Hazeltine v. Page

Hutchinson, C. J., delivered - the opinion of the Court.— There appears to be not much in controversy in the present case, except what depends upon the weight of evidence ; and we have no more to do with that, than we should have in any writ of error. And, in this respect, there is no diSerence, whether the action comes up by appeal, or by exceptions to the decision of the county court. We can hold appellate jurisdiction from the county court only to revise their decisions upon matters of law, arising from the facts, in some way placed upon the record. If the disclosure of the trustee is treated as true, let the judges certify, that they found the facts to be as stated in the disclosure. If there is other testimony, also, let them certify, in detail, what facts they find proved by the disclosure and other testimony. The disclosure itself may be so defective and incoherent, that no person can believe all the facts it contains. And, while we admit other testimony, either to contradictor support the disclosure, as [54] ever has been done in this state, we must treat the disclosure rather as evidence, than as a record document. Still, if it appears consistent in and of itself, and stands uncontradicted by other test¡monyj it is treated ns containing the truth. Yet, as the other testimony is not always on paper, we know not whether the county court treated it as true or not, without their certificate upon the subject. In the present case, the exceptions allowed show what facts they found proved,and the decision they made upon those facts. And the defendant now urges that the facts thus found require a decision, that Page might retain out of the two notes, last given by him, sufficient to indemnify him against the two suits named in his disclosure ; also that he should be allowed the sum he agreed to pay to Smalley and Adams, being their debt against Parker, the principal debtor. If we treat the facts upon these points as the defendant conceives they must have been found, and even treat the disclosure as true upon these points,still we must bear in mind that the two last notes, which the county court valued at one hundred and fifty seven dollars, were not left in the hands of Page as a fund to pay the previous judgements : but it was made payable immediately ; and at most, Page only took the promise of Parker to indemnify him against those judgements. Now those judge-ments could not take effect against Page till 1832-3 — and then they might be satisfied in horses, &tc. Of course, this promise could not be pleaded in offset, or set up in any way against the collection ofthe new noies. Nor would a court of equity interfere, even as against Parker, to stay the collection, on account of that executory promise. It would be necessary to show the inability of Parker to fulfil the promise. Nothing of this sort appears here. And does it follow, that an attaching creditor of Parker is to be restrained — even if Parker would be ? So long as the right of Parker to the $157, is a legal right, is not that enough for a creditor ? — Why is this different from the case of specific chattels belonging to Parker in the hands of Page — not deposited there asa pledge against the promise of Parker — but to be redelivered •when called for. A creditor goes and attaches that property ; •shall his execution be prevented on account of that promise ? As to the debt, of Smalley and Adams, and the application of the statute of frauds ; no debt of Page to Parker, or of Parker to .Smalley and Adams, is discharged by the verbal promise of Page to Smalley and Adams, unless the promise ipso facto operates to •discharge those debts. But the account of Smalley and Adams was continued against Parker : thus rebutting the presumption of [55] its discharge as against Parker.— Vide Livingston vs. Wilkinson, Sup. C. F. G. January T. 1828. No new consideration passed between Smalley and Adams and defendant. It is not like Williams vs. Leaper in Burrow. To make it similar, Smalley and Adams should have been about to attach the property of Parker in Page’s hands — 'then Page’s promise (with the assent of Parker, and perhaps without it) to pay their debt, in consideration of withdrawing their attachment. If not within the statute — is the promise grounded on any sufficient consideration ? To make a consideration, was it not necessary that Page’s promise should have been accepted in satisfaction of Parker’s debt? — Page’s authority under Parker was to pay the debt to Smalley and Adams, and not to embarrass the property of Parker by making a collateral engagement short of extinguishing the debt as against Parser. The court made the proper distinction between this claim of Smalley and Adams, and that due to Mr. Burt. Burt had accepted Page as his debtor, and charged him, and discharged Parker. The county court allowed Page to retain that .amount. Smalley & Adams, for the trustee; Read, for the plaintiff. The defendant has urged one further objection ; that the court were not warranted in adjudging Page as trustee of the monies of Parker, when one note was merely for so many pairs of shoes. The exceptions show, that the court found, from the disclosure, that the note payable in shoes had become due and payable.. Hence they set a value upon the shoes, and considered that value to be money in his hands. Were it our province to-decide upon the evidence, we should consider it as well warranting the decision of the county court. The note for shoes was-payable on demand. The disclosure states his undertaking to pay divers money debts on account of it, to nearly its value, and says-the remainder is due. If, by its being due, might not be intended that it was payable, yet his undertaking to pay so many money debts, well warranted the presumption that the shoes had been demanded, and the note become payable in money.. The judgement of the county court is affirmed..