No decree can be made on the testimony of a single witness
unaccompanied by corroborating circumstances against a positive
denial by the defendant of any matter directly charged by the bill,
in the defendant's answer, or answer in support of his plea.
A replication to a plea is an admission of the sufficiency of
the plea, as much as if it had been set down for argument and
allowed, and all that the defendant has to do is to prove it in
point of fact, and a dismission of the bill on the hearing is then
a matter of course.
Under what circumstances a plea of a former judgment at law for
the cause of action is a good bar in equity.
The object of the bill in equity filed in this case was to
recover from the defendant Blake a sum of money arising from the
sale of a tract of land, called Yazoo lands, alleged to have been
made in 1795 by the defendant as agent of certain persons named in
the bill, in which lands the plaintiff, Hughes, claimed an
equitable interest in common with the immediate principals of the
defendants, and therefore to be entitled to a proportion of the
proceeds resulting from the sale. The bill also charged that the
defendant had rendered himself distinctly liable for a specific sum
of money in virtue of a certain order having reference to the
plaintiff's interest in the lands, drawn by one Gibson in
September, 1796, in favor of the plaintiff and accepted by the
defendant, with certain modifications and conditions, as
particularly expressed in the acceptance.
Page 19 U. S. 454
The defendant pleaded in bar both to the relief and the
discovery sought by the bill, a former verdict and judgment at law
rendered in his favor in the Supreme Court of Massachusetts in the
year 1810 upon a suit commenced against him by the present
plaintiffs in 1804, being long before the exhibition of the present
bill, for the same cause of action. The plea averred that the
judgment at law was still in force, that the matters in
controversy, and the parties in both suits, were the same, that the
whole merits of the case, as stated by the bill, were fully heard,
tried, and determined in the action at law and in a court of
competent jurisdiction, and that the judgment was obtained fairly
and without fraud, covin, or misrepresentation or the taking any
undue advantage. It was also averred by the plea that no evidence
has come to the plaintiff's knowledge since the trial at law
respecting any of the facts alleged in the bill, and which he did
not or might not have produced on such trial, and further that the
defendant has at no time, as alleged in the bill, obtained of a
certain E. Williams any allowance or payment for or on account of
his, the defendant's, being liable as bail for Gibson in the
plaintiff's bill mentioned, and for which liability he has claimed
in the action at law an indemnity out of a fund on the credit of
which he had accepted the order in favor of the plaintiff. The
defendant, then, without waiving his plea, proceeded to answer and
deny the matters alleged by the bill as circumstances of equity to
avoid the effect of the proceedings at law, and which he had
already denied by the averment in his plea.
Page 19 U. S. 455
To this plea and answer the plaintiff filed a general
replication in the usual form, and witnesses were examined by both
parties.
At the hearing, the identity of the causes of action were sought
to be established without the aid of collateral proof from a
comparison of the matters set forth in the bill with the averments
contained in the several counts of the plaintiff's declaration, it
appearing moreover that in the trial at law, the plaintiff had
submitted to the jury in support of these counts the depositions of
the same witnesses on whose evidence he relied in support of his
bill. The principal other question of fact related to the subject
of the negotiation respecting the lands before mentioned, alleged
in the plaintiff's bill to have taken place in 1814 between the
defendant and E. Williams, whose testimony respecting it was
insisted by the plaintiff not to be sufficient to outweigh the
effect of the positive denials contained in his plea and
answer.
The cause being heard on the issue joined and the proofs taken
in it, the court below decreed that the plea was sufficiently
proved, and therefore dismissed the bill with costs, and the cause
was brought by appeal to this Court.
Page 19 U. S. 468
MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and
after stating the pleadings, proceeded as follows:
In examining whether there be any error in the decree of the
court below, we shall have to inquire whether the plea of the
respondent is proved, and if so whether any other decree except
that of dismissing the bill could have been made by the court
below.
In examining the question of fact, that is whether the plea were
proved or not, it will be borne in mind that no decree can be made
against a positive denial of the defendant of any matter directly
charged in the bill on the testimony of a single witness
unaccompanied by some corroborating circumstance.
Page 19 U. S. 469
There is no pretense that there is anything untrue in any of the
averments which the plea contains on the subject of the proceedings
at law -- such as that a judgment was obtained by the respondent --
that the same is in full force, &c. The first averment in the
plea which will require a more particular consideration is the one
denying that the respondent had at any time obtained from E.
Williams any allowance or payment for or on account of his being
bail for Gibson in an action brought against him by one Evans. The
respondent had been permitted, as appears by the facts of the case,
to retain out of a fund on which the appellant had a claim a
considerable sum to save him harmless against this responsibility,
and which was in all probability allowed to him on the trial at
law. If, therefore, it could have been shown that Blake had been
fully indemnified or paid for this liability from any other
quarter, and that this fact had come to the appellant's knowledge
since the judgment at law, it would seem no more than equitable,
notwithstanding these proceedings, thus far to open the account
between them. But has this been done? The allegation of the bill in
substance is that Blake has been twice indemnified for the same
loss, or in other words that he had been twice reimbursed the
monies which he paid as the bail of Gibson.
This fraud which is so unhesitatingly charged upon the
respondent is not made out by any testimony in the cause.
Independent of Blake's positive and absolute denial, which is
equivalent to the testimony of one witness, there is nothing in the
deposition of Williams, who is the only
Page 19 U. S. 470
witness to this point, to establish the fact as stated in the
bill. This gentleman has been twice examined, once in the year 1805
as a witness in the trial at law and again as a witness in this
cause. On his first examination he stated that he was informed by
Blake that he held in his hand about $6,300 which had been received
of Henry Newman as an indemnity for his having become bail for
Gibson in an action by some person whose name he did not recollect,
on which pretense Blake refused to pay him this sum. In his second
deposition, which was taken in this cause, he swears that he was
informed by Blake that he had received from Newman about $6,000,
which he should retain in consequence of his liability to Evans as
the bail of Gibson, and that he, Williams, allowed the respondent
to apply this money for that purpose. Now admitting that Blake
retained these monies, and with the consent of Williams, who, it
appears however, had no interest in or control over them, with
intent to apply them in this way, where is there any proof whatever
in contradiction of Blake's answer that he ever did make that use
of them? He might have securities of Gibson of various kinds, the
avails of which he might have a right to retain for the same
object, but if he actually made only one appropriation for such
object, no one could complain. That the fund spoken of by Williams
which arose out of Newman's note was not applied to the indemnity
which has so often been mentioned, appears not only by an averment
in Blake's plea to that effect, but by the testimony of Gibson
Page 19 U. S. 471
himself, a witness of the appellant, who declares that the note
of Newman was subject to his order, that no privity existed between
Williams and Blake respecting the same, and that it had not been
placed in Blake's hands as an indemnity for becoming his bail. It
follows therefore that Blake could not have obtained from Williams
any allowance or payment on account of this responsibility, and we
accordingly find from the bill itself that on a settlement which
took place between Blake and Gibson in November, 1796, about two
months after the acceptance in favor of the appellant, the former
fell in debt to the latter a sum exceeding $2,000, the payment of
which by Blake is one subject of complaint in the appellant's
bill.
Now it is more than probable, that in this settlement, Gibson
received a credit for the very money of which Williams speaks, as
Gibson acknowledges it to have been a final settlement of all the
accounts between him and Blake. The Court therefore is entirely
satisfied that the averment in the respondent's plea which it has
just been considering is fully established and that the proof is
such as to leave no room whatever to believe that Blake was ever
repaid the moneys he advanced as the bail of Gibson from any other
fund than that which the appellant had consented should stand
pledged for that purpose. As little truth is there in the
allegation that what Williams could testify on this subject was
unknown to Hughes during the pendency of the action at law, for
Williams, who is examined as a witness for the
Page 19 U. S. 472
plaintiff in this suit, swears to the very fact which he had
been produced to prove in the action at law respecting the
declarations of Blake concerning Newman's note, and this he does
without any variation from his former testimony materially
affecting the present suit. The other averment, therefore, in the
plea that no new evidence has come to the appellant's knowledge
respecting the matters in litigation is fully and satisfactorily
established.
The truth of the plea being thus made out, what is to be the
consequence? If the rule of courts of equity in England is to be
applied, there can be no doubt. If a plea in the apprehension of
the complainant be good in matter but not true in fact, he may
reply to it as has been done here, and proceed to examine witnesses
in the same way as in case of a replication to an answer, but such
a proceeding is always an admission of the sufficiency of the plea
itself, as much so as if it had been set down for argument and
allowed, and if the facts relied on by the plea are proved, a
dismission of the bill on the hearing is a matter of course.
Whatever objection there may be to adhering strictly to this course
of proceeding in every description of cases, it is considered as
the long and established practice of a court of equity which ought
not lightly to be departed from. It is not perceived that any
serious mischief can arise from it. Counsel will generally be able
to decide on the merits of any defense which may be spread on a
plea, and if insufficient, it is not probable they will do
otherwise than set it down for argument.
Page 19 U. S. 473
Nor will they ever take issue on it but in a case which presents
a very clear and sufficient defense if the facts be proved. If a
replication should be filed inadvertently, the court would have no
difficulty in permitting it to be withdrawn. But if the plaintiff
will persevere in putting the defendant to the trouble and expense
of proving his plea, it must be from an entire conviction that it
contains a substantial defense, and in such case there is no
hardship in a court's considering it in the same light.
But without applying the rule which has been mentioned to the
present case, the Court has no difficulty in saying that the
matters set forth in this plea, which has been drawn with great
care and judgment, constitute a complete defense to the present
action and that the appellant has failed in showing any good cause
why the judgment at law should not be conclusive on all the matters
stated in the bill. Whatever claim he may at one time have had on
Blake for one-fourth of $75,000, secured by Barrel's notes, if
Blake knew at the time of taking them of his interest to that
extent, or for not taking a note for that amount in the name of
Hughes himself, it is very certain that with a full knowledge on
his part that Blake utterly denied a liability to account with
anyone but Gibson, he came to a settlement with him by allowing him
to accept of Gibson's draft in his favor in such way as to charge
the fund on which it was drawn with so many deductions as entirely
to exhaust it. And when he is apprised of this conditional
acceptance by his agent or the person who
Page 19 U. S. 474
presented the draft instead of returning it or making any
complaint, he acquiesces in it for seven or eight years, and then
brings an action to enforce this very contract of acceptance, which
he must have known put it in the power of the acceptor to make all
the deductions from the fund in his hands, which were designated in
the act of acceptance. After six years' litigation in a court of
law, it is now attempted to revive the same controversy, at least
in part, on an allegation that Blake received a compensation in
some other way than out of the fund on which the bill in his favor
was drawn for one of the liabilities mentioned in the acceptance.
That this was not the case is abundantly proved. But if Blake had
other funds of Gibson besides the note of Barrel, which he also
considered as under Gibson's exclusive control, out of which his
indemnity as bail might have been obtained, what right has Hughes
now to complain that such other funds were not applied in that way
after he had agreed or consented that this indemnity should come
out of those funds of Gibson in the hands of Blake, out of which he
was to be paid. Having come into the arrangement, Blake might well
think himself at liberty, as it seems he did, to apply the other
funds of Gibson in any other way which he and Gibson might think
proper. Whether Gibson be liable to the appellant for the
subtraction of any part of his fund for the payment of his debt is
a question not before the Court, but we cannot see that an
application of them in express conformity with the agreement of
Page 19 U. S. 475
the parties to this suit can give the appellant any claim on the
respondent. At any rate, the plea having denied all the allegations
which were relied on as grounds for removing the bar which it was
anticipated would be interposed to the appellant's bill, and all
the matters stated in the plea on which issue was taken, having
been fully proved, the Court is of opinion that the decree of the
circuit court must be affirmed with costs.
Decree affirmed. 1 Mason 515.
