Foster v. Trull

Yates, J., delivered the opinion of the court. There can be no question, that paroi proof, respecting the existence of process issued out of a court, is inadmissible. The process itself must be produced, or a sworn copy ; and if the original is lost,' it ought to be accounted for. Jt is somewhat extraordinary that this was not done on the trial of these causes. There are strong reasons to believe, that the writs which were issued in the various suits first commenced by those parties against each other, ■with £he sheriff’s return endorsed, were never filed in the clerk’s [458] office, after the .written agreement in relation to those . suits faá stated in, the case) "had been enteréd into,, but remained in the hands of the respective plaintiffs, who, probably; destroyed them. As nothing of this sort; however., appears from. the testimony,, no notice can. be taken of the paroi proof respecting the process and commencement of the suit. The decision-of the present causes must depend on the effect .of the settlement made between the parties.". ' : '' . The only question to be discussed is, Whether this, settlement, and the circumstances which, immediately ensued, can. be deerned evidence'of accord andsatisffidtiony.sd.astobaf the present • actions. This, I am inclined to think, is" the fair deduction-from the written agreement, and that part of the testimony connected with' it, which the court aye authorized; .on legal pri-nci-, pies, to receive. The written agreement admits that suits had beén brought by Foster & Woodford against Curtis, which rendered the production of the process in those Suits,, to, show that they .were commenced, unnecessary ; apd it could'not conclusively be: made to appear that they were for the same cause of action with the suits now brought by them, in- any other way than by paroi proof.- -As far,;, therefor,e,., as Curtis's evidence: went to' .show that fast, it ought to be received. He declares that" he/had been sued.by the plaintiffs severally for the same false imprisonment, which is the subject of controversy in the present suits;. and the acceptance of a similar agreement frqm Curtis by Foster, shows the satisfaction to be, rendered: by Curtis. The agreement purports, to.be for suits commenced, and is not confined to the" suit brought against them jointly. The accord'extended to the suits mentioned by-Cwrtts in his-evidence; .and, if so," it remains only to show, that. sajtiHactibn-followed it';, for the,law-cannot be questioned,, that accord, without satisfaction, is an insufficient,, or bad defence. 1 .. - . - ' ■ . 1 .do- hot think it wa-s* indispensably .necessary tó producé' the .record showing the discontinuance of Curtis’s süils, -in making out a compliance with the respective agreements.: Sufficient appears.withput it. It is-in-evidence that the suits Were stopped, . according to Curtis’s directions to his attorney, .and he paid the costs. From those circumstances We have reason to infer, that the writs were never tied in; thú clerk’s" office.- All this taken together, is a sufficient-discontinuance; and must. [459] and ought to be deemed such a compliance with the written agreements, interchanged between Foster and Curtis, as to amount to a satisfaction; and, if so, then the present suits are at an end. The recognition by Woodward, of Foster, as his agent, appears to be explicit and satisfactory. He declared, after the settlement, that it was correct; that he approved of wliat Foster had done in his behalf, and agreed to it. He, therefore, is bound by this agreement, which has been fully satisfied as to him; for the suit against him, in favour of Curtis, was also stopped, and the costs thereon paid. The- written agreement, therefore, taken in connexion with the other circumstances, is sufficient evidence of accord and satisfaction to bar the present actions. The defendants are entitled to judgment in their respective causes. Judgment for the defendants*