Levy vs. Brown & Fenno.

[JANUARY whether he had been guilty of negligence. We think it would be difficult to conceive of a case where a party would be more fully and completely excusable in not making further exertions to produce additional testimony. The legal presumption was that the witness testified to the truth before the justice, and nothing could be further from the intendment of the law than that he would depart, in the least minutia, from the precise statement then and there made. The defendant was not even required to seek other and additional testimony as a matter of mere precaution, to be used in case of the death of his witness, as he had already placed his testimony in such a situation as to be accessible to him in that event. He was, therefore, in every aspect of the case, entirely warranted in relying alone upon his testimony, and as such he was most clearly surprised and consequently entitled upon that ground alone to a new trial.

It is also contended in behalf of the plaintiff's below that the usury must appear upon the face of the contract itself, and that it cannot exist in parol. As an answer to this position we will simply refer to the argument of the court of appeals of Kentucky in the case of Lear vs. Young, 3 Marshall's Rep. 421. It is, by that court in that case, held as follows to wit: "It is true that the verbal contract would, independent of the statute, be merged in the written agreement, and being inconsistent therewith, parol evidence would be inadmissible to prove it. But if we are correct in supposing the written agreement to be void under the statute, in consequence of the illegality of the verbal contract, it is obvious that the latter cannot be merged in the former; for it is only in virtue of its superior obligation that a written contract has the effect of extinguishing the verbal contract upon which it is founded; and of course when it is no obligation it can have no such effect. With respect to the admissibility of parol evidence to prove the contract there can be no doubt, for it is well settled that any matter which shows that a security is void on the ground of its being usurious, may be averred and proven however contrary it may be to the terms of the security." An agreement to pay more than legal interest for money loaned

on note, such agreement being made at the time of the loan, is usurious, and renders the note void, though the note on its face be for the amount lent with legal interest only. But if the agreement to pay more than legal interest be subsequent to the time of the loan, though such agreement be usurious, yet it will not avoid the note. See Merrills vs. Law, 9 Wend. Rep. 65.

In view of the whole case therefore, we are clearly of opinion that the circuit court erred in refusing a new trial. The judgment of said circuit court is consequently reversed and the cause remanded with instructions to proceed therein according to law and not inconsistent with this opinion.

BIVINS ET AL. VS. MCELROY.

The parol admissions of a party made in pais, if competent evidence only of those facts which may lawfully be established by parol evidence.

In trespass quare clausum fregit, plaintiff cannot establish his title to the close by the verbal admissions of defendant made in pais.

Where several are sued, part of them make default, and an interlocutory judgment is rendered against them, and a writ of inquiry ordered; and the others appear, plead, and there is a verdict and judgment against them, without any further action as to the parties in default, the judgment is not final.

Appeal from the Madison Circuit Court.

Trespass quare clausum fregit by William McElroy against John Bivins, Jno. W. Bivins, Jas. McKinney, Samuel Raynor, Sterling Tucker, Elijah Tucker, George Hutchinson, and Joshua Silley, determined in the Madison circuit court, in October, 1849, before Hon. W. W. FLOYD, Judge.

The declaration charged that defendants entered a certain close of plaintiff, carried off a large quantity of rails, spoiled his crop, &c., &c.

are /

Silley was not served with process. John Bivins, Samuel Raynor, and John W. Bivins appeared and pleaded not guilty, and tender of the damages sustained by plaintiff; to which, after demurrer overruled to the latter plea, plaintiff took issue. The other defendants made default, an interlocutory judgment was rendered against them, and a writ of inquiry ordered. jury was then called to try the issues made up by the above pleadings, and verdict and final judgment against Jno. Bivins, Sam'l Raynor and John W. Bivins, without further actions as to the defendants in default. Motion for a new trial overruled, bill of exceptions, and appeal by the defendants, against whom final judgment was rendered. The points reserved by them appear in the opinion of this court.

BALDWIN, for the appellants. The plaintiff below could not recover in this action unless he proved possession of the property, (Clark vs. Hill, 1 Harrington 335. Ward vs. Taylor, 1 State Rep. Penn. 238,) or a legal title in himself, (Johnson vs. McIlwain, 1 Rice 368,) and, for this purpose, the admission of one of the defendants was insufficient.

The court erred in rendering a separate final judgment against the defendants, who appeared and pleaded to the action without disposing of the case as to the defendants who made default: only one final judgment can be given. Dig., ch. 126, sec. 80.

Chief Justice JOHNSON delivered the opinion of the Court. The point first to be determined, relates to the competency of the testimony to sustain the allegations in the declaration. The plaintiff below made no pretence of actual possession of the close which he charged to have been broken by the defendants, and consequently he relied alone upon his title, by which to draw to him such a constructive possession as would enable him to maintain the action. This he attempted to show, not by the certificate of entry, or any other record evidence, but simply by parol. It was testified upon the trial that John Bivins, one of the defendants, admitted that the plaintiff had entered the land

from which the rails had been removed. This admission of John Bivins was the only evidence offered tending, in the slightest degree, to establish title in the plaintiff.

The parol admission of a party, made in pais, is competent evidence only of those facts, which may lawfully be established by parol evidence. It cannot be received, either to contradict documentary proof, or to supply the place of existing evidence by matter of record. Thus, a written receipt of money from one as the agent of a corporation, or even an express admission of indebtedness to the corporation itself, is not competent proof of the legal authority and capacity of the corporation to act as such. (See 1 Greenl. Ev. 243, 2 ed. Welland Canal Co. vs. Hathaway, 8 Wend. 480. National Bank of St. Charles vs. De Bernales, 1 C. & P. 569. Jenner vs. Joliffe, 6 John. 9.) Nor is a parol admission of having been discharged under an insolvent act sufficient proof of that fact without the production of the record. (See Scott vs. Clare, 3 Camp. 236. Summerset vs. Adamson, 1 Bing. 73.) It was held in the case of Abbot and another, assignees of Farr, a bankrupt, against Plumbe, (Doug. R., part 1, ps. 216, 217,) that, in an action on a bond, or to prove a petitioning creditor's debt, which arose by bond, proof of the acknowledgment of the obligor did not supersede the necessity of calling the subscribing witness. Lord MANSFIELD said: "To be sure that is a captious objection; but it is a technical rule, that the subscribing witness must be produced, and it cannot be dispensed with, unless it appear that his attendance could not be procured. It was doubted formerly, whether, if the subscribing witness denies the deed, you can call other witnesses to prove it; but it was determined by Sir Joseph Jekyl, in a cause which came before him at Chester, that in such case other witnesses may be examined, and it has often been done since." ASHURST, Justice, said: "If the evidence of the subscribing witness were to be dispensed with by this confession of the bankrupt, the defendant would be deprived of the benefit of cross examining him concerning the time. of the execution of the bond, which might be material." And BULLER, Justice, in the same case, said: "It is an established

Bivins et al. vs. McElroy.

(JANUARY rule, that assignees must prove the petitioning creditor's debt by the same evidence which must have been produced in an action against the bankrupt, and it is necessary, to recover on a bond, to call the subscribing witness, unless some reason can be shown for his absence." The case of Bort vs. Dunning, (4 East 53,) is to the same effect. Lord ELLENBOROUGH, C. J., in delivering his opinion in that 66 said: case, This case falls within the common rule. The answer of the defendant in chancery, admitting the execution of his bond to which there was a subscribing witness, cannot be more than secondary evidence; and I did not reject it as not being admissible in any event, but because the plaintiff had not laid a foundation for letting it in by showing that he had made inquiry after the subscribing witness, Richard Wilson, and had not been able, with due diligence, to procure any account of him. No one person of that name, (of whom several were suggested in court within reach of inquiry,) had been applied to for the purpose of knowing whether he were the subscribing witness." LE BLANC, J., also said: "The argument of the plaintiff's counsel goes upon the supposition that the obligor himself must know every circumstance attending the execution of the bond, but that does not follow. A fact may be known to the subscribing witness not within the knowledge or recollection of the obligor, and he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction.” This, then, seems to be the general rule, though it does not go to the entire exclusion of parol admissions of the nature of the one under consideration, but only to their effect: for, in general, as was observed by Mr. Justice Parker, in Earle vs. Picken, (5 C. § P. 542,) Newhall vs. Holt, (ib. 662,) and Slattery vs. Pooley, (6 M. & W. 664,) what a party says is evidence against himself, whether it relate to the contents of a written instrument, or anything else. Therefore, in replevin for goods distrained, the admissions of the plaintiff have been received to show the terms upon which he held the premises, though he held under an agreement in writing, which was not produced. Nor does the rule affect the admissibility of such evidence as secondary proof af