Wynn, Shannon & Co. rs. Cox.

Brockett vs. Foscue, how manifest the justice of the plaintiff's claim in this case, how unconscientious the defence. And under such circumstances, how desirous are Courts to ascertain, if possible, some solid ground of law, on which the right can rest. But at every turn, this stubborn rule stares you in the face, that you cannot by parol contradict the writing.

On this rule, Lord Coke observes, "it would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth and agreement of the parties, should be controlled by an averment of parties, to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purchasers and all others in such cases, if such nude averments; against matter in writing, should be admitted." Earl of Rutland's Ca. 5 Rep. 26, a. first resolution.

And again, in the language of Lord Ellenborough, it might be said, "if the parol evidence, were admissible in this case, in what instance might not a party, by parol testimony, superadd any term to a written agreement, which would be setting aside all written contracts and making them of no effect."

We will only add, that we not only consider this a salutary rule of law, but it is equally a rule of common sense, that written contracts should not be controlled by oral testimony. In despite of hard cases, which usually make bad law, we have labored to uphold this rule in all its stringency. The various conceptions of different minds on the same subject, the liability of all persons to misapprehension and forgetfulness, the influence of passion, prejudice and interest, render parol agreements at all times uncertain. But litera scripta manet. We hold, that the verbal evidence in this case, was improperly admitted, and on this account a new trial must be granted.

We are not sure but that the motion for a new trial in the Court below, ought to have been sanctioned, on the ground that the verdict of the jury was contrary to evidence. Two witnesses were examined in behalf of the defendant, R. R. Cox, his father, who sold the slaves to the plaintiffs, and Gabriel H. Cox, a brother. Their evidence is pretty much the same. The latter being only present a part of the time while the trade was negotiating. I will refer to the testimony of the old gentleman; one whose recollection is full and distinct, respecting the transaction. He states that his reason for making the sale was, that the

Wynn, Shannon & Co. vs. Cox.

defendant was indebted to the plaintiffs more than he was able to pay, and not wishing to see a son of his involved, and without the means of satisfying his just debts, and understanding that suit was about to be instituted against his son, and hoping to relieve him from harrassment, he went to Griffin, and sent for John O. Wynn, one of the firm of Wynn, Shannon, & Co. to come and see the negroes. On the arrival of Wynn, he informed him of his motive in selling the property, and proposed that if he would give him a fair price for the negroes, and wait, and not sue for the balance, he would let them go. "The precise terms," says this witness," of the contract, were, that $1000 was to be given for the negroes, $900 was settled on the spot, for defendant, in notes taken from said Wynn, and credits, and $100 in plaintiffs' note, payable to me in ninety days." The witness continues: "He promised me not to sue for the balance, and bound himself to give defendant collecting business for plaintiffs in as many counties as defendant could attend, and which he represented would be more than sufficient to pay the residue of the debt; and that if the defendant had to be sued for the balance, Wynn psomised that he would give to defendant the collecting of the claim against himself, and that, in consideration of these promises, he let the negroes go at $200 less than he would otherwise have taken from them."

Which of these undertakings, on the part of the plaintiffs, will the defendant seek to enforce? To give him collecting business sufficient to discharge his remaining liability, is one thing, and to allow him to sue himself, another, and a very different agreement. Can the true intent and meaning of this transaction be misunderstood? The father of the defendant, understanding that his son was likely to be pressed, seeks an interview with his creditor. He is prompted to take this step by the most praiseworthy motives. The parties meet and talk the matter over. The price of the property, and the mode of payment, are agreed on; $900 of Pinkney B. Cox's debts is cancelled, and the purchasers give their note at 90 days for the other $100. And this is the entire contract, and it is reduced to writing. The creditors, in a spirit of corresponding good feeling, promise to wait for the rest of their debt. (The proof shows that they delayed more than two years before this action was commenced.) Also, that they would patronize the defendant in his profession, ex

Wynn, Shannon & Co. vs. Cox.

pressing the belief that their collections in that region of country, would pay him enough to meet the balance of his liability. At any rate, if they were forced ultimately to sue, they agreed that they would employ him to sue himself. Was there, in all this, any legal or valid agreement, which would extinguish the notes which are the foundation of this suit?

Mr. P. B. Cox, himself, does not seem so to have understood it, For, on the 22d of July, 1843, some seventeen months afterwards, he addressed a letter to the plaintiffs, in which he says: "Money is so scarce I can hardly get enough to live on, let alone what I oughtto have for you. I have sold property of the Co. (meaning the Monroe R. Road Co.) but it is hung up for division, and claimed by other fi. fas. so that I will have to sell again, which, as you will see shortly, I am about to do. I write no more, but am yours, &c." And again, on the 25th of December, of the same year, (1843,) he writes: "I have some money hung up, arising from the sales of property of the Monroe R. Road Co. which, if I be lucky or fortunate enough to obtain, you shall be paid; you shall be, if I am not left out of it."

Now, without deciding the question mooted at the bar, as to whether or not the defendant would not be bound upon these subsequent promises, based upon the old debt, I would submit, that they show most conclusively that Mr. Cox did not consider himself protected from payment, under the original contract made with his father. He acknowledges his liability, and that the money ought to be paid, and while apparently using all diligence to obtain the means of meeting this demand, he regrets his inability to do so, owing to the scarcity of money. But in these later writings, or in the first, not one word is uttered as to the agreement which is now sought to be established by the parol testimony.

The judgment below is reversed, and the cause remanded, with instructions to order a new trial.

Johnson es. Hall.

No. 42.-THOS. D. JOHNSON, plaintiff in error, vs. George W. HALL, defendant.

[1.] Where notes were placed in the hands of a Justice of the Peace for collection, by suit, anu while the suit was pending, the defendant paid them off, and took up the notes from the Justice, before judgment—held, that the Justice was a collecting officer, and authorised to receive the money, and liable, under the Statute of this State, to be ruled therefor in the Superior Court, for money received or collected by him, in his official capacity.

Assumpsit, in Pike Superior Court, tried before Judge FLOYD, March Term, 1848.

This action was brought in the Court below, by the defendant in error, against the plaintiff in error, upon uine promissory notes, eight of which were for thirty dollars each, and one for six dollars and twenty-three cents, said notes, dated 21st March, 1840, and due the 9th September thereafter. Instead of making profert of the notes, the first count specially alleged as follows: "And your petitioner sheweth, that on the sixth day of March, in "the year eighteen hundred and forty-one, he placed said notes "in the hands of Jacob Crow, constable of the four hundred and "ninety-eighth company district of Georgia Militia, in Henry county, for collection; who brought suits thereon in the Justice's "Court of said district, returnable to the April term of said Jus"tice's Court, of said district, in the year eighteen hundred and forty-one, before Henry Banks, then and there a Justice of the "Peace, in and for said district; that the said Thomas D. John"son, at the Court to which the said suits were returnable, craft"ily, subtly, and intending to deceive and defraud your petitioner, "then and there induced and prevailed upon the said Henry "Banks, Justice of the Peace, as aforesaid, to receive of him, the "said defendant, the sum of two hundred and forty-six dollars "and twenty-three cts., with the interest then due upon said prom- · "issory notes, in depreciated, uncurrent, and valueless Bank notes, "to-wit, of the Monroe Rail Road and Banking Company, which "the said defendant then and there well knew to be uncurrent "and valueless, and which the said Henry Banks, Justice of the "Peace, as aforesaid, did then and there receive, and did then " and there deliver up to the said defendant, his promissory notes

Johnson vs. Hall.

"aforesaid; which Bank notes your petitioner had previously re"fused, and did then and there refuse and still doth refuse to re"ceive in discharge of said promissory notes." The second count declared upon the indebtedness of the defendant, by virtue of nine notes of like character, with those mentioned in the first count, in the sum of $246 23, excusing profert under the circumstances above detailed.

The defence consisted of the pleas of non assumpsit, and of the Statute of limitations, first, because "no right of action hạth "accrued to the plaintiff, to sue for and recover damage by reason "of the said defendant having induced and prevailed on said Henry Banks, Justice of the Peace, as aforesaid, to receive "said bills as is pleaded in plaintiff's declaration, within four "years next preceding the commencement of this suit." And secondly, "that he, defendant, did not undertake or promise, in manner or form as the said plaintiff hath above thereof set “forth and alleged within four years previous to the commence"ment of this suit."

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When this cause came on to be tried in the Court below, the counsel for the defendant, Johnson, demurred to the declaration

1st. To the first count, because the gist of the action in this case, was the alleged fraud of the defendant, in inducing the Justice of the Peace, who was a collecting officer and agent for the plaintiff, in receiving the money, to accept the bills of the Monroe Rail Road and Banking Company, in payment of the notes, and such fraud was not plainly, fully, and distinctly set forth in the declaration; nor did the declaration set forth that any false, fraudulent, or deceitful means were employed by the defendant, to induce the acceptance of the bills in payment of the notes, nor did the declaration shew what those means were.

2d. Because from the plaintiff's own statement in the declaration, the debt had been paid to the Justice of the Peace, authorised by law to receive the same.

3d. Because, it did not appear, from the declaration, that either the Justice of the Peace or the plaintiff had ever relied on any representations of the defendant, or that either of them had ever been defrauded or deceived thereby.

4th. Because, if the plaintiff dissented from the act of the Justice of the Peace, in receiving the money in satisfaction of the debt, he should have done so within a reasonable time, and that