Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-10-13
SUPREME COURT OPT IONS,
September Term Knoxville,
1870.
Joseph Id. HeiskeI, Attorney Gen.
eral and Reporter.
George W, Smith, Plaintiff in error vs.. T
large and II Iohnsnn

| Joseph h. HetskelI, Attorney Gen.
| eral and Reporter.
L Is rT
George W, Smith, Plaintiff in error VS.. T. W
Large and H. Johnson y
The plaintiffs in q suit offered parol ptoot
that they had executed to the defendant Is
agent OF the Confederate States, a bond binding
tnem 20 let tns southern OOnfederacy have q
per cent. OF the leather they manufactured
without evidence to show that the bond was
lost or notice 20 produce 1t. The court admit
ted the evidence to prove 'the existence and
design" Of the bond mot its contcnts.n This
was error. The design must be proved by it,
contents. -
The fact that a paperrelates to the bushes.
OF an extinct political organization, is not q
ground on which secondary evidence Is adm it.
dence. ~
When part of conversation is admitted in
/ evidence, 1t is error TO exclude another part
20 which the part admitted is reply, and With
out which the part admitted is hardly intelli.
g1bie, though the part so excluded might of it.
self be irrelevant to the issue.
No presumption of continuing duress under
/ the circumstances of the case.
| In q case coming by appeal from 9
Justice of the Peace, it is error to allow
an amendment changing the form of &C.
ton from 'debt on account" to "trespass, "
after the court has commenced charging
the jury. Code, sec. 1859 construed.
From Campbell county, Hon. L. G..
Houk presiding.
L. A. Gratz for plaintiff in error.
Baxter, Champion s. Gibson for defend
ant
OPINION.
This was an action of !'debt due by
account" as originally instituted and
prosecuted before Justice of the Peace
of Campbell county. Judgment was rem
dered against plaintiff, in error, and he
appealed to the Circuit Court.
In that court, a judgment was also rem
dered against the plaintiff, in error, and
the court refusing to grant new trial, an
appeal, in the nature of writ of error,
was taken to this court.
The purpose of the action seems to
have been TO recover the value of q Ger
tain quantity of leather, for the delivery
of which the defendants in error in 1863,
had eqecuted their bond in 1868,
be being at that time an agent for the
Confederate States.
Several errors are complained of by the
plaintiff in error: . rs-s -+
l. 1t is insisted by him that the court
erred in admitting parol proof of the
contents of the bond executed for the de-
livery of the leather. The witness,
Chapman, was allowed to state that ''the
bond was that Large and johnson should
let the southern Confederacy have sixty
per cent of the leather they manufacture
ed. " and this testimony, although OBJ
jected to when offered, the bill of excep-
tions states was admitted by the court,
mot to prove contents of the bond, but
its existence and design, for which it was
executed and gIyen.n s.
1t is difficult to conceive how you can
ascertain the design without proof of its
contents, of which the bond itself is the
highest and best evidence.
To lay the foundation for the introduce
ton of secondary evidence or parol proof,
of the contents of writing, there must be
some proof that the instrument is lost, or,
if it was known to have last been in the
hands of the adverse party, notice to
him, or to his attorney, to produce it
must be given.
While there are some exceptions 70 this
rule, we do not think that the fact that
the bond was executed to the plaintiff in
error, as an officer in an extinct organiza-
ton, places 1t in the list of excepted cases.
The plaintiff in error offered to prove
that the defendant in error Narge) had a
conversation with one John Jones, in
which Jones had stated to Large that, IN
der decision of our Supreme Court, one
Frank Kinkaid could make him Oarge)
pay again for carriage he had bought
of Kinkaid, and paid for in Confederate
money, during the war, to which Large
replied, eff that is the way, I'll make
Smith pay over again for that leather,
etc" Upon objection being made by
the plaintiffs below, this testimony, as to
the carriage trade, was all excluded by
the court.
We think what Jones said TO Large
should have been allowed to go to the jury,
in order to enable them better to under
stand the reply of Large And, in this
case, it would be difficult to understand
the purport of Large's reply, if the re-
marks of Jones, which elected it, were
excluded. We think, therefore, that the
Circuit Judge erred in saying to the jury,
that they could not look for any purpose
to anything said about the carriage trade.
The court charged the jury that if they
believed the plaintiffs (below) acted I'M
der duress or cOnstraint in executing the
bond, that that duTess would be presumed
to have continued, in the absence of any
proof to the contrary, and that the pre-
sumption would be that the leather was
delivered under the original and still con-
tinuing coercion.
While we are satisfied, that in this case,
there is no proof in the record Of any
coercion to execute the bond, amounting
to legal duress, we do not think that if
duress had been shown in the execution
of the bond, that the law would raise any
presumption of It's continuance, in the
absence of any proof that there was any
further communication between the par
ties after the execution of the bond.
While the court was charging the Jury,
as we infer from, the record, the plaintiffs
below were permitted to amend their
warrant, changing the form of action
from ''debt on account" TO ''trespass," TO
which defendant excepted.
The very liberal provisions contained
in the Code for amendment of writs,
| pleadings and other proceedings in causes,
are designed to promote the ends of JUS
tice, not to operate prejudicially to par
ties, and section 1859, amongst other
amendments which it authorizes, provides
that the court shall have power ''tC
change the form of action" etc., "upor
such terms as to continuances as the cour
in its sound discretion may see proper tC
impose"
This language strongly implies that tht
change of the form of action will only b.
allowed before trial is commenced, anC
such we think is a reasonable and proper
construction of our statutes of amend
| ments.
From the principles laid down in this
opinion it follows that the judgment il
the Circuit Court in this case must be re-
versed. DEADERICK.
A true copy.
7 L TtIily TnY,r4