dollars.
    It may be said, that these notes were given for something; and therefore, that construction, which makes them notes for nothing, must be wrong. In the first place, this is a petitio principii. If nothing was inserted, which was to be paid, then they were given for nothing; and such is the legal construction of all such instruments, while they remain thus uncertain. In the next place, if something was promised to be paid, it does not follow that it was dollars, or even any description of money. The court cannot infer from the utter silence of the obligor in relation to the duty he was to perform, what that duty was.
    Again, it may be said, that the condition specifies, that these notes are to be paid ; and the inference is, that dollars were to be paid. First, this is a non sequitur, for the reasons already suggested. Secondly, the notes were indeed to be paid ; but the condition also shews, that they were to be paid according to their tenor; and what their tenor is, must be ascertained from inspection. This does nothing to help the plaintiff on towards his conclusion.
    It may be further said, that the word omitted in the condition was dollars, because it is so expressed in the notes, to which the condition evidently refers. But upon the question now before the court, we have nothing to do with the notes. The single enquiry is, whether an averment in the bill of the condition of a deed specifying four notes of 100 dollars each, is supported by a deed containing a condition describing four notes of one hundred each. A clearer case of variance between the allegation and the proof can hardly exist. Waugh & ux. v. Bussell, 5 Taun. 707. S. C. 1 Marsh. 214. 311. Stanton v. Button, 2 Conn. Rep. 527. Pendleton v. Button, 3 Conn. Rep. 406. Powers & al. v. Ware, 2 Pick. 451.
    2. That the deed was invalid, not being duly attested. Both the subscribing witnesses must, either at the time of attestation, or at the time of trial, be competent to testify. This is apparent from the object of the statute, and from the import of the term witness. An attestation by persons who cannot testify, is, to every practical purpose, no attestation at all: such persons are not witnesses.
    
      That Tucker was interested, is incontrovertible. He was the debtor ; Benedict being only his surety. Tucker was bound to indemnify Benedict in respect of the deed, and all its consequences. He is a party to this bill; and the decree is against him. If he be called to invalidate the deed, he is interested to accomplish that object. If he be called to establish it, this is against his interest, and he cannot be compelled to testify.
    
      Benedict and T. Smith, contra,
    contended, 1. That there was no variance between the notes as stated in the bill and as described in the condition of the deed. So far as any description of the notes is given in the deed, it conforms exactly to the description in the bill. All that can be said, is, that the notes arc imperfectly, or not fully, described in the deed. The consideration of the deed is 600 dollars, the exact amount of the notes. The dates and times when payable, are all the same; and one of the notes is fully set out. If the words “for one hundred each,” are to be rejected as insensible, then the condition given in the deed would be to stand as security for five notes of that date, payable in three years ; and if that had been all, might not the bill aver, and ought it not to aver, what the amount of the notes was ? The deed would convey the land as security for the notes, by any reference to them, however imperfect ; and then any averments in the bill, standing well with the deed, might be made and proved.
    But the words for “ one hundred each,” by necessary intendment, must be understood as meaning 100 dollars each. Booth v. Wallace, 2 Root 247. That this was in fact the meaning of the parties, is evident from the context. The several clauses of the condition must be read together; and from the expression of the word dollars in the latter clause, it is obvious that the same word is understood in the former. This is purely a matter of construction.
    
    2. That Tucker was a proper instrumentary witness to the deed. He was not called to testify as to the validity of the notes. If he had been, Benedict could not object; because his interest would be to defeat a recovery, and consequently to avoid any future liability. He was only called to prove the execution of the deed. And what has he to do with this security ? If Benedict signed the notes, he must pay them; and how is Tucker’s condition improved, by Benedict’s giving collateral security ? If Tucker had any possible interest, it would be to defeat the security; for if the land is foreclosed, the debt is paid; and then Tucker becomes immediately liable over to Benedict for so much money paid for his benefit. But the truth is, his interest is exactly balanced ; for he is, at all events, liable to pay the note. If he pays it himself, he is discharged from any liability to Benedict for becoming his surety. If he suffers Benedict to pay it, then he must indemnify him, by refunding to him the money so advanced. 1 Phill. Evid. 53. and cases there cited, especially Birt v. Kershaw, 2 East 458. He cannot be affected even to the extent of costs in this suit; because his contract of indemnity does not extend to redeeming any collateral security, which Benedict might see fit voluntarily to give. When Benedict signed the notes, it does not appear to have been any part of the agreement, that he should give security to Bigelow ; and, of course, there was no implied promise, on the part of Tucker, to indemnify him for so doing. But if he gave a mortgage to Benedict, by way of indemnity, for Benedict’s mortgage, his interest would be to defeat that mortgage, and thus relieve his own.
   Peters, J.

This case presents two questions. 1. Is Tucker a competent witness to the deed in question. 2. Are the notes well described in the condition thereto annexed ?

Tucker was the principal debtor. Benedict became his surety, and pledged his estate to Bigelow, to secure this debt. Tucker subscribed the deed as a witness; and was called, by Bigelow, to prove its execution, to effect a foreclosure, and thus pay his own debt with Benedict’s estate ; thereby becoming his debtor for the same amount. Tuckers interest in the event, if any he had, is perfectly balanced; as the principal is always bound to indemnify his surety. 1 Phill. Evid. 54. and the authorities there cited. But admitting Tucker to be interested, against whom is his interest? “ The mortgagee,” say the de fendants’ counsel. Who objects ? The mortgagor. But it is a well settled rule, that a witness is competent, when called on to testify, by a party against whom he is interested. 1 Phill. Evid. 57. n.

Are the notes well described in the condition annexed to the deed ? It is correctly said, by the defendants’ counsel, that in relation to all written documents exhibited as evidence, the court are to decide upon the words they contain; and what is the legal construction of the words used, is the only enquiry, But it is not true, that in this case, the court are called upon to say what is the import and meaning of a note given for “ one hundred.” This certainly would be a vain undertaking. But we are called upon to say, what is the meaning of the defeasance annexed to the deed in question ; and this is to be ascertained, by the words used, the subject matter, the context and the intention of the parties. The sentence is not very accurately expressed ; but read with the eyes of common sense, it is perfectly intelligible. Omit the word “each,” or place it after the word “ notes,” and the meaning will be precisely what it now is, viz. four notes for one hundred, and one for two hundred, dollars. The subject matter is a debt in dollars ; and the context demonstrates the intention of the parties, one to give, and the other to receive, a real pledge for the security of this debt. The sentence is eliptical; and the word “dollars” is understood wherever the sense of the contract requires it. In Booth v. Wallace, 2 Root 247. in an action on a note for “ thirty-two, twelve shillings, and five pence,” it was decided, and I think correctly, that the word pounds, after “ thirty-two,” was necessarily implied.

I would not advise a new trial.

The other Judges were of the same opinion, except Brain-ard, J., who was absent when the case was argued, and therefore gave no opinion.

New trial not to be granted.  