Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-07-03


the. same issue which issue was this, the de-
iendauts said that sum of money, viz !:
S1so0,251 SO and more, came To the
hands of John Preston as treasurer between
rhe 9th January 1919, and the 18th January
1920, the period for which they were bound /;
and that he did faithfully account for all the
said monies which came to his hands in virtue
of his Office during the term thereof. The
plaintiff on the other Hand AYERS, that n sum
larger than S 1,200,251 SO came 10 the hands
Of the said Preston in virtue of his office be-
tween the said 18th January 1919 and 18th
january $40 and that he did not account for,
OK pay the aforesaid sums of money, &c. but
the same did divert, misapply, and convert to
his own use and 50 had volated the condition
OF rhe bond.
BY these pcadings two facts were present
cd for the decision of the jury. lst, whether
between the 18th january 1919 aud 18th Janu-
airy 1890, more money than S 1 ,200,251 SO
did come To the hands of the said Preston i'll
virtue Of his Office; aud cd, whether the sums
actually so received, were faithfully accounted
for
The plaintiff to support the issues on his
part, offered in evidence, the books of ac-
count OF the treasury department, which were
proper evidence, and were not objected to.
From these books it appeared among other
things, that there had been paid into the treas
,.ry before and during the year 1919, and up
TO the 9TH Jan. $40, the sum of j33,297 z
more than had been disburscd for the public
service which money ought to have been in
the public Golfers, and the fair presumption
from the face of the books was, that it was
there. But upon count, it was found that
s 83,099 80 fthe money was not t0 be found.
When did this eloisnmeut take place new
became the important question between the
parties Ii it was eloiSned before the 18th
January 1919, il was not within the condition
of the bond OH which the motion was made
and the verdict should have been for the de
PENDANTS on the issues made Up. Fit was al
ter that day, the plaintiff was entitled to 4
verdict.
The plaintiff rested his case on The treasury
books alone, and insisted, that MS they Showed
this money had been received, and did not
show that ii had been disbursed for the conf
monw aaith, it must be taken to have been in
the treasury on the day Of the date of the said
bond, and OF necessity, 10 have come 10 John
PresiCnsha in virtue ofhis said Office, after
that date, to the exclusion OF all evidence to
tie contrary. The defendants on their part
introduced evidence cIlcuittel To satisfy the
juTy, itproper to BE- submitted to them) that
an fat shis eloigninent took place in the year
1913, aud before the date Of the defendants
bond, on which the motion was made Which
WIS the very fact in issue before the jury. And
this evidence being submitted to the Jury, did
satisfy them, that the eloignmcnt iii dispute
took place before the execution of the bond,
and they found a verdict for the defendants.
The counsel for the appellant had however
moved the court, To exclude this testimony on
behalf ofthe defendants from the Jury and
excepted to the opinion OF the court, ovcrru.-
ing has motion. The question now to be dccid-
ed IS, whether the testimony offered Icy the
defendants 0ug Int to have been heard by the
jury upon these issues | had supposed il
could not be questioned, if this had been pri-
yate transaction If Preston had been the fac
tor of foreign merchant, and had given bond
aud security every year, for faithfully dis
charging his duties, and such u case as the PIE
sent had arisen between the employer and
Preston and his surcties for different years
tiils is III effect contest between the suretcs,
70 Prestonstis iInmateri;ll OH what bond lac is
made responsibility that both Preston and his
s'ireties would be let in, to sheY by uyi-
dcnce, the trritt oftlie case. Ifthis he not the
case, not only ], hut every lawyer with whom
] have practised, or who has appeared before
me for thrty-seven years, has ldboured under
strange dell,sion. | am aware that the con-
iession of party may be given i'll evidence
against him, and is not evidence for him /; bal
when it is so given although It be strong, it is
lot SD conclusive, as TO prGstratc his rights
against the tr;:th OF the case but he is at IL
berry, 10 sbey by other testimony that he
made the statement under Il mistake, through
Misunderstanding OF inadyerteuce. ,ihe rules
oIlaB, and tile demands of Justice, ever search
ing for the real truth, absolutely require, that
such evidence should be heard. Eyen against
ihc principal you cannot recover for default
not within the condition of the bond much
more should this be the case, when there j.
another bond, to indemnify the obGgee against
tkat very default Is it more consistent wild
iaty and justice, that the obtor and his sure.
ties, should be niade liable upon bond which
does not covenant against tile act complained
of, when there is another bond which doe.
covenant against that act, in the case of.tht
treasurer, than it would be in any other /
i1is be SO, itmust be, because the law has or.
,dalnedib from principles of public policy ;anC
that IS tile ground taken. 1t is said, that tn,
defendants are concluded, that is estopped
from proving by any evidence other than these
books, that there is any mistake or error ii
them.
An estoppel Is that which prevents on,
rom showing the truth in defence of his rights
call 1t by what name we WILL il is that which
ShlI;sout The evidence of the actual truth O
me case. For this reason, estoppels have eve
been held to he repugnant to reason, ;s,if,
ojious inlaw" They are tolerated in a ver-
few cases, and only from absolute hecessty.-
Even in these cases, judges have for ages beer
ast'tte, to unshackel the estotiped; by ever,
means IN their power. ifthese books do worI
an estoppel, it's not by the operation of tn,
statute, for that does moi. rFetend to alter thei
nature as matter OF Evidence Neither is
ny the general principles of the common law
Whch holds cstdppels TO be Odious No cas-
has been adduced, to shew they4work an es
copper no dicton of any Judge, lawyer, o