26 Ga. 228 | Ga. | 1858
Dissenting Opinion
dissenting.
I think the decision of the Court below ought to be sustained. I know of no precedent or authority for going to the extent proposed here. The suit is on a bond. The obligor’s name is wrong, and it is proposed to make that right by averment and proof. The bond was given on filing a claim. The condition of the bond recites, that James A. Davis was the plaintiff in the fi. fa., and that Albertus J. Simmons and James W. Adams were security. The fi. fa. to
Perhaps, in States which have no Courts of Chancery, this kind of proceeding might be allowed, but certainly on no legal principle. The case of Isaac Coleman vs. John Crumpier et al., (2d Dev. Law Rep. 508,) is very much like this. That was a suit on a bond in whieh A. and B. were defendants. It was held, that the record of a suit in which B, and C. were defendants, did not support the breach assigned, and that parol evidence that the name of C. was inserted in the bond by mistake, instead of the name of A., was inadmissible. The Chief Justice, in delivering the opinion of the Court, said that it was too well settled to require either argument or authority to show, that a written document cannot, by parol, be made to mean any thing but what its word, that is, itself imports. It certainly cannot be contradicted. He said he entered not into the doctrine of ambiguities, either latent or patent. The case did not require it. He remarked further, that parol evidence could not lend the bond to the record, nor the record to the bond. The bond is the contract of the parties, and to say that a wholly different contract may be set up by parol, from that which the writing between the parties makes, in a Court of Law, when a party, against whom the evidence is to operate, cannot complain, or admit, or deny, is to open the door to great mischiefs, and to place more reliance on the frail memory of witnesses, than on an infallible writing. I think the presiding Judge ruled correctly, and that his judgment ought to be affirmed.
Lead Opinion
By the Court.
delivering the opinion.
It is admitted on all hands, that the plaintiff might recover on this bond and his offered proof, in equity. But what is there to prevent him from doing so in like manner at law.
I think, there is nothing. “Whenever” “a plaintiff or complainant shall conceive, that he she or they, can establish his her or their claim, without resorting to the conscience of the defendant, it shall and may be lawful for every such plaintiff or complainant, to institute his her or their action upon the common law side of the Court, and shall not be held to proceed with the forms of equity; any law or usage to the contrary notwithstanding.” Cobb Dig. 464.
This, as it seems to me, is an authority to the plaintiff to proceed at law in this case. I therefore, think that the Court erred in not admitting the evidence, to the mistake.
Judgment reversed.
