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CARROLL V. PEAKE, 26 U. S. 18 (1828)

U.S. Supreme Court

Carroll v. Peake, 26 U.S. 1 Pet. 18 18 (1828)

Carroll v. Peake

26 U.S. (1 Pet.) 18


When a party to an agreement, signed by the other contracting party, had delivered to such, party a copy of the agreement in his own handwriting, but not signed by him, and from the nature of the instrument it was to be fairly presumed the original was in his custody, notice to produce the original paper in order to give the copy in evidence is not necessary. Such a copy, when offered to charge the party by whom the same was made and who, by the tenor of the agreement, was to perform certain acts therein stated may be considered not as a copy but as an original in relation to the obligations of the party giving the copy, and be so given in evidence.

Where letters, a part of the evidence in the court below, have become lost or mislaid, everything is to be presumed to have been contained in them to support the opinion of the court in relation to their contents, and the party who denies that the letters authorized the decision of the court upon them, must show by evidence their contents.

Surplusage in pleading does not in any case vitiate after verdict.

In a declaration upon an agreement by way of lease, by which the lessor stipulated to let a farm from 1 January, 1820, to remove the former tenant, and that the lessor should have the tenancy and occupation of the farm from that day, free from all hindrance, the assignment of breaches was that although specially requested on the said 1 January, the defendant refused and neglected to turn out the former tenant, who then was or had been in the possession and occupancy of the land, and to deliver possession thereof to the plaintiff, this assignment is sufficient.

It is sufficient that the averment should state the plaintiff's readiness and offer and his request on the first day of January generally, and not at the last convenient hour of that day, and if an averment of a personal demand is made, it need not have been on the land.

The strict doctrines relative to averments in pleading have been applied to special pleas in bar, of tender, and some others of a peculiar character and depending upon their own particular reasons.

Declarations containing general averments of readiness and request have been held sufficient, especially after verdict, unless in very peculiar cases.

The defendant in error instituted a suit against the plaintiff in error to recover damages arising out of alleged breaches of an agreement in the nature of a lease dated 18 December, 1819. The declaration stated the agreement, and the damages claimed were as an indemnity for expenses incurred by the plaintiff under the agreement for losses of profits and for not turning out the tenant who was in possession of the property when the agreement was made. To support the issue on his part, the plaintiff offered to read in evidence to the jury the following copy of a paper (the original of

Page 26 U. S. 19

which was signed by Joshua Peake) and which was admitted to be wholly in the handwriting of the plaintiff in error.

"I agree to rent of Daniel Carroll, of Dudington, the land rented heretofore to Wilfred Neale, the same being in St. Mary's County, for which I oblige myself to pay, on 1 January, 1821, for one year, from 1 January, 1820, six hundred dollars ($600), and to pay all taxes on the same independent of the above rent, and also I oblige myself to keep the premises in good repair and not to commit nor suffer to be committed any waste on the said premises."

"Witness my hand, this 18 December, 1819."

"It is agreed that the taxes shall be paid by Joshua Peake, and the said Carroll will allow the same on the tax bill, receipted, out of the rent."




To the admission of this paper by the court the counsel for the plaintiff objected, but the court allowed it to be read by the jury, upon which it rendered a bill of exceptions, and by writ of error the cause was brought before this Court.

Page 26 U. S. 20

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