Morrison v. Welty

Cochran, J,, delivered the opinion of this court. Tiie questions presented for consideration in this case, arise upon eight bills of exceptions, the first four taken to the admission of testimony, the 5th, to the granting of the defendant’s prayer, the 6th and 7th, to the refusal of the court to grant the instructions contained in the plaintiff’s 1st and 2nd ¹⁷⁴ prayers, and the 8th, to the refusal to admit evidence for the plaintiff, after the case was announced closed, and to an instruction given by the court upon two notes, then produced by the plaintiff to be delivered to the defendant and cancelled. The 1st, 2nd, 3rd and 4th exceptions were taken to the admission of the testimony of John Six, John J. and Willi am Welty, offered on the part of the defendant to establish a substantial defence, by proving the existence and contents of two notes given by the defendant to .the plaintiff, for the indebtedness declared on in this 'case. The exceptions to the admission of this evidence, we think, were properly taken.

Its admission was in violation of the rule, that the contents of a written paper cannot be proved by parol, without first giving evidence of its loss, or of notice to the adverse party to produce it, if in his possession. Such proof of loss, or notice to produce, as the case may'be, is a duly imposed as a necessary preliminary to the offering of evidence of the contents of a written paper. 3 H. & J., 97 . 11 G. & J., 247 . This determination of the question as to the inadmissibility of the defendant’s evidence, renders the expression of an opinion upon the question presented by the 5th exception, wholly unnecessary, as nothing material to th.e case would be ascertained by it. The 6th and 7th exceptions involve the same principles, and present the same questions.

The plaintiff, upon the evidence of the defendant, with that offered by himself, asked an instruction from the court to the jury, that he was'entitled to recover if they should find that the notes mentioned in the evidence were altered by the wife of the plaintiff before they went into his possession, by affixing seals to them without his knowledge and consent, or that of the makers of the notes. The prayer assumes that the indebtedness covered by the notes, and that claimed in this case, is the same, and that there was evidence that the notes were in the plaintiff’s possession, although there was nothing to show, at that stage of the c.ase, that they were produced by the plaintiff for delivery to the defend ¹⁷⁵ ant. Upon these, with the other hypothetical facts stated in the 6th and 7th exceptions, we are to consider: 1st, whether such alteration of the notes bars the plaintiff’s right to recover upon his count for money loanéd, the original indebtedness for which they were given? and 2nd, if the plaintiff’s right to recover on that count was not impaired by such alteration, whether he was entitled to the instruction prayed,- without the production of the notes for delivery to the defendant? We hold it to be well settled, that the acceptance of a security, or undertaking of equal degree, is not of itself an extinguishment of the original debt for which it is taken, if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled. 2 G. & J., 493 . 3 Gill, 350 . 1 Md. Rep., 514 . 3 Md. Rep., 265 .

That the notes in question-were given for an antecedent indebtedness is not disputed, and as the plaintiff’s case is stronger than those presented in the authorities referred to, from the assumption of the fact that he did’ not receive them until their