41 Miss. 696 | Miss. | 1868
delivered the opinion of the court.
The defendant in error sued out an attachment against the plaintiff in error, on the ground that the plaintiff in error was about to remove himself out of this State, returnable to the Circuit Court of Hinds county for the Second District.
At the May term of said court, 1866, the defendant in the attachment filed a plea in abatement, traversing the truth of the. alleged cause for which said attachment was sued out, and upon issue joined thereon there was a trial and verdict for the plaintiff in attachment.
The defendant below moved to set aside said verdict, and for a new trial, on the following grounds: 1. The jury found contrary to the evidence. 2. The court ei’red in giving instructions for the plaintiff. 3. The court erred in refusing one of defendant’s instructions; and, 4. The jury found contrary to law. Which motion was overruled by the court. To which judgment of the court, in ^overruling said motion, the defendant excepted..
The defendant then pleaded non assumpsit to the action, on which there was a trial, which resulted in a verdict and judgment in favor of the plaintiff for $6,596.56.
The first assignment of error is, that the court erred on the trial of the first issue, in giving the first and third instructions asked for by the plaintiff below. In the first of which the court instructed the jury that the declarations and admissions of a party are legal and sufficient evidence against him, but not in his favor. ' This instruction is erroneous in charging as to the sufficiency of the evidénce. The sufficiency of the evidence is a matter peculiarly within the province of the j ary to determine. It is also erroneous in.charging, without qualification, that the declarations and admissions of a party are not evidence in his favor. This instruction undoubtedly lays down the general rule correctly. But there are well-recognized exceptions to this general rule, and the case at bar comes within one of these exceptions. An acknowledged exception to the rule which prohibits a party from producing his own declarations in his favor is, where such declarations are necessary to explain an act which takes its character from the design and intention of the party who does it. Cross v. Black, 9 Gill & Johnson, 198; Baptiste v. De Volunbrun, 5 Harris & Johnson, 86.
The declarations and acts of a party to a suit when they make part of the res gestee, constitute another exception to the general rule above alluded to, and are legal and competent evidence for him. There is no error in giving the third instruction.
The second assignment of error is, that the court erred in refusing to give the 9th instruction asked for by the defendant below, which is as follows: “As illustrative of the issue in this case, the jury should consider all the contemporaneous acts and conduct of the defendant, as indicating his intention in reference to removal from the State.” This instruction propounds the law correctly as applicable to this case, and the court erred in refusing to, give it.
We will consider together the 7th, 10th, and 13th assignments of error, as they are substantially the same, to wit — “ That the
Where the intentions of a party are sought to be established, he may show what were his intentions by introducing in evidence his own acts and declarations, made ante litem motam, or at a time not suspicious, when he could have no reasonable motive to misstate facts or misrepresent the truth. Gardner v. O'Connell, 5 Louisiana Annual Rep. 353.
In the case of Offut v. Edwards, 9 Robinson’s La. Rep. 90, the court decided that where an attachment has been obtained, evidence will be admissible, on the part of the defendant, to prove his conversations and declarations made out of the presence of the plaintiff, previous to his leaving the State, and a short time before the attachment was sued out, with a view to show that his removal from the State was not intended to be permanent. And, again, in the case of Thompson v. Stewart, 5 Littell, 5, the court decided that the declarations of a party made before an adverse possession was taken, as to his intention in removing from the premises, may be given in evidence in his favor, on the traverse of an inquisition of forcible entry.
The first issue was upon the truth of the alleged cause for which the attachment in this case was sued out, and not whether the attachment was wrongfully sued out; for that would depend upon the result of the trial of that issue, and the finding of the jury for the defendant would be virtually a finding, under the statute, that the attachment was wrongfully sued out.
Whether the plaintiff in error was about to remove himself out of this State, at the time of suing .out the attachment, is a question of intention which can be established only by declara tions, acts, and circumstances. His intention can be known only to himself, except so far as it is communicated by his declarations. And these declarations, made about that time, and before the controversy arose, are legal evidence for him of his
The declarations offered in evidence, on the part of the plaintiff in error, were made by him about the time that he made the declaration upon which the attachment was taken out; and his acts with reference to procuring hands and making preparations for planting in Hinds, were done but a short time before or after that declaration was made, and at a time when there was no controversy or lis pendens between these parties, and were, therefore, competent evidence for the plaintiff in error, and should have been permitted to go to the jury. Kolb v. Whitely, 3 Gill. Johnson, 198 ; Kilburn v. Bennett, 3 Metcalf, 199.
The eleventli assignment of error is, that the court below erred in deciding that the plaintiff in error could not give in evidence any acts or conduct of his, occurring after the attachment proceedings were commenced. There is no error in this ruling of the court.
The declarations of a defendant in an attachment made after the attachment was sued out, are inadmissible to explain away the effect of previous declarations. Tucker v. Frederick, 28 Missouri, 574. The same reason that renders declarations of the defendant, made after the attachment is sued out, incompetent evidence for him, will apply to his subsequent acts and conduct, and render them inadmissible as evidence for him.
The eighteenth assignment of error is not well taken. The manner of s'wearing the witnesses, and the commissioner’s certificate to the depositions, are a substantial compliance with the law. We, therefore, think there was no error in allowing the depositions of Graham and Hero to be read in evidence to the jm7-
The nineteenth assignment of error is, that the court erred in permitting the note of Adams and Austin to R. Clardy, and endorsed by him and defendant Baker for $1,075, to be read to the jury, so as to bind Baker in the absence of all proof of protest and notice.
This presents the question of the legal effect of Baker’s endorsement on said note, which is in the following words : “ I
This endorsement makes- Baker a guarantor of the payment of the note. It is an absolute engagement that the makers should pay the note when due, or that he would pay it himself. The plaintiff below was not bound to prove demand of payment of the makers and notice of nonpayment,, as in case of an ordinary endorsement. 2 S. & M. 139, Matthews v. Chrisman, 12 S. & M. 595.
There is a manifest distinction between an absolute guaranty of a promissory note, or a sum ascertained and certain, and a letter of credit, with a guaranty which requires acceptance and notice. Upon the failure of the makers of the note to pay it at maturity, the liability of the guarantor becomes fixed, and the holder has a right to sue him at once upon the guaranty, and recover the amount due upon the note, without proof of demand and notice, as in ordinary eases of endorsement. Allen v. Rightmere, 20 John. 365 ; Heaton v. Hulbert, 3 Scam. 491; Klein v. Currier, 14 Illinois, 241; Hance v. Miller, 21 Illinois, 638.
"When the matter alleged lies peculiarly in the knowledge of the plaintiff, he must aver and prove that the defendant had notice, but when it lies equally in the knowledge of the defendant, such averment and proof are unnecessary. Lent v. Hadelford, 10 Mass. 230; Douglass v. Howland, 21 Wend. 35 ; Jones v. Train, 11 Vermont, 444; 2 Amer. L. Cases, 54, 55, 94. The ease at bar .comes within the latter branch of the rule.
When the guaranty is, that the debt shall be paid by a particular day, the guarantor’s obligation is not considered secondary or collateral, but primary and positive ; and no demand and notice are necessary. 4 Pike, 76 ; Lee v. Dick, 10 Peters, 496. And where a guaranty is absolute in its terms, and definite as to its amount and extent, no notice to the guarantor is necessary. Carson v. Hill, 1 McMullan, 76; Williams v. Springs, 7 Iredell, 384.
■ Where one contracts in the form of a guaranty upon the back of a promissory note, he cannot set up in defence the want of
We have reserved for the last the consideration of the third assignment of error, which is, that the court erred in overruling the motion for a new trial of the first issue, made by the defendant below.
Upon the whole, for the reason given in this opinion, we think the court erred in refusing to grant a new trial of the first issue.
The judgment will, therefore, be reversed, the cause remanded, and a venire de novo awarded.
