Mauran against Lamb

*Mauran against Lamb. NEW YORK, May, 1827. acheckorimt? payabie tó agent^uay yet sue on it in his own name; and it does not object _ the onnterestWanl tereiw^the plaintiff’s cescTnnotbeconv. pelled to testiiy without his consent recoriPcamiot be ^componed Whether a con^peuédn answer a quesswering ‘of winch may ject him to a civil suit ? Quiere. A broker who lends money, and takes a check for his principal, including his commissions in the check, is yet a competent witness for his principal, in an action against the drawer on the check. Assumpsit by the plaintiff, as bearer, against the defendant, as drawer of a check, on The Bank of America, dated ^e'w'York, October 21, 1824, for $1912 02, payable to n0- 25, or bearer, 1 The cause was tried at the JNew York circuit, March 1826, before Duer, 0. Judge. It was admitted at the trial, that the plaintiff had no inter est in the check; but sued for the benefit of Mrs. Bemsen, to w^om che°k belonged, with her consent. There was a question made, whether the check had been demanded of the defendant; and the plaintiff offered one Lawrence ag a -witness, to show that a demand had been waived, 7 . Lawrence had, as broker, negotiated a loan to the defend-anb on which the check was given, and charged certain emissions, which were included in the check. The defendant objected that the action was not sustainatoP^11^ in his name; but the objection was overruled. Lawrence, before he was sworn in chief, denied all interest on his voire dire. The fact of his commissions bejng included, came out in the course of his examination' in chief; but the objection on account of his interest-was not renewed. He proved a clear waiver of demand, as will . be seen by the opinion of the court. The defendant set up the defence of usury in the check, between Lawrence and the defendant; and various evidence was given upon this point. Among other witnesses, the defendant offered Mrs. Eemsen, the person for whose benefit the action was brought; but, on her objection, and claiming the privilege not to testify against her interest, the judge allowed the claim; and she was excused from giving evidence. Verdict for the plaintiff. *J. J. Roosevelt, for the defendant, moved for a new trial. He said the defendant’s undertaking was not absolute. (3 John. Cas. 259; 2 id. 75; 9 John. 121; 12 id. 433; 19 id. 391.) Lawrence was interested; and there was not, at any rate, such an explicit waiver of demand and promise to pay, as the cases require, in order to sustain the action. (5 John. 248, 375; 12 id. 423; 3 id. 68; 16 id. 152; 8 id. 384.) The plaintiff was not the proper person to bring the action. He was a mere agent. (10 John. 387, 224; 1 Chit. Pl. 5.) The defendant’s right of set-off may be defeated by such a contrivance, both as to the nominal and real plaintiff. (5 Cowen, 231; 1 John. 319.) The defendant is also deprived of the testimony of the nominal plaintiff. The real plaintiff should have been compelled to testify. There is no doubt she might be compelled to answer by bill of discovery. Why alia lex Rtmoe, alia lex Athmis t Indeed, the question upon the privilege of the witness may be considered at rest, since the decision in Lord Melville’s case. (1 Hall’s Law Journal, 225, 230, 231.) The counsel also cited 11 John. 245, 19 id. 268, and 4 Cowen, 399. Hallet and Walker, contra. As to the want of demand, it is a sufficient answer, that the defendant has sustained no injury by the omission. But clearly here was a waiver. The court will not inquire into the right of the holder ... . , . ... . to bring the action, unless it appear that his possession is mala fide. (3 John. Cas. 263.) The defendant was not precluded from any equitable defence. Ho right of set-off was pretended. The party in interest, or any other witness, cannot be compelled to testify against their own rights. (10 East, 395; 1 Str. 406; Kirby’s Rep. 203; 2 Root’s Rep. 528; 2 Barn. 436; 7 Mass. Rep. 131; 3 Conn. Rep. N. S. 528; 1 Martin’s Lou. Rep. 23; 1 Overton’s Tenn. Rep. 340.) *Lord Melville’s case does not decide that a party in interest shall be compelled to testify. This cause was decided in February term last. But in Planter's Bank v. George, 6 Martin, 670, it was held that a witness is not protected from answering a question, on the gi Mind that he may thereby render himself liable in a civil suit. [MAJORITY — Curia, per Woodworth, J.] Curia, per Woodworth, J. Whether a demand of payment was made out or not, seems not to be material; inasmuch as there is sufficient evidence of a waiver, provided Lawrence was a competent whness. He states, that in his transaction with the defendant, he acted as the agent of Mrs. Remsen; that the defendant repeatedly promised to pay the check after it fell due; that on the 17th of ¡November he wrote to Lawrence that his efforts to collect enough to pay the note had been unavailing; and that it should be provided for on the then next Monday or Tuesday. Here then is an admission that the defendant had not funds tó pay; and an implied waiver of a previous demand, if necessary to entitle the plaintiff to sustain his action. But it is contended that the plaintiff, being a'mere agent, and having no interest, cannot maintain this action. It appears that the plaintiff came fairly by the possession; and his name was used for the benefit of Mrs. Remsen, claiming to be the person in interest. The rule is, that the bearer of a note or bill payable to bearer, need not prove a consideration, unless he possesses it under suspicious circumstances. (1 Chit. on Bills, 51.) If a question of mala fide possessio arises, that is a fact to be raised by the defendant, and submitted to the jury. Conroy v. Warren, 3 John. Cas. 259. In that case, Mr. Justice Kent referred ' to Livingston v. Clinton, decided July term, 1799, where the law was laid down, that if a note be indorsed in blank, the court never inquires into the right of the plaintiff, whether he sues in his own right, or as trustee ; that any person in the possession of a note may sue: and he says a decision to the like effect, (Cooper v. Kerr,) was in March, 1800, affirmed m the court of errors. In Payne v. Eden, 3 Caines, 213, the note was indorsed to the plaintiff. He had no interest; but was merely a trustee for others. Ho objection was taken to his *want of interest. The question was as to the consideration of the note; and that being illegal, the plaintiff failed. Thompson, justice, who delivered the opinion of the court, considered the cause in the same point of view, as if the original parties were before the court. In consequence of proving that the plaintiff has no interest, the remedy is not defeated: but the defendant is permitted to avail himself of a defence against the original party, It is no answer to say that the defendant cannot plead a set-off against the cestui gue trust. It may, in some cases, be a hardship, as such a defence applies to the parties on the record only. The act authorizing a set-off may not be sufficient to meet this case: but the remedy is with the legislature; not the courts of justice. It is well settled, that the plaintiff on the record cannot be compelled to give testimony. Mrs. Eemsen was the real plaintiff, and had a direct interest in the event of the suit. I think she was not bound to give evidence, unless by her assent. This question has not, I believe, been directly settled in our courts; but it falls within some of the rules of evidence which have been recognized and acted upon. In Bain v. Hargrave, (K. B. 35, Geo. 3, M. S. cited in Peake’s Ev. 184,) Ld. Kenyon held that he would not oblige a witness to answer any question that might tend to charge him with a debt; that a man might come voluntariiy, and charge himself with a debt; but could not be to charge himself civilly, any more than to make himself liable to a criminal prosecution. And in Raynes v. Towgood, (37 Geo. 3, M. S. id.) he would not compel a witness to give evidence which would subject him to a pecuniary penalty. In Lord Melville’s case, (1 Hall’s Law Journal, 223, Peake’s Ev. 188,) questions were proposed to the judges, whether a witness can be required to answer a question, the answering of which may establish that he owes a debt recoverable in a civil suit. The judges were divided in opinion; eight being in the affirmative, and four in the negative. This gave rise to the act of 46 Geo. 3, which declared that a witness cannot, by *law, in such cases, refuse to answer. The court of king’s bench decided, in The King v The Inhabitants of Woburn, (10 East, 395,) that a rated inhabitant of a parish is to be considered a party to an appeal between his parish and another, touching the settlement of a pauper, although the nominal parties be the church wardens and overseers of the poor of the respective parishes; and being, as such party, directly interested in the event of that proceeding, he cannot be compelled to give evidence by the adverse parish, even since the statute of 46 Geo. 3; not being within the words or meaning of that law. This act is declaratory; and evidently intended to declare the law as laid down by a majority of the judges. It was not intended to apply, nor are the opinions of a majority of the judges to be understood as applying to the party on the record, or the party directly in interest. Lord Ellen-borough observed, that “ the act takes away the right of objecting by reason only, or on the sole ground, that the answering the question may establish, or tend to establish, that the witness owes a debt, or is otherwise subject to a civil suit. But this is not the ground of the present objection ; nor does it appear to have been the intention of the legislature to alter the situation of parties to a suit or proceeding.” The rated inhabitant was considered as much a party, as if his name had been used on the record j so that, without definitely pronouncing an opinion on the question whether a witness is compellable to make an answer whereby he may subject himself to a debt, it may be safely affirmed in this case, that the real plaintiff is privileged ; and has ever been so considered in judgment of law. Mrs. Eemsen was the real plaintiff; and is entitled to the benefit of this rule. In Title v. Grevett, (2 Ld. Raym. 1008,) it is laid down by Holt, Ch. J., that a witness, though he may, shall not be compelled to give evidence which will subject him to a civil action. So also in Appleton v. Boyd, (7 Mass. Rep. 131,) it was held that a party in interest was not bound to testify against his consent. We ought not to relax the rule, because the party may obtain the ^evidence by bill of discovery. We are in a court of law, and must be governed by the rules of evidence which have been adopted there. Certainty is of the greatest importance in questions of evidence ; and ought not to be departed from for the sake of laying down what may be considered an improved rule. With respect to the interest of Lawrence, it appears that the commissions charged were included in the check. That belongs to Mrs. Eemsen. If Lawrence is to be credited, her funds were advanced for the check. I do not perceive that Lawrence can establish a claim against the defendant for commissions.. The holder of the check will recover that portion as well as the residue. From the COurse of the transaction, I consider Lawrence as having passed to Mrs. Bemsenthe whole check; and he must look to her for the amount of his commissions. Whether Mrs. Bemsen succeeds or not, will not,, I apprehend, affect his claim. The motion for a new trial must be denied. Mew trial denied. ‘ See 3 Kent’s Com. 78; Pearce v. Austin, 4 Wharton, 489. In New York a witness cannot refuse to answer any question, on the ground that his answer will subject him to a civil suit. 2 N. Y. Rev. Sts. 405, § 71. The excuse for not answering, on the ground that the witness’ answer will subject him to a civil suit, is denied, upon common law authority, in Kentucky; (Gorham v. Carrol, 3 Litt. 221; Black v. Crouch, id. 226; Robinson v. Neal, 5 Monroe, 215; Conover v. Bell, 6 Monroe, 157;) and his answer is admissible against him in another controversy. (Helm v. Handley, 1 Litt. 221.) So in Pennsylvania; (Baird v. Cochran, 4 Serg. & Rawle, 397; Nash v. Van Swearingen, 7 Serg. & Rawle, 192;) Maryland; (Taney v. Kemp, 4 Har. & John. 348; Naylor v. Semmes, 4 Gill & John. 273; The City Bank of Baltimore y. Bateman, 7 Har. & John. 104; Stoddart's lessee v. Manning, 2 Har. & Gill, 147;) Massachusetts; (Bull v. Loveland, 10 Pick. 9;) though Appleton v. Boyd, (7 Mass. Rep. 131,) inclined to the contrary; New Hampshire; (Copp v. Upham, 3 N. H. Rep. 159) Ohio; (Cox's adm'rs v. Hill, 3 Hamm. 424;) Louisiana; (Planter's Bank v. George, 6 Mart. Rep. 679; overruling Navigation Company v. N. Orleans, 1 Mart. Rep. 23;) and North Carolina; (Jones v. Lamier, 2 Dev. 480.) Otherwise in Connecticut; (2 Storrs v. Wetmore, Kirby, 203; Starr v. Tracy, 2 Root, 528; Benjamin v. Hathaway, 3 Conn. Rep. 528;) and Tennessee; (Cook v. Corn, 1 Overt. 340; Tatum’s ex'rs v. Loftan, Cooke, 115.)