The first objection js, that the consideratio'n stated in the agreement, has not been paid. So far as respects the order drawn on Pelton, this is true. It is equally clear, as a general rule, that the instrument on which a party seeks relief in equity, will not be specifically enforced, unless it be supported by a valuable, or, at least, what equity calls a meritorious consideration. (1 Mad. 126. 4 John. Ch. 500.)
The appellant cannot, however, rest his defence on this ri 77 ground ; for having accepted a draft on Pelton, he was bound to use ordinary diligence, before any legal or just claim could arise to demand payment of the drawer. It does not appear that notice was given to Bennet, or any request ever made afterwards for payment.
Indeed, it is evident the appellant did not consider the order as the source of indemnity. The questionable nature of the title acquired at the Sheriff’s sale, shortly after, pointed out the expediency of obtaining title under the
mortgage, and to that object his views were directed. He cannot, therefore, now be permitted to resist the respondent’s claim, on the ground that the consideration was not actually paid ; when by his laches he has exonerated him, and by the course he pursued, manifested an intention not to consider the first contract any longer obligatory.
I will therefore proceed to examine the question, whether the purchase under the execution vested a valid title in the appellant. The agreement to convey, had reference only to the title then held, and cannot be applied to any subsequently acquired.
Every material allegation should be put in issue by pleadings. Sale not avoided where judgment set aside for error. Otherwise as to irreguJarity.There is no allegation that the respondent claims relief on the ground that the appellant afterwards procured title' by purchase under the mortgage. It is well settled, that, every material allegation should be put in issue by the-pleadings ; and no interrogatories can be filed, which da not arise from, or relate to some fact charged in the complainant’s bill. (James v. M’Kernon, 6 John. 543.) Admitting, however, that the respondent’s bill embraced the purchase under the mortgrge, no equity could arise whereby the respondent can claim the benefit of any interest in that purchase ; for it is fully proved that he declined paying any part of the purchase money due on the mortgage, and repeatedly expressed himself satisfied with the title he expected to derive from the appellant ; that he would not exert himself to raise the money, nor give himself any concern on that subject. Having thus voluntarily chosen to repose himself on the title acquired at the Sheriff’s sale, he must abide the decision on that title.
If, then, the appellant, at the time, had no title,. there is nothing upon which a decree for specific performance can operate. The execution was set aside by the Supreme Court for irregularity, at the August term, 1816. Whether this would invalidate the purchase, has not been expressly decided in our Courts.
It is well. settled, that where a judgment is reversed for-error, the sale under the execution shall not be avoided. (8 Coke, 192, Manning’s case.) The reason given is, that great inconvenience would follow a contrary doctrine, so that none would buy of the Sheriff in such cases, and execution of judgments would not be done. In 8 Coke, 284, it was held, that if an erroneous judgment is given, and the Sheriff by force of a fieri facias, sell a term of the defendant, and afterwards the judgment is reversed by writ of error, yet the term shall not be restored, but only the money i because the Sheriff was commanded and compelled by the King’s writ to sell it. (2 Bac. 506.) The uniform current of authority sanctions this doctrine.
. But there is a marked distinction between judgments re-*, versed for error, and executions set aside, for irregularity» *735in the latter case, the party is never excused, if the irregularity be such as renders the process void. One case is the fault of the party himself* the other is considered the error of the Court. (2 Wils. 385. Roe v. Milton, 1 Lev. 95. Carth. 275.) It is held, that by vacating the judgment, it is as if it never had been. (2 Bac. tit. Execution, 740. 1 Lev. 95.) In Parsons v. Lloyd, (3 Wils. 345,) De Grey, Chief Justice, observes, “ there is a great difference between erroneous process and irregular, (that is to say void) process. The first stands valid and good until it be reversed ; the latter is an absolute nullity from the beginning. The party may justify under the first, until it be reversed ; hut he cannot justify under the latter, because it was his own fault that it was irregular and void at first.” This distinction may serve to explain the cause, why a party can be restored to property, sold under an irregular, which is 'considered a void execution. With respect to acts done under it, or any protection derived from it, it is the same as if there had been no exe cution. Not so on a reversal for error. There the execution is valid to the time of reversal. It confers a right on the Sheriff to sell, and sanctions all legal acts done under it.
Difference between erroneous and irregular pro53 cess. Sale uncléi latter, to an innocent pur* chaser, may be avoided. Form of rule setting asido process.But it has been contended, that in either case, the purchaser is equally innocent, and has no knowledge whether there is error or irregularity. This reasoning is undoubtedly plausible, but while we are considering the reason of the riile, it must not be forgotton that the wisdom of the law is attentive to the rights of all parties. Would it not bé unreason* áble (and I will subsequently shew it unnecessary for the purposes of equal justice) to push the doctrine to the extent contended for ? The plaintiff in an irregular execution cannot justify the imprisonment of the body of the defendant, because it is considered void. Why should not his property be equally protected ? If the remedy is only against the plaintiff, who has abused the process of the Court, in many cases, it might be Worse than the disease. It is here proper to observe, that thé rulé setting aside the execution in this Case, states the cause to have been for irregularity merely* Such, I believe, is the general form of entry in our Courts, *736whether the facts make out a cáse of void or voidable, processJ When, however, the term irregularity is used; and- unexplained, it must be understood, as in Pdrsons v. El'oyd, before cited, and refers to void process. If there had been no explanation of the rule, the execution wo'uld have been considered Void, and the proceedihgs under it a nullity. This is well settled in Read v. Mdrkle, (3 John. 523.) In that 1 ‘ > { , cáse, goods had been taken add sold on an execution, which . was afterwards set dside for irregularity. It was held that the execution, being irregular, was a nullity, and that the time when the-statute of limitations began to run, was from the first taking of the goods, and not from the' time when the execution was set aside. In the opinion of the Court, it is laid down, that the case could not be distinguished from that of Parsons v. Lloyd, and that the execution being admitted tó be irregular and unexplained, is tó be considered as void.
i. Cl 111 (,'/ V G” pdu.ri.ty, what means. Whether the void”bein°^after year andBut the gródnd of irregularity,' in the present case, does appear. The appellant, in his answer, says it was because the execution issued after, a year and a day, without scire facias. I have not discovered any evidence expressly to prove this allegation. It seemed, however,' on the-argument, to be a conceded point. The invalidity of the title was contended on that ground. By thé testimony of Phinehas Bennet, it appears that the appellant informed him the execution was set aside, because the judgment had not been revived against one of the defendants, who had béen dead more than ¿ year and a day; and that it was understood, by the appellant, the respondent, and the witness, that the title derived under the sale would not be invalidated by the order of the Court setting aside the execution.
Benjamin Pelton testifies, that Richard W. Felton died on the 9th day of December, 1812. The legal effect of this latter irregularity was .not, as I remember, noticed by the counsel: the argument was confined to the former.
On this state of facts, the validity of the sale turns on the question, whether the execution is to be considered as void or voidable, more than a year and a day having elapsed after iudgment, and before execution, and there having been no revival by scire facias. I am of opinion that, for this cause, *737tíre execution was voidable merely : that all legal aids done under it, before it was set aside, were valid; and, consequently, the sale cannot be impeached on this ground.
A strange!protected in his purchase unde • a voiefable ft. fa,In the case of Jackson v. Robins, (16 John. 537) the present Chancellor considered the effect of irregularity, where a judgment had not been revived by scire facias. The decision was, that it was not competent to urge it collaterally, in an action of ejectment. He observes, “ the better opinion is, that if execution issue without any scire facias, the sale under it would not be void. It might have been voidable, and liable to have been set aside by the Supreme Court, as irregular. But, until that was done, the title would have stood.” It will be seen here, that this was not the point before the Court. The intimation that the title might be affected by setting aside the execution, is rather a suggestion in the course of argument, than the result of any decided opinion formed on the subject. Indeed, if we attend to the definition of voidable process, that it stands good until reversed-, and can only be reversed on application of a party to the suit, we shall arrive at a contrary conclusion. A stranger, in such a case, who becomes a purchaser, will be protected. When his title was acquired, the execution was valid. He cannot be affected by subsequent acts, over which he had no control.
In Jackson v. Bartlet, (8 John. 361,) it was held, that though the execution may have issued a year and a day after judgment, without revival by sci. fa. it was only voidable at the instance of the party against whom it was issued : It was a good authority for the sale.
So, also, in Reynold's v. Corp Douglass, (3 Caines, 271) it is laid down, that “ if, instead of bringing debt or scire facias on the judgment, the plaintiff sues out a ca. sa. the Court will set it aside ; but it has often been adjudged, and it is well settled, that the party is not responsible, in trespass, for suing out the ca. sa. for that the execution was voidable, only, and was a good justification until reversed. I think, therefore, it may be safely concluded, that this was not such an irregularity as, in any manner, to affect the sale.
Whether* void by defendant’s death. If against .goods and chattels, it would ■ have been regular. The charge as to the personalty survived against B. Belton. Where a sci. fa. should, in general issue, on a change of parties. Charge being on realty, did not sur-The other ground, that Richard W. Pelton died after judgment, and before execution, presents a question very different, in its nature and consequences, from the former. This I will briefly consider. The question here will be, whether the execution was not necessarily void, at the time it issued,inasmuch as it directs the sale of a defendant’s property, who was not then in existence, without first calling on his representatives, to whom that property, if he had any, must have passed, and who, being strangers to both judgment and execution, had no day in Court to shew that the process was either voidable or void.
If the execution had been against the goods and chattels, only, it would have been regular; for, at the common law, the charge upon the judgment, being personal, survived; so that where there are two or more defendants in a personal action, and one dies after judgment, execution may issue against the survivor, without a scire facias. The execution, however, must be taken out against all the defendants ; otherwise it will not be warranted by the judgment. (1 Lord Raymond, 244. 1 Sal. 319. 2 Tidd, 1029.) The reason given is, that there is no alteration of the record,- nor any1 new party made liable to the execution.
The charge upon the judgment, as to the personalty, survived against Benjamin Pelton; the executor of Richard was not liable at law. If he had been, then a scire facias had been requisite, to make him a party to the judgment. The general rule is, that where any new person is to be bet»' ter or worse by the execution, there must be a scire facias» (Pennoir v. Brace, 1 Salk. 3,19.)
In this case, the charge was on the realty, and did not survive ; the lands of both defendants were holden, the execution issued against both ; the right and title of hath were sold, and conveyed by the Sheriff to the appellant. For aught that appears, at the time the judgment was rendered, the deceased defendant had equal title to the lot with the survivor. This execution, then, was manifestly irregular, for we have seen that a str'anger cannot be affected with* out making him a party.
An execution cannot be said to be void,able merely, unless there is a party who pan avoid it. He may arrest the sale ; otherwise it is valid, if made to a bona fi&$purchaser, When process shall he said to he irregular, in. general. When irregular on its faceA scire facias ought to have issued against the survivor, to show why the plaintiff should not have execution against him of his goods and chattels, and of his lands and tenements ; and against the heirs and terre-tenants of the deceased, to show why the plaintiff should not have execution of the deceased’s lands and tenements, without mentioning any goods. (2 Tidd, 1033. 2 Saund. 72.) ,
I apprehend the reason why an execution is considered voidable merely, when issued on a judgment where no change of parties is required, and that an execution is void, when issued to charge the lands, after the death of the defendant, without scire facias, will be apparent on this further consideration: the term voidable implies, that there is a party who may avoid. When issued after a year and a day, and the parties not changed, the defendant may or may not, at his election, raise the question of regularity. The law permits the plaintiff to issue it, and considers it regular at the time of issuing, subject to be defeated, on the application of the defendant. If he apply before execution executed, the sale will be arrested, and all proceedings under it pease ; if he lie by until after sale, then, on the principle that the execution is erroneous process, and good until reversed, he cannot recover the goods sold ; he can only call on the plaintiff for the money recovered. In the other case, the act of issuing the execution was not warranted by law. This forms the substantial distinction between void and voidable process.
The rule is correctly laid down in Luddington v. Peck, (2 Con. Rep. 702) by Gould, Justice : “ the irregularity must be in the process itself, or in the mode of issuing it; it cannot be irregular when sued out according to the established course of practice.” If the state of facts existing at the time the process issued, be such as to render it unlawful, that is sufficient. We are not to understand by appearing irregular on the face of the process, that the irregularity is stated in the writ. It frequently appears by reference to extrinsick circumstances. Thus, a writ tested and returnable out of term, is irregular. When and where the terms are held by law, and how long the Court wa,s in session, is not stated in *740the writ; á knowledge of this is derived from other sources-,, and yet it may truly be said the writ is bad on the face of it. ' 'n the present case, on reading the writ, it does not ap- • pear that Richard W. Pelton was dead, but the fact was so ; knowledge of the fact, is derived aliunde.
No answer that one defendan. ’The execution may be said to be irregular and void ; for ■ it directs to levy on the goods and chattels' of a person not in being, and for want thereof, to cause the amount to be made of his lands, which may have been held by persons strangers to the judgment, and ignorant of the proceedings. This doctrine is fully recognized in Morton v. the terve-tenants of Croghan, (20 John. 106,) where it is held that a judgment creditor, who proceeds to enforce his lien ,pn real estate, if it become necessary for that purpose, to revive the judgment, must make all the terre-tenants parties to the scire facias.
Independent of adjudged cases, on the distinction of void and voidable process, it seems to me that to sanction such & proceeding, would be an invasion of one of the great principles upon which our security depends under a government of laws; that no person shall be put out of his freehold, or lose his goods and chattels, unless he be duly brought to answer, or be forejudged of the same, by due course of law. (1 R. L. 47.). It is undoubtedly in support of this principle that the cases hold a decided and unequivocal language; not that "in case of the death of a defendant after judgment, the plaintiff may or must issue a scire facias, but as in 2 Saund. 6, n. 1, he cannot have execution against the defendant without a scire facias. So also in 6 Bac. 112, tit. scire facias, it is laid down, that one who is no party to the record or judgment, shall have no writ of execution, but a sci.fa.for the alteration of the person altereih the process.
It is no answer to say, that one of the defendants was living, who might avoid the execution, and has, in fact, procured it to be set aside. The objection is, that the law forbade the issuing it, so as to affect the representatives of the deceased defendant. The survivor did not represent their rights, nor could he by any act, as co-defendant, surrender them. Neither can ft be successfully contended, that this execution was merely voidable as to Benjamin Pelton ; because, if the doctrine *741I have advanced be correct, it follows that the execution, in lot i, and not in part, is void. It is a settled and inflexible rule, that the execution, as issued, must be warranted by the judgment. (2 Tidd, 1029.) Now, if it be shown that this execution was, at least, void as it respected Richard JY. Pelton, it cannot be said to be warranted by the judgment. I am not aware of any qualification to the rule, by which process confessedly void in one material part, can be upheld and supported as valid for the residue.
Execution must be tested in lile time ..of defendant. The statute (1 R. L. 504, s. 11,) is not in affirmance of common law, but gives a remedy, which did not exist previously.If this judgment bad been against Richard JY. Pelton solely, it would not, I think, be urged, that after his death, an execution could, by authority of law, issue in his name, unless it be tested in his life time. (2 Tidd, 916. 7 D. & E. 20. 1 Bos. & P. 571. Vid. 1 Ves. 195.) As the charge upon the judgment does not survive as to the realty, it cannot alter the principle that he is a defendant with others.
The view I have taken is also supported by the act concerning judgments and executions, (1 vol. R. L. 504, sec. 11.) which gives a remedy to a purchaser of any lands or tenements upon any execution, who shall be evicted on account of any irregularity in the proceedings, or want of title in the person against whom such execution issued ; or by reareason of any prior incumbrance. This section is not in affirmance of the common law, but gives a remedy which did not exist previously.
In 8 Coke, 192, (Manning's case,) before referred to, it is expressly laid down as one of the reasons why the sale of a term sold under a fieri facias shall not he avoided, though the judgment be afterwards reversed, that the vendee would lose his term and money also. If, then, the purchaser would be without remedy at the common law, in the event that the sale became void on a reversal for error, it seems to me he would be equally so, where the proceedings are set aside for irregularity. The statute, then, came in aid of the common law, and provided a remedy not existing before. But the statute does not provide for cases where judgment is reversed for error, evidently, because the purchaser was already protected. It does provide for the case where the purchaser shall be evicted, on account of any irregularity in the *742proceedings, thereby adopting the distinction I have en« deavoured to establish, and recognizing the principle that a-purchaser will be affected by it, that he may be evicted on that ground, and, therefore, his money ought to be restored.
The word irregularity in statute, refers to void, not voidable proceedings. Were the articles rescinded? What the bill calls for on this head. And what is answered.I have shewn, that where an execution is set aside for irregularity, without further explanation, the term implies void, not voidable process. When the same term is made use of .in the statute, and that statute is remedial, it must be understood in the same sense. This construction, which I consider sound, does not reach the case of a sale under voidable process. The reason is obvious. The purchaser in that case could not be disturbed; the common law protected him., A statute provision became unnecessary.
On the whole, I feel myself bound to say, that although it is not practicable to lay down a general rule, applicable to all cases, drawing the partition line between writs void and voidable, it seems to me clear, that on principle and authority, this execution was void, and if so, no title was acquired by the appellant. To decree a conveyance, would be a nugatory act, and consequently, the respondent’s bill, on this ground, ought to be dismissed.
But admitting I am not correct in this conclusion, a further question presents itself, whether the articles of agreement were'rescinded by the consent of the respondent. Bet fore I attempt to analyze the testimony, it will be useful to inquire how far the answer of the appellant is to be considered evidence.
The bill calls on the appellant to answer the matters ah leged, as to making the contract, how it was disposed of, when, where and how the appellant got possession of the agreement, and under what pretences.
The appellant answers, that the respondent voluntarily concluded to abandon his possession of the premises, and all claim or title thereto, stating that he would have nothing further to do with it, and expressly authorized the appellant to make any arrangement with Phinehas Bennet and Phinchas Bennet, jun. the appellant thought proper, with respect to the premises; that afterwards, on or about the 27Z/t December, 1816, the complainant came to the village of Ithica, *743áiid by consent .of all the parties, the articles of agreement between the defendant and the Bennets were taken up and rescinded ; the seals being torn off by the express consent and agreement, and in the presence of the complainant.
Answer Ie«gal evidence» English authorities. American authorities. Ten Eyek v. Hart, M. S. 1817.This part of the answer is legal and competent evidence, because it is responsive to the bill, and within the discovery sought. There is undoubtedly some apparent contradiction in the English authorities on this point.
In Gilberts Law of Evidence, 45, before Lord Cowper, the bill was by creditors for ah account, and it was ruled, that when the answer was put in issue, what was confessed need not be proved, but the defendant must make out by proof, what was insisted upon by way of avoidance. But in 1 Vernon, 136, 208, it was decided, that if a man, by answer, swear that what he received as a servant, he paid over to his master, he shall not be put to answer again.
Whatever may be the rule in the English Courts, this question is at rest with us. In Clason v. Morris, (10 John. 542,) a replication had been filed to the answer, and witnesses examined. The material inquiry was, whether the ■answer had been disproved. Thompson, Justice, in his opinion, observes, “ the respondents having thought fit tó ■make the appellant a witness, they are bound by what he discloses, unless it is satisfactorily disproved. The answer is not to be discredited, or any presumption indulged against it on account of its being the answer of a party interested.” This rule applies to every case where the answer is within the discovery sought. The same principle is recognized in Field v. Holland, (6 Cranch, 24.) In the bill, the complainant called on the defendant to answer, whether certain judgments were discharged. Having answered as to this fact, which was material for the defendant, Chief Justice Marshall observes, “ the plaintiffs cannot now be allowed to-say that this answer is no testimony.” But the question has been decided in this Court, in 1817, in the case of Ten Eyck and others v. Hart. How far the answer was evidence, was one question before the Chancellor. On the appeal, it was argued and decided here. On the debit side of the defendant’s account, some of the items were not supported *744by proof, unless the answer was evidence. It was argued that it was evidenc e, because it was responsive to the bilb The defendant was interrogated, and required to set forth an account of all just debts owing by the intestate, and how and in what manner his estate had been applied or disposed of. By the 4th section of the decree in this Court, it was among other things decided, that the charges contained on the debit side of the account be allowed, unless disproved or falsified by the respondent; A division of the Court was taken on this section. This decision is in point," as to the case under consideration ; for the answer of the appellant here is not more than a fair compliance with the interrogatory in the bill.(a)
*745As to Phirtehas Bennet and Phinehas Bennet, jun. the artides were undoubtedly cancelled ; for on the same day they enter into a new agreement with the appellant. The evidence relied on to disprove the answer, is by showing that the respondent was not at Ithica on that day, nor had been *746f@r a considerable time previously. The appellant states. that previous to¡ the 27th December, 18,16, the respondent^ abandoned all claim or title. This is the material allegation, which is not disproved, unless by proving that the res-. pendent was not in Ithica on the 27ihx the appellant is cop-. *747sidered as swearing designedly false when he asserts the res-pendent came on that day.
P. Bennett ®yidence *i?f the respCstdentIt will be kept in mind, that the appellant swears posi - lively, respecting a transaction that must have been familiar to him, and so important, as not readily to be forgotten. Indeed, in the judgment of charity, I perceive no room to escape the imputation of false swearing, if his answer, in this respect, is not substantially true.
His Honor, the Chancellor, observes, “ there are five witnesses on the part of-the plaintiff, who declare positively, that the plaintiff was not in Ithica between the 1st of December, 1816, and the 25 th of January, 1817, and that the proof utterly destroys the credit of the answer.” After a very attentive perusal of thé case, I have not been able to arrive at the same conclusion. It may be romewhat tedious to examine critically the testimony of each witness. My apology must be, that we are called on to decide a question of fact, and the occasion renders it indispensable.
The first witness, Phinehas Bennet, says, he is confident the complainant was not in Ithica between the 1st of Decent* 1 her, 1816, and the 25¿/¿of January, 1817. The witness resided on the Fall Creek property, near Ithica, and the complainant at Chenango, a distance of 40 or 50 miles. It will not be pretended, that the witness meant to express any thing more *748than his belief. He had no actual knowledge of the fact. The reasons for this belief, are given, 1. Because the complainant removed from his residence in Ithica, to the town of Chenango, about the 31 st October, 1816. 2. Because the-witness did, during this period, urge the complainant by letter, to come tc Ithica, but that he did -not arrive before the 1st February, 1817. And 3. Because the witness believes that if the complainant had been in Ithica, he, the witness, could hot have failed of becoming acquainted with the fact.
Is jnconclusive and Vtn-Satifactory. v P. Befinet,jun s. evidence for the respondent is of the sanio character.This testimony is altogether inconclusive and unsatisfactory; It raises no more than a slight presumption, which the law cannot regatd. It cannot rank so high as mere negative testimony. The life, liberty or property of no mañ in thé community would be safe, if a witness swearing positively to a fact, could be discredited in this manner; To show lrw little reliance can be placed on the accuracy of this Witness in detailing facts, I refer to his answer to' the defendant’s tenth interrogatory, where he says the letter he ivrote to the complainant, urging him to come tcf Ithica, was written about the last of January, 1817 ; and yet we find in ansWer to the complaniant’s 8th interrogatory,the writing of this very letter, and the" Complainant not arriving in consequence of it, before the 1st February, assignéd as the ground of his belief, why the complainant Was not at Ilhicci previous to the 25th January; In other Words, the complainant could not have been at Ithica tin the 27th December, because thé witness, a month afterwards,- urged him by letter to come. However this may strike other minds,I cannot consider it entitled to any weight, or proving any fact that discredits the answer.
The testimony of Phinehas Btnnet, juH; is óf the samé character ás thé last. He testifies truly to what he knows,but the fact, Wiihin his knowledge, is of little consequence. He is confident the complainant was not in Ithica between November and February—Why ? Because thé Complainant made his home at the house of the witness’ father, Whenever he came to that neighbourhood; and if he’ had been in Ithica during that period, the witness wpuld have known the fact. This is the substance of his answer *749m the defendant’s cross interrogatory. He does not recollect, or know that the complainant was in Ithica. I should consider it a waste of time in attempting to show the irrelevancy.
C; Sprague’s evidence for the respondent. Where tllere is no circumstance to make a strong impression, little reliance can he placed on,, a witness8 recollection of particular dates, several years before he testifies.Charles Sprague, says he is confident the complainant was not in Ithica, but was living in the family of the witness at Chenango. He is induced so to believe, because he assisted in removing the complainant three weeks before the birth of his child, which was on the 5th December, 1816, and afterwards set out for Ithica, in company with the complainant, on the 31 st Janúary, 1817 ; that he does not recollect, or believe that he was absent from the county of Broome, at any time after he came to reside in the witness’ family, until the 31 si January. The first suggestion that occurs to me is, that this witness is speaking of occurrences that took place between 3 and 4 years previous to his examination. There does not appear td be any reason given for the witness’ belief that the complainant was not at any time within the space of two months absent from the county of Broome, excepting that he resided in the family of the witness. It would be going very far to say that any thing like certainty could be inferred from belief founded on this fact. I admit, it may probably be correct, but nothing more.
The fallibility of memory alone, in relation to past transactions, in which a witness has no interest or concern, and where there is no circumstance to make a strong impression, abundantly proves what little reliance can be placed on the recollection of particular dates. I apprehend the case becomes materially weakened, when a witness undertakes to extend his belief to so considerable a period as the present» It will not, I presume, be seriously urged, that because the complainant removed from Ithica in November, and went in company with the witness to that place on the 31 si January, that, therefore, he could not have been in Ithica at some intermediate time, without the knowledge of the witness. It would require a mass of .testimony of this description to overbalance a fact proved affirmatively by one credible wit*750ness, and with respect to which there could not well be ufiintetitional mistake.
A seeming-conflict of evidence should be scrutinized strictly, to see if it is susceptible of explanation, or incapable of being reconciled. ■ It it is intrinsically of a negative character, it does not necessarily destroy what is testified affirmatively. And if .one fact is not wholly inconsistent with another,it may well be considered that each witness has spoken truly. P. Brown's evidence for the respondent. A <5. Bonnet's Respondent/”Where there is a seeming conflict of evidence, it is the du-; ty of the Court to scrutinize it strictly, to ascertain whether it is susceptible of explanation, or incapable of being reconciled. When the testimony is intrinsically of a negative character, it does not necessarily destroy what is testified affirmatively. The question always is, whether one fact is wholly inconsistent with the other; and if not, it may well be considered, that each withess has spoken truly. Had the witness in the present casé given some more satisfactory reasons' for the confident opinion and belief he has expressed, it would, at least, have been advisable to have gone a step farther than the singlé fact, that the complainant resided in the witness’ family. The correctness of the witness’ opinion would have been more apparent, had he proved that he also had been continually at his own resídéncé, during the period enquired of, and therefore possessed the meáns of knowing that the appellant had riot been absent from his house a sufficient time, between November, 1812, and 27 th January, 1817, to admit of his going and returning from Ithica.to Chenango.
The next witness is Pilis Brown, who givés his opinion' that the complainant was not at Ithica. He is induced so to¡ believe, because, on the' 23c? January, he transacted business at Chenango with the complainant, who afterwards arrived at Ithica on the 25í/¿ of the same month. All this I have no doubt is true ; but how it is opposed td, or discredits any thing asserted by the appellant, I have not been able to discover.
Silas C. Bertnet, a son of the complainant, aged 19 years,, sPea^s positively, that the complainant was not at Ithica in December, 1816; that the witness resided with the complainant, and that neither the witness' no'r the complainant was absent from the town of Chenango. This testimony is positive and contradicts the answer. It cannot, however,, escape observation, that the witness is speaking of a fact of such a nature, that mistakes may easily exist and be accounted for in a manner consistent with the utmost good faith.' *751No circumstance is stated from which we can infer he noticed the time his father remained at home, or why this fact seemingly unimportant at the time, was impressed on his memory. If there were none, is there not just cause to suspect mistake ? Is not the frailty ofmemory such as to transient events long since past, that the most positive evidence as to dates ought to be considered as liable to some uncertainty ? Those who have attended to the subject in our Courts of justice would, I think, answer this question in the affirmative.
Frrilty of-memory is suck as to transient events long since past, that the most positive evidence as to dates, ought to be considered liable to some uncertainty. 2 witnesses contradict the answer; The other 4 do not impeach, it.His Honor, the Chancellor, places great stress upon the testimony of Charles Bingham, as positive, direct and authentic, that the original articles were procured and retained and cancelled by the appellant, fraudulently, and that the respondent never consented to surrender them.
I will subsequently examine the charge of fraudulently cancelling. I am now considering the evidence on the question whether the respondent consented to rescind the articles ; and so far from saying any thing on that point, Bingham does not profess to have any knowledge. He says he never was authorized, by the complainant, to give up the paper to be cancelled; nor does hé know whether the same was given up by the complainant, to the defendant, for that purpose, or by any other person acting under his authority. The answer to all this is, that the appellant has no where asserted that the respondent authorized the witness to give up the paper to be cancelled. He states as a fact, that the articles were rescinded hy the consent of the appellant. Before the testimony of Bingham can be entitled to the character ascribed to it, it will be necessary to show that the complainant could not personally, by agreement with the appellant, as effectually rescind his contract, as if done through the medium of Bingham, the witness. He states one other fact: he did not see the complainant in Ithica during the period mentioned.
I have thus carefully examined the complainant’s proof. The result is, that Silas C. Bennet and Charles Sprague contradict the answer; but neither the testimony of the two JBennets, of Pitts Brown, nor of Bingham, impeach it, as to *752the question whether the complainant was in Ilkica at the time alleged.
Answer supported by 1$. Brown & J* M0 Avery. Answer supported by 2 witnesses j and not assailed successfully by more than t; therefore the respondent’s consent to abandon, &c. and rescind, &c» is proved by legal and competent testimony.The answer is supported Ly the testimony of Emery Brown, that he saw the complainant in Ithica on or about, the 25th December, 1816; and of John II. Avery, who says that, in the fall of 1816, he was applied to by the appellant to assist him in raising specie ; that soon afterwards he met the appellant and Phinehas Bennet in llhica, and at that time, or some period previous to "the mortgage sale, which was on the 11th Janua.y, 1817, he was informed by a person whom he then supposed, and now believes, was the complainant, that he had abandoned and removed from the property, and, from his inability to pay, had given up the property to his brother, Phinehas Bennet, and the appellant»
The answer, then, is supported by two witnesses, and not assailed successfully by a greater number. Consequently the fact is proved by legal and competent testimony, that the respondent abandoned and rescinded the agreement.
It may be further observed, that the fact of cancelling, alleged in the answer, is in perfect accordance with the declarations of the respondent, made at different times, and removes every thing like suspicion that this defence is fabricated for the purpose of fraudulently resisting a just claim. To John H. Avery, the respondent declared he had given up the property to his brother and the appellant; to Abner H. Howland he declared, shortly before his removal to Chenango, that he was determined to abandon the Fall Creek property, and would have nothing further to do with it. He did remove and remained silent a long time thereafter, until title was procured under Pellones mortgage, until extensive improvements had been made, computed at not less than $5000, and until bona fide sales had been made to different purcha? sers. These facts speak a language not to he mistaken. It cannot be matter of surprise, that after this the parties should have cancelled the agreement. It would have discovered; in the appellant great inattention to his interest, had it not been done. To decree a specific performance against such facts, would he opposed to the principles of equity, and sanction positive injustice.
C. Bingham* evidence.With respect to the manner in which the appellant obtained the papers from Bingham, I do not perceive how that can affect the decision of this cause; because the respondent,
having a copy of his contract, admitted to be correct, is entitled to the full benefit of it, equally as if the original had remained in Bingham'1 s hands. The subsequent arrangements With two of the Bennets did not impair the respondent’s rights.
Bingham testifies, that the appellant called on him in November or December, 1816, for the purpose of obtaining copies ; that the papers were delivered to the appellant, and afterwards returned as he supposéd ; that afterwards, ill 1817, the appellant and Phinehas Bennet called for the papers ; and he delivered them as he then thought.
Phinehas Bennet testifies, that he went with the appellant to Bingham’s office, the last of December, 1816, or the beginning of January, 18 i 7, to procure the papers ; that Bingham delivered á bundle to the appellant, but on examining, it was discovered, that none of them were signed or sealed : upon which, the appellant made further search for th'e quit claim or release, but whether the same was then discovered or obtained, he does not know ; but that on the Sdlh July, 1820, the appellant exhibited a paper, which, from the appearance of the seals and signatures, he recognized as the original agreement.
Bingham says, that on the 31st July, 182Ó, the appellant showed him the original agreement; that the seals had evidently been torn off, but not the signatures. From this rather obscure statement, it does not clearly appear whether the appellant took with him the originál agreement, when he called alone, or whether it was afterwards taken, when he called with Phinehas Bennet. I think it is to be inferred, that the appellant must have taken the original when he first called on Bingham, which was probably early in January, 1817, and before the mortgage sale; because it was nofr found when the appellant called with Bennet. He testified, that on examination, none of the papers had the appearance of originals. He went away under the impression that none had been found in consequence of the search, *754If this he so, it places the conduct of the appellant in si censurable point of light with respect to Bingham, the dePositary) the permission being to take a copy, and return the original. It was also trifling with Benñéi to go in search 0f a paper, already in his possession. Had any fraud been attempted, in consequence, of this seemingly improper conduct, I should concur with his Honour, the Chancellor, in turning every presumption, and every unexplained circumstance against him. But it may be enquired, what could have been the inducement for so disingenuous a: course ? It will be recollected, that at the time the appellant first called, if the view I have taken of this cause be correct, he was entitled not only to the possession of the paper, but also to cancel it, so far as the respondent was concerned. He had previously rescinded the contract. When Phinehas Bennet called with the appellant, it was after the new agreement of the 27 th December, 1816, was made, between the appellant and the two Bennels, by which the former contract was virtually rescinded, so far as they were concerned, provided the appellant bid off the Fall Creek property on Wells’ mortgage. This was done' on the 11 ih January, 1817, and thereby the condition became absolute. All this took place before the search spoken of by Bennet ; for Bingham swears it was in the year 1817, when they called on him, leaving scarce a doubt,, that it was after the sale of the mortgaged premises. Here,then, there was no necessity of resorting to artifice, or motive for concealing the first agreement. That there may be some misapprehension, on this immaterial point ,Ilhink highly probable, but deem it unnecessary to pursue the inquiry further.
At any rate, tlíe decree should he modified, so respondent*116 account for iemrars judg■ment, Sec.If the respondent could surmount the preceding, difficul¡¿eg wbich lie in the way of his recovery, the decree ought . ' . . . . , , to be modified in one particular only. It will be seen, that-the judgment of David Lamber son against Benjamin Pelton, was docketed the 8ih December, 1807, prior in point of time to the judgment of Walter Wood, or the mortgage of Wells. The Chancellor directs the Master to report the value of the undivided fourth part on the 1st December, *755Í 816, exclusive of subsequent improvements, without malting any deduction on account of this incumbrance. I •think the equal fourth part of that judgment, with interest and costs, ought to be deducted from the amount of the Master’s report, and secured in such manner as the Chancellor may direct, to be applied in discharge of one fourth of the amount, finally ascertained to be due on the judgment. The respondent is not entitled to relief, unless the appellant’s purchase, under the execution, vested a valid title. He appears to be in no way connected with the subsequent measures to obtain a title under the mortgage, and declined making any advances to discharge it. This step must be considered as the prudential-act of the appellant to strengthen a title, considered by him questionable. If it turns out, that no such expedient was necessary, but that the title was perfect without it, the respondent is not liable to contribute to the loss. On this principle, it seems to me the question of laches does not arise. The respondent will receive no more than the value at the time his deed was to be given. He does not avail himself of subsequent improvements. His omission to assert his right for several years, could have no influence on the appellant, ■
When an i^sue is proper to assess dama» ges"But it has been contended, that if the respondent is en- ' 1 titled to relief, an issue ought to have been awarded, to ascertain the amount of damages. It seems to be well settled that the Court of Chancery will not, except under very particular circumstances, if the party be not entitled to a specifick performance, direct an issue of quantum damnificatus, or a reference to a Master to ascertain the damages.
If a party elect that remedy, he must resort to law ; but where the defendant has put it out of his power to perform the contract, the bill will be retained, and it will be referred to a Master to assess the damages. This was decided in Denton v. Stuart, before Lord Kenyon, Master of the Rolls, sitting for the Chancellor. (1 Fonb, 38, n. y. and 165, b.) The general rule is otherwise. Mr. Fonblanque observes, “ I am aware of no other case, in which such an order has been made, the usual decree being, either a specific!? performance, or an issue of quantum damnficatusd* *756Lord Eldon, in speaking of the case of. Denton v. Stuart^ says, “ that case, if not supported, on that distinction, is not; according to the principles of .the Court. (17 Ves. 276. 1 Mad. 350. 1.2 Ves. 395.)
Reference was proper.I incline to think, that the reference in this case was proper to ascertain the quantum of damages, theappellant not having it in his power to convey the one fourth. The result of my opinion is, however, that the execution being void when it issued, the appellant’s purchase at the Sheriff’s sale vested, no title; and secondly, whether void or not, the agreement to convey was rescinded and cancelled, by the consent of the respondent, and therefore, on either of. those grounds, the complainant’s bill ought to have been dismissed ; and, consequently, the decree of the Court below should be reversed.
This being the unanimous opinion of. the Court, it was thereupon ordered, adjudged and decreed, that the decree of his Honor, the Chancellor, be reversed, ‘and that the hill of the respondent be dismissed with the costs in the Court of. Chancery ; and that each party pay his own costs on this appeal.
jpND OF APRIL SESS1ÓKT,
The decision of this casé, in the Court below, is reported, (1 Johh. Ch- Rep. 62) and was afterwards reversed in the Court of Errors, upon the point taken and discussed by the Chancellor, at p. 87 to 94, and p. §1 to 93, note (a.) The decision by the Court of Errors was not reported ; but the following extract from Mr. Emmel’s argument, who was of counsel for the appellants, will shew the limitations within which the doctrine was contended for on that occasion. Notes of this argument were preserved, and furnished to me, by a gentleman of the bar, who was present at the hearing.
“ A preliminary question is made, as to the force of the answer. We tontead that where it is a direct and proper reply to the interrogatories of the bill, it is, 'prima facie, evidence for the defendant, if in his favour ; and our adversaries' contend that, where the answer affirms a matter in avoidance, the defendant must prove his affirmation. So far as the two positions are not in collision, we admit the truth of theirs, and it would be universally true if qualified by ours : that the defendant must prove his affirmation, unless it be a direct and proper reply to an interrogation of tbfe complainant. When that is the case, the moral rule of evidence does not apply. The complainant could not have been compelled to assume the" proof of the negative, but he has voluntarily undertaken to do so. He ¿as, of choice, assumed the onus. In order to prove that negative, he has voluntarily appealed, for evidence, to the defendant’s oath, and having done 66, he must let the evidence which he has thus elicited be taken into consideration, in the general mass of testimony. This demand-, on our side, is supposed to arise from confounding the course of the Court of Chancery, and from not adverting to the difference between pleadings atid evidence. Whether that distinction be properly applied by Mr Evans to the observations of Peake, (Vid. 2 Evan's Poth. 156-8, considered in 2 John. Ch. Rep. 90,91) will be presently seen. But, for the present, let us examine whether an answer is to be considered, in Chancery, in all its parts, as mer'd *745pleading. It is perfectly settled, that when it explicitly denies any matter necessary to the complainant's equity, no decree can be had against the denial, unless on the oaths of two witnesses, or of one confirmed by strong circumstances. Is that privilege the mere fruit of pleading, or what a de. fendant would have if he pleaded the general issue, or traversed any particular averment in a plaintiff’s declaration ? Why has tlie defendant that privilege in Chancery ? Because his answer, when responsive to the bill, is a piece o . evidence even in his favour, and a decree shall not be had against him, unless the complainant make out his case by a preponderance of evidence. It is not true that either a bill or answer are, of necessity, mere pleadings. A bill is certainly, in part, a pleading ; and it is, or at the election of the pleader may be, an examination of a witness by interrogatories. The answer is a mere pleading, so far as it sets up new and distinct matter of avoidance to defeat the plaintiff’s equity It is pleading coupled with evidence, when it denies the complainant’s statement, oq which his equity is founded. It is mere evidence in every other respect. The complainant, in the formation of liis bjll, has his election to make as much or as little use of the defendant, as a witness, as he pleases, except that by the course of the Court he must receive the direct denial of his allegations by the defendant, as evidence as well as pleading. Nor is there any hardship in this. If he has sufficient and convincing proof, he may overcome the defendant’s evidence in his own behalf. If he has not, no Court can give him relief. But whatever maybe thought of this part of the rule, its existence is incontrovertible. There is, however, move justice in giving to the defendant the benefit of those parts of the answer Which are mere evidence, because the extent to which they can go must entirely depend on the complainant’s election. Such responsive affirmations, on the part of the defendant, can only arise out of the charging part o( the hill, which sets forth .what are supposed to be the defendant’s pretences, or from the breadth of the interrogatories. Neither of these are ne= pessary parts of a bill. Formerly the bill contained very little more than the stating part, with a simple prayer that the defendant might answer the matters contained in it, and then came the prayer for relie'. (2 Mad. Ch. 136-7.) It is manifest that, in a bill thus framed, a complainant can encounter no difficulty from the defendant’s oath, but a denial of his equity. The other parts are voluntary, and only calculated to elicit evidence. They are, therefore, often dangerous, and perhaps imprudently used. As to the pretences, or charging part, it is mentioned that F.P.rdt Kenyon never inserted this part in any of the bills which he drew when at the bar. (Partrige v. Haycraft, 11 Ves. 574-5. 2 Mad. Ch. 137.) The interrogatories, *746Which are merely-calculated, to get the defendant’s evidence, may undoubtedly be restricted by the pleader’s prudence. Where the complainant, has such entire control, as to the extent of the defendant’s answer, with What truth can it be said, that tp. ajlow his answer, where it states an affirmative fact, precisely in reply to the complainant’s bill, to be, prima facie, evidence, “ would render it absolutely dangerous to employ the jurisdiction of the. Co.urt of Chancery, inasmuch as it would enable a defendant to defeat the complainant’s just demands, by the testimony of his owrx oath, setting up a dsscharge or matter pf avoidance ?” (Words of the Chancellor, in this cause, 2 John. Ch. Rep. 90.)
The cases put by the opposite counsel are only- fancied dangers, or such as are necessarily inpiden.t to the co.uvse .of evidence. They suppose the complainant without any evidence to support his case at law; and then, pomplain of the monstrousness of letting the defendant swear away the. complainant’s just rights. What remedy is there for this, wheré not a step, can he taken without the defendant’s oath i The same objection may be made against all testimony, on oath, which certainly opens a door to perjury. But in the eases stated by the opposite counsel, the utmost their rule, would do, would be to make an unconspientious defendant shift the bearing of his false oath, and deny' the receipt of the goods or money, instead of averring payment. ' The privilege pf denying, equally holds out an inducement to perjury. Ip those pases, it is the choice o.r ignorance of the complainant’s pleader only, that can afford the defendant such an opportunity. If he does not choose to appeal to the defendant’s oath, he may shape his. bill for effectual relief, without enabling him to make any affirmative averment, which wpuld be evidence. But he must always take the risque of denials. He may State his pase,.and pray that the defendant be decreed to come to a fair account with him ; and then every thing will he transacted by charge and discharge, and psoofs before the. Master. A doctrine contrary to whpt we contend for, would stretch the defendant’s conscience on a moral rack, pnd receive nothing for proof, but confessions of guilt.
The limitation that the defendant can only discharge himself by oath, of sums under 40 shillings, is urged against us, as being an exception which proves the complainant’s rule. But that is a defendant’s privilege, which, he may insist upon in support pf a new matter of avoidance set up by himself,, without being responsive to. .the complainant’s bill. So also is the. rule as to menial servants. (Potts v. Potts, 1 Kern. 208.) There the. answer is available and conclusive, though not responsive to the bill j and ^either are exceptions which prove the complainant’s rule>
*747The cases cited by the Chancellor, and the controversy alluded to between Peake and Evans, (see 2 John. Ch. Rep. 90,91,) are all beside this question, and treat on an entirely different position. They allude to a rulé contended for in analogy to courts of law, (where it is certainly established) that the answer being an entire instrument, if the plaintiff read any part of it in evidence, his doing so, will entitle the defendant to read the whole, and that without any regard to the point whether the matters read are, or are not responsive to the bill. The propriety of this is manifestly the subject of discussion between Peake and Evans. The distinction between the two courts is too firmly settled to be disputed, though many may question its propriety ; but the proposition is entirely different from ours;”
Here the counsel examined the authorities cited by the Chancellor, (2 John. Ch. Rep. 87 to 91, and in note (a) at the last page.) And in addition to those cited by Mr. Justice Woodworth , in the principal case, he cited Maupin v. Whiling, (1 Call, 224-226,) and Snellgrove v. Baily, (3 Atk. 214.)