Moore v. Executors of Moore

1 N.J.L. 363

• Court: Supreme Court of New Jersey
• Decided: September 15, 1795
• Status: Published

Opinion

Kinsey C. J.

This will cannot be received in evidence: — we are bound by the rules of law, and they offer insurmountable objections. The utmost time within which bylaw, the testator was allowed to perform these covenants, was during his own life; and 'v this respect the evidence does not support the plea of performance.

Hut wc are clear that whether the contents of the will are , o be regarded as a satisfaction, or performance of the original ajíleles, is exclusively a subject of equitable jurisdiction. The constitution has not vested this court with power to decree covenants performed by general devises in a will to the covenantee. Whether such bequests ought ex equo to go in part or entire satisfaction of express covenants in a deed, cannot be the subject of a legal discretion; it must be referred altogether and entirely to the Court of Equity.

The defendants then offered to prove that there were two parts of the articles declared on, and that at a certain tiras: the plaintiff being at the house of the testator, the latter produced his part which with the assent of the plaintiff and in his presence, was cancelled and destroyed by Dr. Harris one of the defendants.

The Counsel for the plaintiff objected to the testimony. They contended that the covenant which was in the posses sion of the plaintiff had been produced and appeared not to be cancelled, and that it did not appear because the other party had destroyed his, that therefore the whole contract was at an cud.

But there had been in this case a plea of performance which admitted the existence of the articles at the time o!. pleading; the evidence offered was therefore in contradiction to the admission of the party tendering it. The defendant if he really had such a ground of defence ought to have plead» cd non est factum. Under the plea of payment in an actio», on a bond it would not be permitted to prove that the obliga* tion had been cancelled before action brought.

Lastly if this evidence can have any operation it must be. by proving the fact of satisfaction, which should have beet-, specially pleaded, and cannot be given in evidence under this plea.

The Counsel for the defendant argued in answer to the first: objection that both parts made but one instrupa^st, and thfii if either was cancelled, with the consent of the parties to it3 both were at an end.

With regard to the second and third objections they said that although cancellation did not absolutely prove perform.anee, yet it was evidence from which performance might be inferred by the jury, and was therefore proper to go to them,

Per Cur.

The cancellation of an instrument may be considered as evidence either that an existing obligation had been destroyed, or that it had been actually performed. If it was cancelled in consequence of performance, it is unquestionably evidence of that fact. The jury must draw their own inferences. °

The Chief Justice observed during this argument that according to the old cases the plea of actio non had reference to the time of pleading; — but that according to the modern decisions it referred to the commencement of the action,

(a)

The plaintiff then offered to prove by one of the subscribing witnesses to the articles, who was the person that actually drew them, that the testator intended that the £1000 given generally, should be paid in specie. The evidence was objected to on the ground that it was to alter the nature of the instrument; that the money given must be considered as the legal and current money of the time, but the objection was overruled by the Court who said that it was a case of Jmbiguitas latens; that the testimony was intended to show the actual meaning of the instrument and not to vary or contradict it, and the evidence was admitted, (b)

The jury in this case had agreed upon a verdict for defeñdant, but the plaintiff suffered a nonsuit.

а) Note. See l Selwyn’sN. P. 13?.

Note. See a decision of the Supreme Court of Vermont; to the sgine purport in the case of Morton v. Wells 1 Tyler 382.