This cause is brought up by writ of error, to a decree of a chancellor dissolving an injunction and dismissing a bill, filed by the plaintiff in error against the defendants, who were ad-*369Ininistrators of one Benjamin H. Hall. It appears that a written contract was executed between the said Hall, in his < life time, and the firm of Dameron and Williams, undertak - ers and builders in the city of Mobile,- and the plaintiff as their security ; by which contract it was stipulated, that the said Dameron and Williams should erect certain store houses in the said city for the said Hall, to be completed by the first of November, 1821, for which the said Hall obliged himself to pay to the said Dameron and Williams the sum of three thousand eight hundred and fifty dollars, on or before the said first of November, 1821, provided the said houses should then be ready for delivery; and provided further, that if not finished by the said time, the payment of said sum of money should be suspended until they were completed; and the said Hall should be compensated by, the said Dameron and Williams, or their said security, the plaintiif, such reasonable damages as the said Hall might sustain by reason of the non- ' completion of said buildings, according to the-contract. Upon this contract Hall instituted an action at law against the’ plaintiif, and recovered as damages accruing to him for the non-completion of the houses, the sum of one thousand and seven dollars, to enjoin which the bill of the plaintiff was filed.
The bill charges, that before the signing by him of the contract above mentioned, it' was understood and agreed between the said Hall and the said Dameron and Williams and the said plaintiif, that in case the said Dameron and Williams should be unable to build and finish said stores, according to the agreement, that then, and in that case, he should complete and finish said stores himself, and the said Hall should pay unto him the said sum of three thousand eight hundred and jifty dollars, after deducting therefrom such damages as the said Hall might sustain, in case the said build* , ings should not be completed by the said first of November, 1821. The bill further,charges, that the said Dameron and Williams failing to complete the said buildings, assigned the* *370Written contract to the complainant, who proceeded at his owtr í costs and charges to complete the same, and delivered them - up to the defendants’ intestate in April, 1822. That the said Hall refusing to pay him the sum agreed- to be paid as aforesaid, he commenced an action at common law against him, upon the written agreement and upon the verbal contract, to which said action, after the death of Hall, the defendants were made parties.; and that during its pendency, viz : at the September term, 1828, the case was referred to arbitrators, and continued on reference from term to term, until at last it was abated upon the declaration of the insolvency of the estate' of their intestate by the said defendants. The answer of the defendants denies the fact of any such verbal contract made with their intestate. They allege that Dameron and Williams were greatly embarrassed, if not wholly insolvent, when the contract was made with them by their intestate, and that they were largely indebted to him, which was the main inducement to make the said contract, in order' to save this debt. They admit that the plaintiff procured an assignment of the written contract from Dameron and Williams, and also, that suit was commenced on the same, which was terminated in the manner as stated in the complainant’s bill. They assert that letters of administration were committed to them on the thirteenth of September, 1824, and that the claim of the plaintiff was never duly presented ; and insist as a defence, on the statute of non-claim. The proof takSn is only the depositions of three witnesses, all of which were read on the trial in the court below, without any objection being made, either to the mode of taking them, or to the competency of the witnesses, and of course the case will now be considered on the testimony in the record, There is abundance of testimony that Dameron and Williams, after putting up. the frames of the buildings, failed in their circumstances, and surrendered the work with the written contract to Gar-row, who completed it'as above stated. That the value of the work done by Dameron and Williams, before they aban*371doned it, was something like eight hundred dollars, being two hundred dollars less than the damages recovered from Gar-row as their security, by the intestate. There is one positive witness who sustains the allegation, respecting the parol agreement, which is relied on by the complainant. There are some other facts proved in the cause, which have been dwelt upon in the argument, but which to my mind, furnish very little ground for presumption, either on, one side or the other — such as the insolvency of Dameron and Williams, and the indebtedness to the intestate Hall. They might have furnished a motive to him, for entering into the written contract'; so, on the other hand, those very circumstances, if known to Gar row, might have been powerful .reasons with him, why he would not have incurred such a hazardous responsibility as his becoming security imposed, without at the same time, the counter indemnity, which the agreement he relies upon, afforded. So, Hall’s declarations that he was ready to pay whenever the buildings were done, and that it was immaterial to him to whom he paid ; though they were Well calculated to inspire the complainant with ardour in the prosecution of the work, may have been artfully intended for that purpose only ; and however deceptive, furnish no very strong corroboration of the statements in the bill.
Having thus stated the substance of the bill, answer, and proofs, so far as I consider necessary to a decision of the case, I will proceed to examine the questions belonging to it.
The first which presents itself is, whether the contract set up by the complainant, even if proved, can be regarded, on account of its supposed effect, to vary or contradict'the written instrument, which was signed by the parties to it. The general rule is well established, that a written contract cannot be varied, contradicted, or even explained by'parol evidence. But if any contemporaneous contract be made, even in some sense on the same subject matter, which can be so separated from the written one, as that it will not appear to have been *372intended to form a constituent part of it, and does not alter, contradict, or explain it, however it may depend upon it for its very existence, I can see no good reason, why such parol contract should not be upheld. Their mere juxtaposition, is surely no fatal objection. Let us then examine these two contracts, and see if that set up by this bill must be annihilated by the force of the admitted rule, in the written contract Hall obligated himself to pay to Dameron and Williams, a certain sum of money, for certain work to be done by them, against a certain day ; and requires the plaintiff to be security for any damages which he may sustain by a delay in the completion of the. work beyond that day ; he suspending payment until its completion. Now, before Garrow, the com-’ plainant, would become a party as such security to the proposed contract, thus written, he exacts of the parties, what he might well have deemed essential to his safety, the parol agreement, viz : that Dameron an'd Williams should allow him, in case of their failure, to comply with the proposed written contract, to proceed and execute it; and receive the compensation which was to be paid to them ; and that Hall should promise to pay him in the event of his doing the work, the money which by the writing he had bound himself to pay to the said Dameron and Williams? Dissect this parol contract, and view it in the light in which the testimony presents it, and it is nothing more than a contract of future assignment made'by Dameron and Williams to the complainant, in consideration of his incurring the liability of surety for them, which however, would have béen wholly illusory, unless .assented to by Hall. Now, Hall or his representatives should not be permitted to defeat this counter indemnity. The rule of law thus applied, would, as it strikes my mind, make a victim of the innocent security. To sustain an agreement in parol, to assign this contract, by Dameron and Willialns, made before its execution by the signature of' the parties, which agreement had been induced and occasioned by the assent and. concurrence of Hall, would, it seems to me, be hq *373more a violation of the rale, than to sustain "such a one made • . after its execution. Yet it is conceded, that if any man m-duce another to take any security upon him, by a promise of payment, he cannot avoid it, even if it be forgery, much less can he defeat an honest assignment for a meritorious consideration, which he has encouraged and occasioned for his own benefit. I do not think the contract here relied upon, ‘
The next question to be considered is, whether the proof sufficiently establishes this parol contract. I have already said that there is but one positive witness to sustain it; and I have said also, that no great stress can be laid upon the circumstantial evidence adduced. The general rule which has been invoked upon this occasion, that there must be two positive witnesses, or one, and strong corroborating circumstances, I'do not think applies to this case. The rule is not inexorable, but yields to such reasonable considerations as show the impropriety of its application. It is founded on the equitable principle, that evidence should be weighed, and the preponderance given not to number merely, but to the greatest weight of the testimony. The answer of a defendant, who is made a competent witness by the complainant, is equal to another competent witness ; and without more, the cause is in equilibrio, and the maxim applies, melior est conditio de-fendentis. It will therefore require another, or what is equivalent thereto, a powerful array of coadjuvant circumstances to turn the balance. Suppose, however, that from the situation which a defendant in chancery has occupied in relation to the matter in controversy, he is not only not alleged to know, but evidently can know nothing certainly of the matter, which he. nevertheless formally denies. Is it not reasonable that the answer of such a one, should be less weighty in the balances of justice, than the positive asseverations of a disin terested witness ? I conceive so on principle, and believe the ’ authorities will sustain the position. The case of an executor or administrator defendant, is considered as an exception *374to the general rule, in 9 Cranch 160, and 4 Bibb, 358. Upon another view, proper to this case, I feel also satisfied that the , rule is inapplicable. The bill is also sworn to, here, as well as the answer; it is oath against oath; and in such case, one witness is sufficient. I consider the parol contractas proved.
The question of jurisdiction was raised in argument, and deserves to be considered. I understood the objection to be founded upon the supposition that there was an ample opportunity for the complainant to have obtained the benefit of his demand as now sought, by pleading a set off to the action brought against him by the defendant’s intestate, Hall; judgment on which he now seeks to render fruitless by' his bill. It has been often decided that a party is not compellable to plead what is strictly a set oft’ and not a payment, in’, any case. It is optional with him to do so r not. In this case a separate action was resorted to by the complainant, which the defendants admit was abated at their instance, owing to the insolvency of their intestate’s estate. The only remedy which remained to the complainant was before the commissioners appointed to allow the demands against the insolvent estate: but this remedy was clearly inadequate. Immediately on the declaration of insolvency, it became essential to the interest of the complainant, that he should be allowed to setoff against the judgment against him, an equal amount of the debt due'from the intestate to him. This court has decided in the case of Penine, and Warren1 s adm’rs., July term, 1830, that in such case a set off is allowable. Then the jurisdiction is entertained properly, as it is the only way of affording the relief to. which the party is evidently entitled. The only adequate remedy is by injunction to the extent of the complainant’s demand, and further relief we do not think it competent to supply; as to the balance of his demand he is remitted to such remedy as the law may afford him. The relief to the extent just intimated is clearly allowable, unless the plea of the statute of non-claim, or forfeiture for failing So present it to the administrators* within eighteen months af*375ter lettersgranted, whicS) is pleaded in this case, can be maintained. Let us see how this matter of the plea stands as pre-seated to us by the bill, answer and proofs. It is averred the bill, as if in anticipation of the bar, that an action was brought to inforce this very demand against the intestate in bis life time; that after his death the defendants were made parties thereto, and that after a consent order of reference to arbitrators, and continuances for several terms for their report, it was finally abated by the defendant’s producing a certified copy of an order of the Montgomery County Court, declaring the estate of the said intestate to be insolvent_ The answer admits the institution of the suit, and that it was terminated as stated in the bill; but alleges that the claim was not duly presented, and insists on the statute of non-claim. Now, if the answer does not virtually amount to an admission of the course of said cause as averred in the bill; that is, that the defendants were made parties, and consented to the reference, &c.. which I am inclined to think it was intended to do ; yet I consider such to be the effect of the answer by force of the principle of equity that facts which are charged in the bill, and are evidently in the knowledge of the defendant, and not denied, are to be taken as admitted.a So far then, as the plea questions the sufficiency of these facts, to constitute a presentment of the claim, I would not consume a moment upon it, but that a decision of this court is brought to our view, which is contended tobe conclusive in support of it. The case referred to, is reported in 2 Stew. 447. The only view of that case which can reconcile it to my mind, is that a non-suit was taken on the writ served upon the party defendant, from which it might be inferred that the claim was abandoned ; for it is said in the opinion delivered that a copy of the bond or note, or an abstract will suffice ; and if a copy of the writ is not a compliance with the statute, at least the declaration will supply it. Not to overrule that case, I feel bound to limit it at all events to this principle — that a writ served on an executor or administrator *376on which a non-suit is taken, before a declaration is filed, will not constitute notice within the statute ; and I think this is ■ doing great homage to the maxim, stare decisis. There is then an averment in the bill, which taken in connection with the admissions in the answer, amounts to what constitutes a due presentation of the demand, so far as its manner is concerned : and if the plea is understood to question its validity for want of its being made within the time required by the act, then there is no evidence in the cause by which it is made to appear, that the forfeiture had been incurred by the lapse of eighteen months, prior to such presentment or notice. The letters of administration are not produced, nor the time of their issuance established by any proof in the| case. Now, whose duty was it to prove this fact ? If it be a fact necessary only to maintain the plea, by the rules of pleading applicable to the case, I think it is thrown upon the defendant. In general, a party claiming a forfeiture, is bound to make out his case precisely; nor is it a necessary exception that it involves the proof of a negative allegation.a
From the best consideration which we have been able to give the cause, our conclusion is, that the decree below is erroneous, and should thereforé be reversed — that a decree be entered restoring and perpetuating the injunction, and that complainant recover his costs, &c.
3 Bibb, 466, 539, 143.
Gallis. 498.