"INUnited States for the County of Washing

N error to the Circuit Court of the [*320

'The judgment in the court below is reversed. ton, in the District of Columbia.

The defendant in error instituted an action of covenant, in the Circuit Court of the County of Washington, against Philip Roach, upon certain articles of covenant. Before the trial of the cause, the defendant died, and his ad

319*] *JAMES ROACH, Administrator of ministrator became the defendant in the suit, a Philip Roach, Plaintiff in Error,

The case is fully stated in the opinion of the Objection to form of verdict-failure to take court. It was argued by Mr. Brent, the youngexception-32d section of Judiciary Act-in-er, for the plaintiff in error, and by Mr. Bradstructions to jury. ley for the defendant.

the plaintiff. The questions of law decided by | cause thereof." It is true that a verdiet, eq the court below, and now presented for review nomine, is not comprised within this provision here, arise upon two bills of exception sealed of the statute, but judgments are: and the lanby the judges of the Circuit Court, and made guage of the provision, "writ, declaration, parts of the record. But before going into an judgment, or other proceedings in civil causes," examination of these questions, it is proper to and further, "such writ, declaration, pleading, advert to a point which was neither suggested process, judgment, or other proceeding whatnor decided in the Circuit Court, but which soever,' ," is sufficiently comprehensive to emhas been urged for the first time by the counsel brace every conceivable step to be taken in a for the plaintiff in error before this court. The cause, from the emanation of the writ down to point thus raised and pressed by counsel is the the judgment. The court have shown that following: that the jury, in rendering their the proceedings in this cause were according to verdict, failed to respond separately to the dis- the right of the case, that they brought into tinct issues they were sworn to try; and that view the real merits of the parties litigant bethis failure by the jury constitutes an error for fore the jury; they therefore consider both the which the judgment of the Circuit Court should verdict and judgment are within the terms and be arrested. Objections of this character, that intent of the statute, and ought to be protected are neither taken at the usual stage of the pro- thereby. ceedings, nor prominently presented upon the The first bill of exceptions states that the face of the record, but which may be sprung| plaintiff having introduced his proofs, the deupon a party after an apparent waiver of them fendant then gave evidence that in the spring by his adversary, and still more after a trial of 1831 the plaintiff stated to the witness that upon the merits, can have no claim to the favor he had just settled with Philip Roach (the deof the court; but should be entertained in obe- fendant's intestate), all his private accounts, as dience only to the strictest requirements of the well as an account of one Davidson against law. Let us see how far in the present in- said Roach, and had been paid the same except stance the court is controlled by any such abso- five hundred dollars, for which he had Roach's lute and inflexible authority. The three issues due-bill or note, payable on demand, but the were joined upon affirmative allegations by the witness was uncertain whether the plaintiff said defendant: Ist. That his intestate had per- it was a due-bill or note; and further stated formed his covenant; 2d. That he had paid that he and Roach were going to *Wash- [*323 whatever was due the plaintiff; and 3d. That ington where Roach had provided to pay said the defendant possessed in right of his intestate due-bill or note. And the defendant further a claim against the plaintiff, greater in amount proved, that about the time of this statement than the plaintiff's demand against him. Upon by plaintiff, Roach drew out of a partnership these affirmative averments, the jury find a ver- a considerable sum of money for his own use; dict for the plaintiff. Admitting that this ver- whereupon the defendant moved the court to dict is not technically responsive to the several instruct the jury, "That if they believed the pleas, it virtually answers and negatives them account in suit was settled by a due-bill or note all; for if all or either of the pleas had been given by defendant's intestate to the plaintiff, true, the verdict was untrue. Should the judg- then the presumption is that the said due-bill ment then be arrested, this would be done or note had been paid;" and afterwards furneither from a necessity to guard the merits of ther prayed the court to instruct the jury, the controversy, nor from the principles of "That if the jury believed from the evidence, sound inductive reasoning; but solely in obedi- that the defendant's intestate, in the spring of ence to an artificial and technical rule, which, 1831, closed the account in suit, by giving to however it may be founded in wisdom and be the plaintiff his due-bill or note payable on depromotive of good in general, yet, like all mand, and that immediately afterwards the other rules, is capable of producing evil when plaintiff with Philip Roach came to Washing322*] *made to operate beyond the objects of ton for the purpose of receiving the money for its creation. It was to prevent the mischiefs the said due-bill or note; that about the time ensuing from a misapplied rigor that statutes of said visit to Washington, a considerable sum of jeofails have been enacted, and their salu- of money was withdrawn by said Roach, from tary influence is invoked whenever the intrinsic a partnership in which said Roach was engaged merits of parties litigant would, without that with Patrick Donelly, in consequence of which influence, be sacrificed to mere modes and Donelly abandoned the partnership; then the forms of practice. By the thirty-second section jury may presume from the above facts, and of the act to establish the judicial courts of from the nonproduction of the due-bill or note the United States, it is provided, "That no by the plaintiff, no account being given by the summons, writ, return, process, judgment, or plaintiff of said bill or note, that the same was other proceedings in civil causes in any of the courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear to them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially set down and express together with his demurrer as the

paid and delivered to the said Philip Roach, and by him destroyed;" but the court refused, etc.

In trials at law, whilst it is invariably true that the decision of questions upon the weight of the evidence belongs exclusively to the jury, it is equally true that wherever instructions upon evidence are asked from the court to the jury, it is the right and duty of the former to judge of the relevancy and, by necessary im plication, to some extent, upon the certainty or definiteness of the evidence proposed. Irrelevant, impertinent, or immaterial statements, ■

court cannot be called upon to admit as the Philip Roach the money for said due-bill or groundwork of instructions; it is bound to take note; and that money was drawn by said Roach care that the evidence on which it shall be called from a partnership in which he was engaged; to act, is legal; and that it conduces to the then the jury may presume from the above issue on behalf either of the plaintiff or of the facts, and the nonproduction of the due-bill or defendant. To apply these principles to the note by the plaintiff (no account being given case under review: The purpose of the defend- by the plaintiff of the said due-bill or note), ant below was to show that the demand of the that the same was paid, and delivered to the plaintiff, if originally well founded, had been said Philip Roach, and by him destroyed, etc. paid by the execution of a note by the testator The propositions which the court were here reof the defendant, which note had been subsequired to affirm, so far from following as reguquently satisfied, surrendered to the maker, lar or allowable inferences from the evidence, 324*] and by him destroyed. *And what appear to be in no wise dependent upon it. No was the evidence introduced to establish these witness had proved so much as the existence of conclusions? The statement by a witness of a any particular writing whatsoever; much less conversation between himself and the plaintiff that of an obligation payable to the plaintiff, in 1831, wherein it was stated, amongst other and in his own interest and behalf. How, then, things, by the former, that he had settled all could the jury, with any propriety, be directed his private accounts, as well as an account of to presume, not only the existence of such an one Davidson, against said Roach, and had obligation, but also its discharge; and, in adbeen paid the same, except five hundred dol-dition to these facts, its actual surrender to, lars, for which he had Roach's due-bill or note and destruction by the defendant's intestate; payable on demand, but the witness was un- thereby relieving him from all the presumptions certain whether the plaintiff said it was a due- naturally arising against a party from the nonbill or note; and further said that he and Roach production of a document, whenever the were going to Washington, where Roach had custody thereof is brought home to him, either promised to pay said due-bill or note: and fur- by direct or circumstantial proofs. Almost ther, that about this time Roach drew out of a any other propositions which can be imagined partnership a considerable sum of money for could with as much regularity have been rehis own uses. quired from the court as instructions to the jury, as those which the court was requested to

431, and of Freeman et al. v. Boynton, from 7 Mass. Rep. 483, have been relied on in argument for the plaintiff in error. Any influence of these cases in favor of the plaintiff, the court is unable to perceive. The former was an action upon a lost promissory note; the latter was also an action upon a note, in which the question of diligence was chiefly involved. In these cases the only points ruled which seem to have any affinity with this case, were that in the first, the existence at one period, and the subsequent loss or destruction of the note was required to be clearly shown; and in the second it was decided that, as a general rule, the demand for payment of a note must be accompanied with the possession of the [*326 note. Accordingly, in the case from 8 Pick., the existence and subsequent loss of the note were established by a disinterested depositary with whom it had been lodged. These cases were ruled, and most properly so, upon the principle that a debtor, when he makes payment, shall receive the best allowable protection against a repetition of the same demand upon him, viz.: his bond or his note when either has been given. The cases of Clark v. Young & Company, 1 Cranch, 181; of Harris v. Johnson, 3 Cranch, 311; and of Morgan v. Reintzel, 7 Cranch, 273, all turn upon the same principle. In the plaintiff's first bill of exceptions the evidence tendered is vague and confused; it establishes nothing pertinent to the point raised, and does not warrant, as a legitimate conclusion from it, the instruction asked for. The court, therefore, properly denied that instruction.

Now, the first thing which strikes the attention with respect to the testimony of the wit-affirm. ness is, that he does not prove with certainty, The cases of Swift v. Stevens, from 8 Pick. if at all, the existence of any instrument whatsoever; he saw none, and cannot give a clear and certain description of it as reported to him by the plaintiff; he does not know whether it was a due-bill or a note. In the next place, the witness does not disclose whether this note or due-bill, or whatever it may have been, was given for the benefit of Davidson, or for that of the plaintiff; for we are told that the plaintiff professed to have settled with Roach his own private accounts, as well as on account of one Davidson. Now, although there was a contract between Roach and one Davidson for the building of the outlet lock, yet there is nothing in the plaintiff's contract with Roach, nor any proof in the record, which connects the plaintiff, or his undertaking, or the obligations of Roach to him, with any transaction between Davidson and Roach. Then, when the plaintiff is represented as speaking of a settlement with Roach on account of Davidson, distinguishing it at the same time from a settlement of his own private account, and as speaking of a note or due-bill taken upon these settlements, it would be as regular to presume that such note or due-bill (if it were practicable to conjecture which it was) belonged as much to the one settlement as the other. Upon these loose statements the court were asked to instruct the jury, that if they believed the account in suit was settled by a due-bill or note given by the defendant's intestate to the plaintiff, then the presumption is, that the said due-bill or note has been paid. And further, that if they believed from the 825] *same evidence that the defendant's intestate, in 1831, closed the account in suit, by giving to the plaintiff his due-bill or note, payable on demand, and that immediately afterwards, the plaintiff with Philip Roach came to Washington for the purpose of receiving from

In the second bill of exceptions the court is asked to instruct the jury that, should they be of opinion, from the said evidence, that Philip Roach made and delivered his negotiable note

N error to the Circuit Court of the United

payable on demand to the plaintiff for the States for Washington County, in the Dis

trict of Columbia.

The case was argued by Mr. Brent, Jun., for the plaintiff in error, and by Mr. Bradley for the defendants.

Mr. Justice Daniel delivered the opinion of the court:

balance due him on a final settlement of all accounts, that the plaintiff cannot recover, unless he has produced the said note, or proved that the same was lost, or that the same was cancelled, etc. This bill of exceptions may be disposed of in very few words. The instruction it prays for purports to be founded upon the evidence contained in the former bill; and it asks, that if the jury shall believe, upon the This case arises under the attachment law of evidence, that Philip Roach did execute and the State of Maryland, passed in 1795, and deliver to the plaintiff his negotiable note pay comes before this court upon a writ of error to able on demand, then, etc. Now, in the evi- the Circuit Court of the District of Columbia, dence referred to, there is not one word con- for Washington County, within which the law tained relative to a negotiable note made and of Maryland above mentioned is in force. The delivered by Philip Roach to the plaintiff, or to proceedings instituted in this case, although any other person. It would have been improper commencing by an attachment, and upon what for the jury to have embraced in their contem- is termed a short note in lieu of a formal decplation or belief anything concurring a negotia-laration, assume, nevertheless, the essential ble note; and improper for the court to have character, and in some respects the usual forms given them any instruction concerning a docu- of the action of assumpsit, and must be govment which was not in the cause, and about which not a tittle of evidence was adduced from any quarter. In refusing the instructions asked for, as set forth in this second bill, the Circuit Court have also decided correctly; and this court, approving its decision upon both the points adjudged by it, doth affirm the judgment of the Circuit Court.

erned by the "rules applicable to such an [*328 action. The defendants dissolved the attachment by appearing and entering special bail, and pleading non assumpsit; and upon the issue made upon this plea, the cause was tried in the Circuit Court.

Upon the trial, exceptions were taken in five separate instances to the rulings of the Circuit Court, and in each of them the exception sealed by the judges is made a part of the record. To test the accuracy both of the decisions thus pronounced, and of the objections alleged against them, it will be necessary to advert to

327*]* WILLIAM H. FRESH, Plaintiff in the facts adduced in proof.

Error,

V.

It appears that on the 23d of August, 1832, the defendants in error entered into a covenant

RIAH GILSON, Christopher Midlar, and James with the Chesapeake and Ohio Canal Company,

Fresh, Defendants in Error.

Subletting of contract-evidence-instructions to jury-rights founded on a deed to be enforced according to that deed-variation of deed by parol—assumpsit.

Liability for the acts of others may be created elther by a direct authority given for their performance, or it may flow from their adoption, in some instances from acquiescence in those acts. But presumptions can stand only whilst they are compatible with the conduct of those to whom it may be sought to apply them; and must still more give place when in conflict with clear, distinct, and convincing proof. The Circuit Court of the District of Columbia admitted as evidence a statement by one witness of what had been testified by another on the trial of a cause, to which the plaintiff in the cause and against whom the evidence was to operate was not a party. Held that this was error. Wherever the rights of a party, founded upon a deed, are depend ent on the terms and conditions of that deed, the Instrument thus creating and defining those rights must be resorted to; and must regulate, moreover, the modes by which they are to be enforced at law These identical rights cannot be claimed as being derived from a different and inferior source. the deed be in force, all who claim by its provisions When the contract contained in a deed has been varied or substituted by the subsequent acts or agreements of the parties, thereby giving rise to new relations between them, the remedies, originally arising out of the deed, may be varied in conformity with them. An action upon the deed would not be insisted upon, or permitted, because the rights and obligations of the parties to the suit would depend on a state of things by which the deed had been put aside.

must resort to it.

for certain rates and prices stipulated in a covenant sealed between the defendant and the company by their president, and in a specification appended to the said covenant, to construct, in a substantial and workmanlike manner, culvert No. 116, on the 150th section of the Chesapeake and Ohio Canal; and to prosecute the work upon the said culvert without intermission, with such force as should in the opinion of the resident engineer secure its completion by the first day of August, 1833.

On the third day of November, 1832, a covenant was entered into between the plaintiff in error and the defendants, or rather with Rish Gilson, one of the defendants, styling himself superintendent for Gilson & Company, by which the construction of the culvert No. 116 was let to the plaintiff at the contract prices to be paid by the company for the work, with the exception that Fresh should pay to the defendants, from whom he took this contract, the sum of one hundred dollars, which sum appears to have been a profit reserved to themselves by the first contractors upon the transfer of their undertaking. In this second covenant, the plaintiff in error bound himself "to be urgent in the performance of the work, so that it might progress in accordance with the speciAnd fication and directions of the engineers." further, that in the event of neglect or failure on his part, the defendants should have authority to declare the work abandoned, to assume the direction, and to complete it at the plaintiff's expense. Having thus obtained a contract under the defendants, the plaintiff, on

the second day of May, 1833, made an agree-sel for the plaintiff moved the court to exclude ment with Elijah Barret for building of this from the jury the orders drawn by Barret in 329*] culvert by the latter; stipulating to favor of Harris, as well as the evidence offered pay Barret the price of one dollar twelve and a to prove the payment of those orders in April, half cents for every perch of stone work of 1835, more than two years after their payment twenty-five cubic feet, upon a certificate and had been forbidden by the plaintiff: the court approval of the engineer or superintendent of admitted this evidence to go to the jury, and masonry as to the fidelity of the work. The this produces the question presented by the plaintiff on the trial offered these several con- first bill of exceptions. Cracts in evidence; also an account against the defendant stated, on the 24th of December, 1833, for masonry, excavation, and paving performed, and for cement not supplied by the plaintiff in the construction of culvert 116; on which account, after allowing a credit of one thousand one hundred and forty-two dollars and seventy-three cents, a balance of one thousand three hundred and forty-three dollars and one cent was claimed. This was the account on which the warrant of attachment issued. The plaintiff further proved the delivery of the letter dated December 25th, 1833, addressed by him to Wells, the agent of the defendant, in which he required a statement of his account with them, and expressly forbade the payment to Elijah Barret of any amount whatever.

The defendants, to rebut the plaintiff's demand, offered the account (exhibit ̊C), commencing December 5th, 1832, and terminating the 21st of December, 1833, amounting to the sum of one thousand three hundred and sixty-nine dollars and thirty-six cents; and proved by their clerk that the work on the said culvert was completed on the 21st of December, 1833, and that the account last mentioned was received by the plaintiff without objection except as to the quantity of cement charged therein. The defendants likewise offered in evidence several orders, numbered from 1 to 7, drawn by Elijah Barret, by himself and his agents, in favor of William Harris, upon the defendants, at different periods during the autumn and winter of 1833, and claimed the benefit of them as payments to the plaintiff. These orders purport to have been paid all on the same day, viz., April 29th, 1835; rather more than two years posterior to the date of the letter delivered to the defendant's agent, positively forbidding any payment to be made to Barret or to his order, and nearly one month after the institution of this suit. And it is admitted that the orders were never shown to the plaintiff, nor expressly recognized by him at any time. The defendant offered seven other papers purporting to be orders and due-bills signed and certified by Elijah Barret, in November and De330*] cember, 1833; three of them said to be for work done upon culvert No. 116, and amounting in the whole to two hundred and seventy-three dollars and fifty cents; these last orders and certificates, it is also admitted, were never shown to the plaintiff, nor acknowledged by him, and it does not appear that they have ever been paid. Oral testimony was also introduced on the part of the defendants, in order to show that the work had been abandoned by the plaintiff, and its completion assumed and accomplished by the defendants; and on the part of the plaintiff, like evidence was offered to prove that he continued on the work and labored on it until it was finished on the 21st of December, 1833.

Upon the foregoing state of facts, the coun

We are unable to perceive upon what correct legal principle this question was ruled as it has been by the Circuit Court. There is no express power apparent in the record; nor indeed was any attempted to be shown in the proofs, existing in Barret, to bind Fresh for any amount with any person. It is true, that under the contract between them, the former would have had a claim on his own behalf, whenever he should have fulfilled his undertaking; but not even then until he should have procured a certificate from the engineer of the company. But the right or claim he would then have acquired, differs essentially from the pretension sanctioned by the decision of the court, which amounts to an evasion of the stipulated test of his own conduct and his own rights, and to a claim by that very evasion to bind his employer ad libi. tum to any amount and to any person. Nor is it perceived that the admission of these orders was warranted by any presumption arising from the fact that orders previously drawn by the same person were comprised in the account proved to have been presented by Fresh, and not objected to by him, except as to the quantity of cement charged therein. Liability for the acts of others may be created either by a direct authority given for their performance, or it may flow from their adoption, or, in some instances, from *acquiescence in those acts. But [*331 presumptions can stand only whilst they are compatible with the conduct of those to whom it may be sought to apply them; and still more must give place when in conflict with clear, distinct, and convincing proof. 3 Bac. Abr. 318 H, Presumptive proof; 4 Starkie's Evidence, 53. The letter of the plaintiff Fresh, delivered to the agent of the defendants more than two years anterior to the alleged payment of the orders drawn by Barret, fully accords with the character of the proof just described; it justified no presumption of right or authority in Barret to make, nor of any obligation upon the defendants to pay those drafts; and the Circuit Court therefore erred in permitting them to be given as evidence, instead of excluding them wholly from the jury.

The next question arises upon the admissibility of the second series of orders and certifi cates or due-bills signed by Barret, amounting together to three hundred and seventy-two dollars and fifty cents, embraced in the second bill of exceptions. These orders are obnoxious to even stronger objections than those existing against the former orders drawn by Barret; they not only, like the former, were never (as is admitted) shown to or acknowledged by the plaintiff, but they carry on their face no receipt nor other semblance of payment, nor is proof attempted aliunde, that the defendants have given, or are bound to give, any consideration for them. The Circuit Court should have excluded these papers also.

It is next stated that in addition to the evi