State Use C. v. Terre-Tenants of P. Reading

1 Del. 23

• Court: Superior Court of Delaware
• Decided: July 5, 1832
• Status: Published

Opinion

The Court.

This plea purports to set out an obligation from Philip Reading to Eliza Reading. Such a description was necessary, because an obligation from Philip Reading to nobody, would be a nullity. The bond offered in evidence is to Sarah Eliza Reading, which is a fatal variance. Where an instrument is set out in a narr or plea, it must be accurately described^ and the proof support it accurately. 3 Stark. Ev. 1588. Strange 787. Bond rejected.

The deft, then offered in evidence, a statement of judgments against William Price, a surety in this recognizance, and the process upon them, and the sales of Price’s lands, to support his third plea. Objected to.

Mr. J. A. Bayard.

—Underthis pleathedeft. can show nothing but an actual payment, or application of the proceeds of the sales to the recognizance. The plea is, that we were actually paid out of this fund, and the fact that the sales were sufficient and legally applicable to this recognizance, is not sufficient without showing the application of them.

Mr. Rogers.

—We don’t intend to prove any thing more by this paper than the existence of the judgments and writs, and the sale by the sheriff.

This was not objected to. and they were admitted for the purpose of raising the question whether they supported the plea. The amount of sales of Price’s land applicable to this recognizance was $1,634 50.

Bayard.—The plea is a plea of payment, actual payment. The proof is of a legal payment; a payment by operation of law, and is not admissible under this plea.

The Court.—This is a general plea of payment; out of a particular fund it is true, but that does not vary the case. It does not state the facts so that the court may say whether in law they amount to a payment. A plea of actual payment is not supported by evidence of a legal payment. This is the case of a debt discharged by operation of law according to the proof, rather than of a payment as alledged by the plea. We therefore think the evidence inadmissible.

The plff. in reply, offered in evidence the answer of Peterson Reading, one of the terre-tenants in this case, to a bill in Chancery. Objected to.

Bogers.—Peterson Reading is only a terre-tenant. His connection as one of the heirs of Philip Reading does not appear. He may not be at all interested here, yet his admission is offered in evidence-to bind all the defts.

Bayard.—By this reasoning we might have the separate admission of each deft, and yet could produce no evidence against any. They can’t take advantage of their mode of pleading jointly, so as to exclude the separate admissions of each.

Wales.

—The difficulty arises from the improper service of the original process. This is a proceeding against the land, and yet the defts. are summoned personally. I can’t see how they could plead non tenure.

The Court.—The rule is clear that the admissions of a party are evidence against him; and can the mode of the deft’s, pleading in this case, deprive the plff. of his right to this testimony? The English rule is, that you must make the heir a party; but the practice is different here. We always issue our sci. fa. against the terre-tenants.

Note. The inclination at first was to confine the effect of this answer to the deft. Peterson Reading; at present, the court directed it to be read, leaving any opinion as to its application for charge to the jury. Upon examination of this question the opinion of all the court was, that the answer of Peterson Reading is evidence against all the terre-tenants, on the principle of the admission of a party having a community of interest with the other parties. 2 Star hie Ev. 44.

Mr. Booth for plff., to the jury, stated his claim to be $6,135 70 principal and interest.

Charge of the court to the jury.

Clayton, C. J.

—This is an action of scire facias on a recognizance in the Orphans’ Court, on the acceptance of intestate lands. The record of the recognizance is sufficient evidence of the plff’s* claim, unless it has been discharged. The pleas are payment, ac cord and satisfaction, and payment out of the sales of lands of William Price, one of the sureties in the recognizance. No evidence has been offered under the first plea. The second plea is, that “Philip Reading executed any delivered his bond to Eliza Reading, which was received in full satisfaction and discharge of the recognizance. The evidence is of a bond to Sarah Eliza Reading, which does not support this plea. We are not aware that there is any evidence that this bond was accepted in satisfaction of the recognizance; and there must be both accord and satisfaction to support this plea. The other plea is of a payment out of the sales of William Price’s lands. The evidence is, that the lands of Price, bound by this recognizance, were sold by the sheriff, the proceeds of which sale, or a "part of them, the defts. contend, were legally applicable to this recognizance, and ought to have been applied to it. This is not a payment. If tile facts had been stated in a special plea, it might have been a discharge of the recognizance pro tanto; but under this plea they are inadmissible.

Booth and J. Jl, Bayard for plff. Wales and Rogers for defts.

(Note. The facts relied on in support of this last plea if properly pleaded, would have brought up the question decided in the High Court of Errors and Appeals in the case of Vickery vs. Vickery. The decision there was that a sale, by the sheriff, of lands bound by a recognizance in the Orphans’ Court, operated as a discharge of the recognizance, pro tanto.)

Verdict for plff. for $>6,135 70.