v. and certified under statute. Yet even then, the copy could JANUARY 1891 not have been admitted without proof of loss, or notice to produce the original. In this case, the deed was not pro- Sommerville perly admitted to record. The clerk had no authority to Stephenson record it, unless all the requisites of the statute were com- & Johnston. plied with; and it does not so appear. But a copy is no evidence of a deed, unless the original is lost, destroyed, or beyond the control of the party offering it, even when the latter is recorded. If the original be in existence, it must be produced, or its absence accounted for. The plaintiffs were allowed to give parol evidence, to vary materially the contract. The liability is the same as if the indorsement was not under seal. The evidence of the contract was written, and a verbal agreement is set up, that indulgence should be given and a promise to pay. The written contract is therefore altered by parol testimony. It was a conditional contract only; its legal effect is that of an assignment, as much so as if it had been expressed. Yet this written contract was suffered to be altered by parol, which shewed that no presentment was to be made, until the end of delay given, and went to excuse demand for one or two years. Such evidence varied the written contract materially. The case of Wesson v. Carroll,a a Minor's Ala is the first decision of this Court upon this point; a second R. 251. is the case of Dupuy v. Gray. Between these cases and & Minor's Ala the one at bar, there is a decisive resemblance. The written contract would bind the other party, and therefore must bind the defendants in error.c WILLIAM B. MARTIN, for defendants in error. When fully examined, it will be seen that the judgment is corWe contend that the indorsement creates the legal rect. The seal liability of an assignment, and nothing more. The case of Dupuy v. Gray, does not reach this case. R. 357. on JANUARY 1831 This is a contract to give day, but does not contradict the assignment. Giving day is a good consideration. The Sommerville action is not brought against the plaintiff in error as a reguStephenson lar indorser. We go on the contract to give day, which & Johnston. has a good consideration to sustain it. A promise to pay, ▼. after negligence in making demand, is good, and will sustain an action by itself, and does not depend altogether on the indorsement. It is a new, independent contract. The legal liability is created by writing; but the action is on the subsequent promise. We have declared on the subsequent promise, and not on the law of indorsements. This does not contradict the written contract, it is a different contract. I do not wish makers pressed. The course of the plaintiff in error, looks like an intention to entrap, to confuse remedies. This action does justice to both parties, and there is no reason to reverse the cause. It was not necessary to produce the deed at all, and its production could have done no injury. The testimony might have been useful on the other side. Suppose it was necessary; the title to the land was not in dispute; any evidence to establish the fact of a contract in writing, is sufficient. Its existence only could have been necessary, to be shewn. To shew the existence of a written contract, a copy is sufficient; the highest grade of evidence need not be produced for this purpose; it is only a collateral fact. I do not admit the doctrine of notice to produce the deed. We are third persons as to the sale of the land. Deeds are recorded for the benefit of the public. Any other person than the owner of the deed, can use a copy, because the original is not within his power. HOPKINS, in reply. It is assumed in argument, that the verbal contract was not made until after the assignment of the bond, but the record will not sustain this view. It was made at the same time. The declaration shews how the land was to be paid for, and that the contract was executed according to its stipulation. The liability therefore, sought to be enforced in this action, was not on the contract of sale, but was on the contract of assignment. But if the verbal contract relied on, to give the obligor further time for payment, took place after the assignment, it was a promise to pay the debt of another, and as such, void under our statute of frauds. By JUDGE COLLIER. The bill of exceptions very ▼. naturally suggests for our consideration these questions: JANUARY 1881 1st. Is it competent to vary a contract in writing, by a verbal agreement, made at the time the contract is entered Sommerville into, and is such the effect of the testimony, with regard Stephenson to the indulgence of the obligor? 2nd. Is assumpsit the & Johnston. proper remedy against the assignor of a specialty on an indorsement under seal? 3d. Can the copy of a registered deed of conveyance, be read in evidence, without accounting for the original? 1st. Where parties have reduced their contract to writing, it is presumed that it contains every stipulation in regard to the subject matter of contract, in which their minds concurred; and hence neither party will be permitted to prove verbal reservations or conditions to have been made at the time it was entered into. In Dupuy v. Gray, the plaintiff in error was sued as the assignor a Minor's Ala. of a bond. On trial in the Court below, he offered to Rep. 357. prove a verbal agreement, made at the time of the assignment, that he was not to be liable until it should be ascertained by suit, that the money could not be collected of the obligor, which evidence was rejected by the Circuit Court, and this Court ruled, that such evidence went to vary and control the terms and legal effect of the contract in writing, and its rejection was proper. To the same point is Wesson v. Carroll.b b Ibid 251. In Free and another v. Hawkins, the indorsee brought c 8 Taunt. 92. an action against the indorser. The defence set up, was a want of notice of the dishonor of the note; whereupon the plaintiffs tendered as a waiver of such notice by the defendant, evidence that he knew and expected that payment of the note was not to be enforced, until after the estates of the maker were sold, and then only in the event of the proceeds of the estates not being sufficiently productive; and that whatever might be the course of law, such was the understanding when the note was given. The evidence was rejected at nisi prius. On a rule nisi, to set aside the nonsuit and have a new trial, the Court of Common Pleas held, that the evidence was properly rejected; and remarked, that if the parties mean to vary the legal operation of an instrument, they ought to express such variance; if they do not express it, the legal operation of the instrument remains. The effect of the evidence tendered, would be to vary the note and to control its legal operation. The case of Hoare v. Graham,d was referred d 3 Camp. 58. to by the Court, as analogous in principle, to the one be. JANUARY 1831fore them, and as deciding that that which is expressed in ✓ writing, and which is the best evidence of a contract, Sommerville should alone constitute the contract. In Hunt v. Adams,a Stephenson evidence was offered, to shew that at the time the note was & Johnston. signed by Adams as security, it was agreed between him 7 Mass. R. and the plaintiff's intestate, that he should not be called 518. v. 1249. 2 Bos. upon, until an attempt had first been made to obtain payment of Chaplin, the principal in the note. This evidence was held to have been rightfully rejected by the judge who tried the cause; and it was ruled, that parol evidence cannot be admitted, to alter the legal effect of a written simple contract. To the same effect are the cases 62 W. Black. of Preston v. Lerceau and Coker v. Grey.b In Stackand Pul. 565. pole v. Arnold, it is decided, that there is no difference e 11 Mass. R. with regard to the admissibility of explanatory or contradictory proofs, between simple contracts in writing and sealed instruments. 27. If these decisions are to be relied on as correctly ascertaining the law, it does not require the aid of further illustration to manifest, that the opinion of the Court below, by which oral evidence of an extension of the time of payment was admitted, is erroneous. And the question is so clearly determined by these authorities, that I do not feel authorized to dissent from them, the more especially as my researches furnish no opposing adjudication. Had the point been res integra, without any other light than principle to guide, I should have hesitated before I determined that oral evidence of a fact, concomitant with the indorsement, was not admissible, by way of excuse for a failure to give notice of the dishonor of a note. Though I have no objection to the principle of the rule which excludes such testimony, I believe its application to have been extended full as far, as the purposes of justice demand. But the question has been settled and I acquiesce, believing it is more important in most cases, to the security of rights, that the law should be fixed and certain, than that it should be correctly established. If it had appeared from the declaration that the agreement for indulgence was verbally made, advantage should have been claimed on demurrer, but it does not appear from the declaration, that the agreement was not in writing. 2d. The action of assumpsit is not maintainable upon writings under seal, where they are sued on as the foundation of the action, but in such case, the party must bring debt or covenant, according to the character of the writing. In order to determine what action is the appropriateJANUARY 1831 v. remedy upon the assignment, it is necessary to inquire into the nature of the obligation it imposes. The assignor Sommerville undertakes with the assignee, that if he will employ due Stephenson diligence to get the money of the maker and fail, then if & Johnston. he will give a reasonable notice of the failure, he will pay him. It is obvious that the assignment imposed no present duty upon the assignor, but is only an act from which he may become liable, upon the performance of after acts by the assignee, and can be considered as but inducement to his liability. 231. In Decborough v. Vanness, the Supreme Court of a 3 Hals. R. New Jersey decided, that a demand and notice, or something equivalent, are the corner stones of the indorser's right of recovery. In Dwight v. Emerson, the law is 62N. H. Rep. declared in equivalent language, and so are all the author- 159. ities. Rep. In Brickell v. Batchelor, it was held, that covenant cC. & Ν. 109. would not lie on an assignment under seal of a bond for N. Carolina tobacco, the breach assigned being that the obligor did not pay. The opinion of the Court is a brief declaration, that covenant will not lie, without even suggesting the proper remedy. It is clear that debt will not lie in such case, for the obligation of the assignor "is collateral and not absolute," Whiting v. King.d Assumpsit then being the dMinor's Ala. only remaining action for the enforcement of contracts, Rep. 122. must be the legal remedy, or else the party would be remediless at law, which cannot be. ton R. 170. In Baird & Briggs v. Blaigrove's executor, the e 1 WashingCourt of Appeals of Virginia ruled, that where a sealed instrument is inducement to the action, and not the foundation of it, assumpsit may be maintained upon the parol liability. The contract of assignment shews that the ground of action is the employment of due diligence to get the money of the maker, and a reasonable notice of the failure to the assignor; to these the assignment is but inducement: hence I am of opinion that the action is not misconceived. 3d. The ancient and well settled rule, which requires the production of the best evidence to prove a fact, of which it is susceptible, would render inadmissible the copy of a deed, where the original is extant, and within the reach of the party offering the copy. Its admission could only be legalized by statute. By the ist section of the act of the 4th March, 1803, entitled "an act respecting conveyances," it is enacted, that every deed or convey |