Sciple v. Northcutt

Bleckley, Justice. 1. The bill offered in evidence was the original, not a copy or exemplification, and appertained to the same superior [45] court in which, the trial of the illegality took place. It was thus a writing, complete in itself, and the identical writing in which the admission sought to be proved was made. The question is, whether the plaintiff in th.efi.fa., who was defendant in the bill, could introduce it in evidence without offering at the same time an amendment which, as was insisted, modified or explained the admission. It does not appear that the amendment was annexed or attached to the bill, or written on the same paper, and hence we may suppose it was not a physical necessity that the bill and the amendment should be produced’by one and the same act, or one and the same party. Most probably they were separate instruments, though connected in meaning and purpose. Assuming this to be so, we think the plaintiff in fi. fa. was not obliged to introduce both documents in order to get the benefit of an admission contained in one of them. If, in consequence of the original being in evidence, the amendment was also admissible, it should have been offered by the appropriate party in rebuttal or reply ; as was done in the case of Armstrong vs. Lewis, this term, where, after admissions in the original answer had been read by the complainant, explanatory statements contained in an amendment to the answer were tendered by the defendant, and were held by this court admissible. It seems that in the present case this course was not pursued or attempted, except as the result of some consent arrangement between the parties, and that by virtue of the consent, the amendment was admitted, and the defendant ixs.fi. fa. had the benefit of it as evidence. The complaint seems to be that he had to buy its way in ; but, though the court would not compel the plaintiff to frank it through in company with the original bill; there is no certainty that the defendant might not have procured for it a free pass if he had requested the court to open the way to it as his evidence. Instead of doing this, he chose to bargain with his adversary, and have it admitted on terms. It appears from the record that the original bill was sworn to by the complainant in person, - on March 2, 1872, [46] and the amendment on April 8,1872. That a sworn bill is evidence against the complainant in a court of law, see 3 Greenleaf’s Ev., §274. 2. The new evidence was that of the attorney to whom the alleged payment was made. The fact of payment must have been known from the time it occurred, and as it was made otherwise than in cash, when the attorney’s general authority was to receive cash only, (see- Code, §409), there should have been due diligence in ascertaining whether any enlargement of that authority had taken place by ratification or otherwise. Most probably, the presiding judge could not help believing, under all the circumstances, that if due diligence had been used, not only all the facts, but also the residence of the attorney, would have been discovered in time for the trial. "When a debtor partly pays off a judgment to the creditor’s attorney in the way this is said to have been paid, he ought not to lose sight of the attorney for some years thereafter, unless he has other evidence that the creditor authorized or ratified the payment. It might not be his duty to employ a special watchman to keep the attorney from getting lost, but a very high degree of diligence in looking to his whereabouts should be exercised. Judgment affirmed.