Geoge Miller assignee vs. Wm. Bagwell, and others.
Where a bond was given to the sheriff tor the prison bounds, stating the consideration to be the fact of the defendant’s being in custody under a to. sa. extrinsic evidence is inadmissible to shew that the defendant was confined in consequence of a surrender of bail after the judgment, but by stsadvortsncc the bond was drawn for the prison bounds. *563arel'evidence-is inadmissible to prove a different, greater or other consideration than that stated in a bond, and which should have been inserted, when it is not stated in the bond, “ andfor other considerations.”
JTor can a recital of an important fact be varied by parol evidence; but on thecontrary itis always to be taken most strongly against him who makes " it; and in this case the recital of theca, sa. was considered the recital of the sheriff and not of the obligor.
%is nota safe or salutary rule to allow a contract to exist partly in writing and partly in parol.
This case came on for trial the second time, before Judge Huger, ,'Spartanburg, Spring term, 1826.
This action was brought on a bond purporting to have been given to the sheriff of Spartanburg, under the prison bounds act. The condition which was made part of the record by a plea of performances was in these words: “ The condition, Stc.is such, that if the above bound Muse Tollerson, who is in the custody of the aforesaid Thomas Pool, by virtue of a writ of capias ad satisfaciendum, at the suit of George Miller, shall remain within the rules, bounds and limits of the jail, Stc. and also in forty days render to the clerk, he. a schedule, on oath or affirmation, of his whole estate, or so much thereof as will satisfy the sum due on the aforesaid writ of capias ad satisfaciendum. by force of which he stands confined — then the above obligation to be of no effect, else to remain in full force and virtue.” The bond was dated the 14th of January, 1823. Besides performance, the defendants pleaded several other special pleas in bar; two of which were heretofore sustained in the court of appeals. The second plea was actio non, he. because the defendants say, that the said Muse Tollerson was not in custody of the said Thomas Pool, by virtue of a writ of capias ad satisfacien-dum, at the suit of the said George Miller, as set forth in the condition of the bond, he. To this plea the plaintiff replied specially, as follows:. actio non, &c. because he says that although no ca. sa. had issued against the said Muse Tollerson, at the suit of the plaintiff, yet that the said Muse Tollerson had originally *564been held to bail in the said action, having been arrested on a bail writ regularly issued, in March, 1822: that at fall term, 1822, a verdict was obtained in favor of the plaintiff, on which judgment was signed on the 25th, 1822, and execution issued the next day, against the said Muse Tollerson, the defendant: that on the 9th of January, 1823, after finaljudg-snent and execution as aforesaid, the said Muse Tollerson was surrendered to the sheriff by his bail, in discharge of themselves; by means whereof he became and was in custody of said sheriff, by virtue of the said surrender by his bail as aforesaid. In order to obtain for the said Muse, the benefit of the. act establish.ng prison bounds, then and there freely and voluntarily made and executed the aforesaid writing obligatory, and the said Muse was thereby then .and there admitted to the present rules in pursuance of the provision of the said act. But the condition of the said bond, the said Muse has in no wise complied with or performed. And the judgment and execution aforesaid of the plaintiff remain wholly unsatisfied, in no wise vacated or set aside &c. and prays judgment. To this replication the defendants demurred generally, and the plaintiff joined in demurrer.
The fourth special plea was action non, &c. because on the 10th day of January, 1823, the goods and chattels, lands and tenements and real estate of the said Muse was levied on by virtue of a writ oí fieri facias in favor of the said George Miller and sold by the sheriff on the first Monday in February next ensuing, by virtue of the said levy and execution, at the instance of the said plaintiff. The replication to this plea was precludi %on, &c. “ B-cause after final judgment had been entered up and signed in favor of the plaintiff against the said Muse, and execution by jH. fa. had issued; to-wit on the 9th ofJatiuary 1823, the said Muse was surrendered to the sheriff by his bail, in discharge of themselves, whereby he became and was in lawful custody by the said sheriff; that on the 14th January, 1823, the said Muse aud other defendants well knowing the premises, and the said *565Muse then and there being in custody of the sheriff as aforesaid by virtue of the said surrender, and in order to obtain for him the said Muse, the benefit of the act establishing prison rules, then and there freely and voluntarily made and executed the writing obligatory on which this action was brought; and the said Muse was thereby, then and there admitted to the prison rules, but the condition of the said bond, he hath in no wise complied with or performed. And that although the execution of the plaintiff was, with many others of an older date, levied on the property of the said Muse, yet the said levy was made before the said writing obligatory was executed; and although the said property was afterwards sold by the sheriff, yet the same was not sold at the instance of said George Miller, or for his benefit, and no part of the sum arising from the sale of the said property or of any other property of the said Muse, was applied to the payment of the plaintiff’s judgment and execution, but was wholly applied to judgments of an older date, and the judgment and execution in favor of the plaintiff was at the time of sealing and delivering of the said writing obligatory, and still is, wholly unsatisfied, and in no wise vacated or set aside, and prays payment. To this replication the defendants demurred generally, and the plaintiffjoined in demurrer.
His honour the presiding judge gavejudgment in favor of the defendants on both demurrers, which the plaintiff now •moved to set aside
W. Thompson for the motion.
The bond would have been good, if taken without stating the authority or consideration. The authority can be the only question in dispute, not the recital of it. Cited 10 John. Rep. 456. Holloway vs. Birthwhistle, 2 ott and JlPCord 350, to shew that a recital may or may not be made; and if made, it R not fatal. Should there be a mistake in the recital, it is sur-plusage. The question at the last court was, whether there was a ca. sa. in the case. Now we do shew the authority; which, though, by mistake, not that stated in the. *566bond, is the true authority, and a good one. Could see no difference between this case and that of aocwell vs, Harrison, 2 JVott Cord 349. A recital is the re~ bersal of some thing done before, and is not conclusive. (5 Jacob L. D. Jenbin’s Cent.) A party should not loose by a clerical error of the sheriff. The consideration for this bond was to get rid of legal imprisonment, and it can make, no difference whether under a ca. sa. or under a surrender of bail.
Irby contra
allege a matter not contained in the plea is a departure. This question is decided by the former appeal. The sheriff in the bond stated a ca. sa. as his authority,, now they pretend a surrender of bail. The authority would have been good, if correctly stated; but under the State of pleading no other authority could have been shewn.
W. R. Davis.
'Í he case of Holloway vs. Birthwhis’le, is very different from the case of a bond. The sheriff may shew in a deed any authority. It is no part of the consideration. But in this case, it was the consideration of the bond which is stated in the bond; and if the wrong consideration be stated it is the misfortune or negligence of the sheriff. He cannot now be allowed to change his ground and shew a different consideration for the bond, that stated being wrong. The, former opinion in this case is conclusive of the matter.
B. Earle, in reply.
The replication states that no ca. sa. issued, but goes on to state the true state of the case. He was in custody after final judgment; and the question is whether such a bond as this can be taken after final judgment and surrender of bail? Though he were in prison under mesne process, the bail having been ta en under the writ, no ca. sa. being out, still the act was voluntary, with a full knowledge of ail things. If the defendant voluntarily choses to state a .ca. sa. knowing there was none, he should be estopped from saying the authority was not as he states in his own bond. The securities here sued are alleged to have known the whole circumstances, and *567it was no departure in the replication to state the true facts, and that the defendant knew them. Besides, the declaration states the same facts, and there is no departure from the declaration; the condition is not mentioned. Defendant’s praying oyer of the bond, did not make the condition of the bond part of the plaintiffs pleading.
Per Curiam.
Craving oyer of the bond made the condition of the bond part of the pleading.
Earle in continuance.
Cited Phillips 423-4.) The -consideration of the bond was the lawful confinement and the discharge from it. It is competent to shew that he was in lawful custody by a different lawful process. The proof is not contradictory to the deed.
Colcock, J.
In this case the demurrer was properly sustained. Enough had been said in the opinion of the court at the last session, to shew that the plaintiff must recover on the bond as it was, or not at all. Without following the counsel through the devious course of pleading which has been pursued, and which was necessarily so, because an illegal object was sought, Í ask what is the object for introducing parol evidence to prove that the consideration stated in the bond was not the true consideration, but that another and a better did exist, and ought to have been inserted? Now what is this but a violation of one of the best settled doctrines . known to the law? The point has been determined in some ten or twenty cases, which are reported in the late reports, and has arisen so frequently, not from any doubt as to the doctrine, but from the carelessness and inattention of men to the manner of doing business: and where an error of the kind is committed there is always a struggle to recover.
In the case of Shemerhorn vs. Vanderheyden, 1 Johnson Reports 140, where the same attempt was made, the court say, “ the consideration is expressly stated in the deed of assignment itself, and the parties are thereby precluded from setting up any greater or different consideration. And the reference is there to Black. 1249, Preston vs. Merceau. To *568allow of parol evidence for that purpose would be to extend or substantially to vary the language of a written contract. And so in Mumford vs. M‘Pherson, 1 Johns. 418, the court say, “ the contract between the parties was reduced to writing, and contained in the bill of sale, and recourse must be had to that instrument to ascertain its extent. It cannot be a safe or salutary rule to allow a contract to rest partly in writing and partly in parol,” So in the case of Hawes and Barker, Mr. justice Thomson, says, “ we must presume, after the execution of the deed, that the consideration men-tinned in the deed was the one finally agreed on between the parties.” Spencer, justice, concurred, and chief justice K>nt, said, he had struggled hard and with a strong inclination to support the action, “ but I cannot surmount the impediment of the deed, which contains a specific consideration.” And, lastly, in the case of Vraigley vs Hawes, 7 Johnson’s Rep. 342, which refers to several other cases, the court say, “ It is a settled rule, that wh. re the consideration is expressly stated in a- deed and it is not also said/or other considerations, you cannot enter into proof of any other, for that would be contrary to the deed.” It was said, that this is a mere recital, and therefore parol evidence may be admitted to shew that it is incorrect. But giving to the argument all the force it can have, under any view of it, if a recital be of an important fact it cannot be varied, and is always taken most strongly against him who makes it. And here I should consider the recital as made by the obligee, and constituting unimportant part of the consideration. In the very authority referred to, I Jacob’s Law Dictionary, 392, it is said, though a recital of itself may he considered as nothing, yet being joined and considered with the rest of the deed, it is material; and Leonard 112, is relied on». (I Dallas 67. Jacob Law Diet. 5, vol. title Recital of Deeds.
Waddy Thompson fy Earle, for the motion.
.Irby Davis, contra.