The testimony of Leazure, on cross-examination, when called to prove the execution of the assignment, was not out of place. Independent matter of defence may not be introduced by cross-examination of a witness to a collateral fact; but here, the cross-examination was to a fact which was an incident in the transaction proved, and which destroyed the effect of the
Nor Avas the effect of the evidence thus brought out precluded by the opinion delivered when the cause was here before. If the bargain between Luce and the drawer was, that only the judgmеnts against the latter and the first endorser Avere to be assigned — not the judgments against the subsequent endorsers; — and if that part of it was left out by reason of thе declarations of the scrivener sanctioned by Luce, that the agreement was so, and that it was unnecessary to insert it, the case would fall distinсtly within the principle of Miller v. Henderson, 10 S. & R. 290. Indeed, it would agree in all essential particulars with Hurst v. Kirkbride, the leading case on the subject, as it was stated by Chief Justice Tilghman, in Wallace v. Baker,
But besides the ground of fraud, there is another on which the reception of the evidence, and the direction as to the effect of it, might be supported. Parol evidence is indisputably proper to rebut a prеsumption or an equity. “The meaning of this,” says Professor Greenleaf in his Treatise on Evidence, vol. 1, part 2, ch. 5, § 296, “ is that where a certain presumption wоuld in general be deduced from the nature of an act, such presumption may be repelled by extrinsic evidence showing the intention to be otherwise.” Thus the presumption that legacies of the same stamp were not intended to be cumulative, or that a legacy to the executor wаs not intended to deprive him of the residue, or that a portion was intended to be satisfied by a bequest, was held to be rebutted, by parol proof, in Hurst v. Beach, 5 Madd. Rep. 360; Oldman v. Slater, 3 Sim. 84; Debeze v. Mann, 2 Bro. C. C. 165, and some other cases. Even an implication that a will was revoked by marriage and the birth of a child, has been thus rebutted. “ There is a techniсal phrase for it,” said Lord Mansfield, in Brady v. Cubitt, Doug. 39; “in the case of executors it is called rebutting an equityNow, the right of an assignee to have the ancillary securities of the debt, is only an equity resulting from a presumрtion of intention that they should pass as accessories of the principal; and it may consequently be rebutted by parol evidence that thеy were to be retained. That such an agreement would be good if inserted in the assignment, is not doubted; and why should it not be proved by parol, when the words оf the assignment do not contradict it ? The testimony in this case neither contradicts nor varies the terms of the written assignment: it left to the assignee all that was specified in it; and it repelled merely an equitable inference from the nature of the transaction. A right to the benefit of concomitant sеcurities, is an equity which can be enforced
If, however, it were disbelieved, a further question would arise. The bank had sued out executions against the drawer and first endorser; in the first of which, the sheriff hаd made an imperfect levy of the drawer’s personal property, which was released by the assignment; and to the value of it, the present dеfendant claimed to be discharged as a surety. The judge charged, that “if the sheriff had property levied and within his control, which would have made a certain amount of money, and Luce stayed the writs and thus released the levy,” the defendant would be entitled to a credit pro tanto. The principle is not disputed; but it is insisted, on the authority of Lowrie v. Coulter, decided at this term, that there was in fact no levy, because the sheriff neither returned, nor proved by his testimony, thаt he had levied; and that the jury ought to have been so instructed. He testified that he did not see the property when he made a memorandum of the sеizure; but there was no prayer for specific instruction as to that, without which the judge was not bound to notice it, and the levy was good, in any event, against all but execution-creditors and purchasers, of whose existence, in the particular case, there was no proof. The releasе of the property, therefore, was pro tanto a release of the sureties. But whether there was a levy or not, if the bank, having been warned, as it seems to have been, to proceed promptly against the property of the principal debtor, assigned its judgment against him to a party who, standing in its рlace, stayed its execution against him, or refused to sue out one, the sureties were discharged.
We see no valid objection to the cоmpetency of the drawer as a witness. He was released by the only party to whom he was responsible, and consequently was without interest in the event.
Judgment affirmed.