Parsons v. Phipps

4 Tex. 171

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Lipscomb, J.

We propose to discuss the objections to the competency of tlie witness offered and rejected in the court below, first, on the ground of interest in tlie result of tlie suit, and, secondly, on the ground of his being on. the bill sued on as acceptor.

The first will be subdivided, first, on the interest of the witness as acceptor of the bill, and, secondly, his being a party on tlie record in the suit.

On the first I cannot perceive any interest in tlie result of the suit that could go to his disqualification as a witness. As acceptor lie was liable on the hill, under any circumstances that did not show that it was void in its incipieucy as against law, to tlie payee, the plaintiff, whether lie had accepted on a fund drawn on or as an accommodation to tlie drawer. If lie is the accommodation acceptor, and should pay and satisfy any judgment that might he rendered against him as acceptor in a suit lie might institute against (lie drawer, neither (lié judgment nor (lie bill itself could bo made the foundation of his action against tlie drawer. (Close v. Fields, 2 Tex. R., 235; Chitty on Bills, 569.) If. then, a judgment in this suit could not he evidence in his favor as between liiuiself and the drawer, lie luid no such ini crest in the result of the suit as-would have rendered him an incompetent witness.

Tlie next inquiry then is, does the fact of his being a party to this suit as a defendant give him such ail interest in tlie result as to make him incompetent as a witness for the plaintiff when lie is willing to testify in the action? This-question is thought not to have been well settled in tlie United States. Tlie dictum often found in the books, that a party to tlie suit cannot be made a witness in his own case, is perhaps correct as a general maxim. This rule is perhaps not strictly applicable to any other state of the case bnt to his being offered to support his own side of the question. ¡.Should, however, the opposite party choose to waive the objection and risk such evidence, I cannot perceive how, on principle, he could be rejected on tlie ground of iucompetency. He could not. lie called on against his will to testify; but. if willing, and called by the opposin' party, it would seem that, on principle, he ought to be held a competent witness. 'Phis is believed to be the doctrine of tlie Supreme Court of Pennsylvania in Taylor v. Henderson, (17 S. & R., 453.) Not having tlie authority'before me, I cite a note by the publishers.qf Smith’s Leading Cases on the above case : “The Supreme Court of Pennsylvania determined that a party to a. suit could not be examined as a witness, even in opposition to Ills own'interest, against his consent, and that, when a writ issued on a joint cause of action, against; several defendants, those 'not servedwith process were parties within (lie meaning of the rule. It would seem that this exemption is, however, in that state, only for the party indiri'duatty clip tiling it, and intended to save’his conscience, from the stress to whieh.it might (be. put by an examination against the, real or supposed interests which he may believe to arise from liis peculiar position; for it maybe waived by liiui, and if so, it cannot be claimed by the other parties on the record. They can only object to the.testimony of the. party where lie is called to swear in support .of-liis own interest, but not when lie is called to give evidence against if, nor when lie is without interest in the event of tlie suit, though a party to the action.” (Steele v. Phenix Ins. Co., 3 Bin. R.. 306; Perviance v. Dryden, 3 S. & R. R., 402; Willings v. Consequa, 1 Pet. C. C. R., 307.)

In New York it is held that a party cannot he a witness, not even with his .consent, and it applies where lie is without interest, or is called to give evidence against liis interest. (4 Wend. R., 457.) The-rulo established by tlie courts of New York would seem to be hard to reconcile to sound principles, and if sustainable at all, it must be by eireunistances of policy that in tlie opinion of tlie court required its adoption. It is singular that the acknowledgments of a party out of court could be made evidence if against his •Interests, and yet lie would not he permitted to swear to these facts before a jury, though willing to do so. In courts of equity there is no doubt a party may be compelled to testify against himself; and in England, on common-law rules of evidence, in the courts of law, for a long time a party had been perihitfed to give evidence, if called upon by tlie adverse party and he is willing to testify.

There is a case reported in 1 Taunton, 378, of Williamson & Twibill v. Norton. The jilaintiffs were partners in trade." On "tlie trial defendant called Twidill, (lie plaintiff, as a witness, and on liis evidence the jury returned a verdict for the defendant. On a rule for a new trial on tlie ground that Twibill’s testimony was inadmissible, Mansfield, Ch. J., (not Lord Mansfield,) said: “This is a new case. I never before remember a plaintiff to have been called as a witness, and perhaps tlie same tiling may rarely occur again. Since the decision in Lord Meivill’s case, it is no longer law that a man cannot be compelled to answer against liis civil interests; b.ut suppose that decision will not extend to compel a plaintiff to answer in his own cause at least, I know no reason why, if the defendant is willing to admit him, and the plaintiff is wilL ing to give evidence against himself, lie shall not be suffered to do so. If his evidence proves adverse, the consequences must fall on the defendant who ventured to call him.” The case of Worrall v. Jones, Jones & Baker, reported in 7 Bing., 395, was debt on a bond, conditioned for payment of rent on an ancient ieaso, by Edward Jones, one of the defendants. Tlie two Jones suffered judgment to go by default. Baker alone pleaded that the lease expired in 1816, and averring that up to that time the vents had been paid. The plaintiff called Edward Jones, who proved that liis tenacy continued, under liis contract, from 1806 up to 1829. The plaintiff obtained a verdict; and on a rule for a new trial on the ground that his evidence was inadmissible, on the hearing, Chief Justice Tindal, at Hilary Term, 1831, gave the judgment of the court. He says: “At the trial of this issue the plaintiff proposed to call the said Edward Jones to prove the continuance of the ancient tenancy. No objection could arise on the ground that Edward Jones was interested to procure a verdict for the plaintiff', who called him, inasmuch as, being the principal debtor, he could not call for contribution from the other defendants, and must himself be ultimately liable, both in the costs and damages recovered in this action. The witness did not himself object to being examined, hut the objection was made on the part of Balccr, the defendant who pleaded; and the question reserved for our consideration is whether a defendant who has suffered judgment by default, and who consents to be examined, is'an admissible witness when lie has no interest in the event of the suit, and the only objection to liis inadmissibility is that he is a party upon the record; and upon this question we are of opinion that the evidence was admissible. No case has been cited, nor can any be found, in whicli a witness has been refused upon the objection in the abstract that he was a party to the suit.” In the ease of Pipe et al., Adm’r, v. Steele & Hawey (2 Ad. & El. R., 732) the same doctrine is declared in the opinion of Lord Denman, in which the ease of Worrall v. Jones et al. is referred to as one of great authority; and after commenting on the reasons urged against the admissibility of such evidence, Lord Denman proceeds: “Now, if the principle of disqualification for interest be the fear that a witness may be tempted to commit perj ury in favor of the party calling him, aud it should appear that, in the actual position of this cause, the defendant, who was produced as a witness for the plaintiff, was interested directly the other way, it would appear to us that the reason for excluding fails, and the witness ought to be received.”

The principles of these decisions seem to rest entirely on the question of interest; and if the party is not called as a witness on his own side of the case, but by the parly adverso to him, his competency cannot be objected to. That he cannot be forced to testify against his will is equally well settled in court of common law. And the reason why he cannot is obvious; it is because to purge the conscience of a party and compela disclosure against himself belongs peculiarly to another jurisdiction. Is there anything in the particular circumstances of the witness in the case under consideration that went to his competency when lie was offered and rejected in the court below?

A case in its features precisely like the one before us cannot be found decided by any court governed by the common-law rules of practice; and to this peculiarity must be ascribed whatever difficulty there may be in the application of the rules of evidence to negotiable paper. At common law the parties to a bill of exchange presenting different liabilities in relation to each other could not be joined in the same action, hut each distinct liability required a separate suit for its enforcement. Now, if the suit had been brought at common law by the holder of the paper against the drawer or indorser, there could be no question as to the competency of the acceptor as a witness. (2 Stark. Ev., 257.) The suit in this ease was brought under our statute against 'the drawer and acceptor jointly. Can the fact of the acceptor being so joined in the suit with the drawer render him an incompetent witness when called by the plaintiff? If so, it cannot be, according to the cases cited, on the abstract ground of his being a party to the suit; it must be on account of an interest in Hie result of the suit. In the eases above cited, where one of the defendants was called, the witness called in each case had suffered judgment by default; and it may have been thought that as judgment had already been given against him. his testimony could not affect the judgment. That distinction might have some force if tiro witness had been called by his codefendant who had pleaded on tiie issue presented by the plea; but when called by the plaintiff, it is not perceived on what principle his competency could be objected to, whether there had boon a judgment by default or not. As the acceptor lie stood immediately liable to the plaintiff in the suit; and liad such an interest in the result of the suit as would have disqualified him had he not been called by the plaintiff. Tlie plaintiff was willing, however, to incur the risk of his evidence being adverse. As acceptor lie was .liable, to the drawer ultimately, bnt not in this suit; and even if his testimony could acquit him, yet sueli verdict could not be used in his favor or against him in another suit, if one should be brought against him by the drawer. Ileuco it seems that the codefendant, could not object to his competency. We will, however, -now define the position of the acceptor in this case, and see if in fact it was in principle essentially different from what it would have been had a judgment been taken against him by default. Tlie record shows that he had not answered, and that a default had been taken against him, but from some cause — probably because the counsel ihonght it would be irregular, under our statute that directs that there shall be but one judgment, to enter up the judgment until after a verdict against his codefendant, and then include, both iA the same judgment — the default was set aside on motion'of the plaintiff’s counsel. Ilis standing, then, when tlie cause was put to the jury, was without plea or answer, and the jury had nothing to do with him; lie had not put himself before them. Had the verdict been for tlie plaintiff on tlie issue, he could not then have been joined in tlie same judgment with his codefendant after the verdict; and I cannot perceive that his position, under such circumstances, as to his competency, was different than if there had been a judgment by default standing against him. It would seem, both on principle and' the authority of adjudged cases, that as to the question of competency, founded' on any supposed interest the witness liad in the suit, lie ought to have been admitted.

There remains to he considered another objection to the competency of the witness, not resting on interest, bnt founded, as its advocates allege, on principles of tlie soundest policy. This objection is that no party to a bill is a competent witness, interest or no interest in the result, to impair its legal validity or its credit. This objection received the sanction of a judicial decision and was acknowledged as a rulo of law in the case of Walton v. Shelley, (1 T. R., 164.) In that case tlie objection taken and urged by counsel was to the competency of the witness, not on the ground of policy, hut that, though not interested in the result of the suit, he was interested in the question. Lord Mansfield, after expressing the opinion that there was nothing in the objection to the witness on that ground, and declaring and approving the modem tendency of courts to go as far as possible consistent with'the authorities, to let the objection go rather to the credit than to tlie competency of a witness, proceeds : “But what strikes me is tlie rule of law, founded on public policy, which I take to be this : that no party who lias signed a paper or deed shall ever be permitted to give testimony to invalidate that insfcrument'wliich he has so signed. And there is sound reason for it; because every man who is a party to an instrument gives a credit to it. * *. * The civil law says, Nemo allegans suam turpitudinem est audiendus.” Willes, Asliuvst,. and Buller, justices, concurred with the Chief Justice on tlie rule that no man should be permitted to allege liis own turpitude. The supposed rule of tlie civil law that seems to have influenced the judges in this ease has been denied to have any existence in the Boman code, (Gilm. R., 275;) but whether it he a maxim in the Boman code or not, when well and correctly applied it is an axiom of truth and sound morality; it is not, however, applicable to witnesses, bnt to parties; and it is that no man shall lie permitted to allege in his own defense his own turpitude. This is doubtless the correct version, and it is the one given by eminent jurists in England and America. This rule, though sustained by tlie groat name of Lord Mansfield, one of the most learned jurists of his das'-, did not long survive his lordship. The ease of Bent v. Baker (3 .T. B., 27) was tried before the King’s Bench, Lord Kenyon then occupying tlie same position that Lord Mansfield had in the same court when Walton v. Shelley was tried. The question presented was one of iucompetency oil the ground of interest; in which the same views were expressed by tlie court — to lean in all such questions, to let the objection go to the credibility rather than to the competency, ami to reduce the number oí objections to competency. The court held that the. objection was not well taken. This case has been supposed to have, relieved the question of competency from much obscurity and embarrassment thrown around it by the previous couliictiug decisions. And it is further remarkable in this that in the report Lord Kenyon is made to say that the rule laid’down that a witness could not be heard to testify against what he had sanctioned by his name was not sound in all cases. “I therefore entirely agree with tlie distinction taken by my brother Buller, that where a person has signed a negotiable instrument, he símil not he permitted to invalidate it by his testimony. But that is not,the ease hero.” This sanction of Lord Mansfield’s rule, it will be seen by and by, was declared by Lord Kenyon to have been an interpolation, and that he had never uttered it. This ease was not a case on a negotiable note, and therefore any expression as to any particular rule in such eases was not called for and not, therefore laid down. As far, however, as the case went it did not infringe the rule in Walton v. Shelley. It was on a policy of insurance, and it permitted the broker who had procured it to be executed to testify against it, although he had witnessed it. In this the rule, if not denied, was certainly restricted aud qualified.

It was, however, in the memorable case of Jordainc v. Lashbrooke (7 T. R., G03 and 004) in which the rule in Walton v. Shelley was fully and fairly encountered aud entirely subverted. It was a suit on a bill of exchange against the acceptors. The bill is as follows: “Hamburg, 30th December, 1790. For £100. At three usances pay this my first bill of exchange to the order of Messrs. J. Tliynne & Co., £100 sterling, value iu account, and place it to account of G. W., as advised by David Hinr. Meijor. To Messrs. T. Lashbrooke & Son, London which was accepted by the defendants and indorsed by Tliynne & Co. At the trial Thymic was called by the defendants to prove that the bill, though dated at Hamburg, ivas in fact drawn in Loudon, in which case it could not be received in evidence, it not being stamped. On the part of tlie plaintiff it was objected that it was not competent to the defendants, who had accepted the bill, to produce any evidence to show that (lie hill was void in its creation, and if it were, that Tliynne, the payee and indorser, was not a competent witness to prove the fact. The objection was overruled, and the admissibility of this testimony was submitted to the judges of the Court of King’s Bench. Lord Kenyon: “The question for onr consideration is whether it was proved by competent testimony that the bill, which professed to be a foreign bill and drawn at Hamburg, was really drawn in England. The case has been argued most ably, aud every topic has been brought forward on the part of the plaint ill that hears upon the point; hut still I have a very strong opinion upon the question, which I wish to deliver now, lest it should be supposed that I entertain doubts upon it. The proposition attempted to be established by tlie plaintiff is Ibis : that for some technical reason, or for some reasons of policy, a court of justice must shut its ears and not suffer facts to be disclosed which may lie laid -before them by a witness who is not infamous in his character and who has no interest in the cause. If the law be so, there is some novelty in it. I have always understood the rule to be that where the witness is infamous, and his record of conviction is produced, or where he is interested in tlie event of the cause, ho -cannot be received; hut to carry the rule beyond that would be extending it farther than polic3r, morality, or tlie interest of the public require. The rule contended for by the plaintiff is this : that however infamously you (the dofend-•ani) may have been used, whatever fraud may have been committed on you, whatever may he tlie rights of other persons, if I, (the plaintiff',) tlie parly to tlie fraud, can get on the instrument the name of the persoii who may be the only witness to the transaction, I will stand intrenched within the. forms of law, and impose silence on that only witness, though he he a person of unimpeachable character and not interested in the cause.” Tlie whole of the opinion is interesting, hut it is not convenient to insert it hero. lie says : “ It has been argued Lliat. the defendant is (‘.slopped in this case; but estoppels are odious, and ought not. to be extended nii'ilier than the law lias already carried them. The word mloppcl doc's not apply to.such a case as the present. When the drawee ueuepi s a bill, he admits t lie bill was signed by the person by whom it pnnVs.-es !o li;i\e been made, but lie does non thereby admit the holder of the bill is in a condi;ion to enforce payment of it.” lie proceeds : “But I wisli to correct, an expression imputed to me in the, report of that case, (Bent v. Baker,) ‘that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by liis testimony;’ because having-frequently weighed this subject in 1113' mind, aud having uol only entertained a contrary opinion, but having always acted upon that opinion at nisi prius, I think I never could have used the. expression imputed to me.”

Mr. .Jnstice Ashurst, who had participated in the decision of Walton®. Shelley, dissented from the opinion of Lord Kenyon and supported his former opinion, and based it on the policy of supporting the paper currency of the kingdom as the life of the commercial prosperity of the country. Grose and Lawrence, justices, concurred with the Chief Justice, and gave very learned and interesting opinions. The doctrine of this case is believed never to have been questioned from the time of its ruling down to the present in the courts of Lug-land. In the American courts, however, there has been quito a diversity of opinion. In the. case of the Bank of the United States v. Dunn (6 Pet. R., 51) the Supreme Court of the United States affirmed the doctrine laid down in Walton v. Shelley. Judge MeLaue, who delivered the opinion of the court, rests the decision of the court apparently entirely on that case ; and in the Bank of the Metropolis v. Jones (8 Pet. R., 12) the decision in the preceding case is supposed by Mr. Justice Barbour to be sustained by reason aud authority. But it seems that, however ivell satisfied in the previous decisions, the court changed its ground in United States v. Lefller (11 Pet. R., 86) and in Scott v. Lloyd, (12 Pet. R., 145,) from which cases it would seem that the rule acknowledged by Mr. Justice Barbour to be sustained by reason and authority lias been either repudiated or subjected to many exceptions. It is believed that the doctrine laid down by Lord Kenyon in Jordaine v. Lashbrooke is sustained and followed by much the greater number of the American State Courts; and many able adjudications may be found in favor of receiving such testimony, particularly in the courts of New York; bud in none with which I have met has there bcoii more research and ability shown than by Judge Whipple, of the Supreme Court of Michigan, in the case of Orr v. Lacey, (2 Doug. R., 230.)

It will lie seen (hat the rule in Wahon v. Shelley was never known to the jurisprudence of England (so says Lord Kenyon, Grose and Lawrence, justices, in Jordaiue v. Lashbrooke) until adopted by Lord Mansfield in that ease. And it is known to (‘very jurist, that, although Lord Mansfield was one of the ablest judges who ever presided in the Court of King’s Bench, he had so thoroughly convinced himself that the prosperity, if not the very existence, of his country depended on its commerce, and that this subject engrossed the entire energies of his great, mind to such an extent that he often lost sight of the means to effect the prevailing wish of his heart, in giving strength ami thereby extending the influence of the commercial interest of the nation, lienee it has been said that, during the period that lie, presided in the King’s Bench he made more laws for the regulation and encouragement of commerce than were made by king and Parliament, (luring the longest and most prosperous reign. When, therefore, lie boldly lays down a new rule on (he subject of evidence, because it is called for to give- credit to aud sustain the paper circulation on which he supposes commerce to depend, it is hut too clear that he was exercising legislative jurisdiction, and did not confine himself to bis judicial powers. It does seem, therefore, that the rule in Jordaiue®. Taslihrooke is well sustained oil sound legal principles; and that it is most abundantly supported by adjudged cases there can be no doubt..

The distinction between the credibility and competency of evidence had in many instances been so metaphysical as to present the most absurd residís; such as, when it is ruled lo he a law oí evidence that the smallest possible interest in the result of the suit, when that interest, small as it might, he, if to he acted on by the judgment in the cause, constituted such an objection as to-preclude the evidence, yet a person not directly so interested may have, an interest indirectly to a large amount, and depending upon precisely the. same question, and can he a witness. An only son and'a forced heir to an aged father tottering on the brink of the grave, and, by the operation of the laws of nature, incapable of long withholding a large estate from that son, yet, in a suit involving the title to that very estate, the son is a competent witness for his father; but if he had become security for costs, however small the amount, lie would be incompetent. Jurists have for a long time felt and acknowledged this defect, and it has given rise to tills rule: that whenever the question of interest is at all doubtful, to permit the evidence to go to the jury, with the objections arising from the circumstances under which the witness swears, to be considered by the jury as going to his credibility. This rule was laid down as long ago as the time of Lord Hardwick, and was so laid down by him in the case of King v. Bray, (R. Temp. H., 360.) It was acknowledged by Lord Mansfield in Walton v. Shelley, and by Lord Kenyon in Bent v. Baker. Backed by such authority, if we. had been doubtful as to the competency of the evidence offered in the ease before us, we would have decided.that it ought to have been received; but in truth the question is free from all doubt. The judgment must be reversed and the cause remanded.

Note 73.—Dial v. Crain, 10 T., 444; Hall v. Murphy, 14 T., 637; Wane v. Bennett, 18 T., 794; McGown v. Randolph, 26 T., 492. Note 74.—Hillebrant v. Ashworth, 18 T., 307.

Judgment reversed.