1 Cai. Cas. 258 | N.Y. Sup. Ct. | 1803
This application is made on the following grounds
1. That the inquiry offered to be made of the plaintiffs’ attorney, was improperly overruled by the court.
2. That the testimony of Boswell Lombard, the endorser, ought to have been admitted under the circumstances mentioned in the case.
With respect to the first point, I think the inquiry offered
The next question for examination is, "whether -Boswell Lombard, the endorser of the note, was a competent witness to falsify his own endorsement, and prove that it was made after it fell due, "and also after the commencement of the present action, with the avowed object of showing that it was m'ade on an illegal consideration, and, of course, void ah initia. This point I think settled, by the principles adopted by this court in the case of Winton v. Saidler, (July term, 1802.) In that case, according to my understanding of it, the court decided, that upon principles of public policy, a person whose name appeared upon a negotiable note, and who had contributed to give it currency and circulan on, should not be admitted as a witness to invalidate it. In that "'case the witness was called to prove the note was made upon a usurious consideration, and of course void .in the hands of an innocent endorser. In the present case, [*268] the object *avowed was general, to show the note was illegal and void. It is not explicitly stated whether the illegality of the note was to be proved by the endorser, or by other testimony. If by the former, he would most clearly be incompetent within the decision in the case of Winton v. Saidler ; and I cannot discover why the same principles of policy do not exist to exclude him from proving a collateral fact, for the express purpose of destroying the note: The note purports to have been endorsed before it fell due. The fact to be established by the endorser was, that it was transferred after it fell due, and, of course, open to impeachment. This was an indispensable pre-requisite; it was an entering wedge to effect its destruction. < If this note was founded on an illegal consideration, the same malady would attend it, if it should pass through the hands of a dozen innocent endorsees, who had taken it
I am, therefore, of opinion, that the plaintiffs ought to have judgment upon the verdict of the jury.
The defendants, on the trial of this cause, insisted that the note was endorsed after commencement of the suit, and to prove this fact produced the endorser, whose testimony was not received. Whether the endorser be a proper witness for this purpose, is unnecessary now to decide; There is great danger in permitting any one whose name appears on a note, which is the subject of controversy, to be a witness at all. The court will not receive him to impeach its validity; and when a fit occasion offers, it will merit serious consideration whether it will not be best to exclude him altogether. It is true, that a man who comes forward merely "to prove when he put his name on a note, does not excite so much detestation, as one who [*270] basely obtrudes himself *to destroy a security to which he has given currency, by affirming that it was given on an illegal, or without • any, consideration. The rule of the civil law, therefore, which says, '•'■nemo albgans suam turpitudinem est audiendus,” is adopted both in England and in this state: so also in Pennsylvania, the endorser and original payee was not permitted to invalidate his own instrument, by establishing a want of consideration, although he was a certificated bankrupt, and not interested.
But as the defendants did not relinquish the defence arising from an illegal consideration, until all their testimony to this point was rejected, it may be well to inquire whether the source from which-it'was offered to be drawn was proper.
Mr. Bacon, the plaintiff’s attorney, was produced only to ascertain the time of the endorsement. Whether his relation to the parties' exempted’ him from answering the questions proposed, is not absolutely necessary to decide; because, in the view which I have taken of this subject, these questions were impertinent, unless the illegality of the contract could be established. I think, however, that the judge did right in imposing silence on-him after his declaration, “ that he had no knowledge of the note, previous [*272] *to his being retained, nor of any circumstance relating to the matter in question, but such as had been confidentially communicated by the plaintiff-*.” The right which clients have to the secrecy of their counsel,
The only witness, then, by whom the contract could have been impeached, was the endorser; and he being a party to it, was properly rejected.
Upon the whole, my opinion is, that as no one was produced to invalidate the note, which at one time was the only defence set up, but the endorser, and as his testimony could not be received consistent with our decision in Winton v. Saidler, it became improper to show when the note was endorsed merely for the purpose of compelling the party to bring a new action. This principle is recognized by this court in the case of Platt v. Platt, in April term, 1795, Col. Cas. 36, and Hob. 199, cited in favor of it. “It is regularly true,” says that authority, “ that if the plaintiff will himself discover to the court any thing, whereby it may appear that he had no cause of action when he Commenced it, his trial shall abate; of his [*273] own showing it was against him." On this our
The note on which this action is brought fell due on the 31st March, 1799, or at the end of the three days of grace thereafter. The endorsement is • dated the 30th March, 1799.
It appears that on the 4th March, 1799, and previous thereto, there were negotiations between the plaintiffs (who afterwards became the endorsees) and the defendants, respecting the payment of the note; and also that a suit had been commenced before the present suit, in the name of Lombard, the payee, and discontinued on account of some unfair practice by the defendants, as was alleged by one of the witnesses. This evidence was not objected to, and these circumstances proved that the plaintiffs were privy to the original transaction, or acted as trustees for Lombard, the payee. On this ground alone, I am of opinion, enough was shown to entitle the defendants to go into evidence of the consideration of the note.
But the principal point I think is, that Lombard was a
I also think that the questions put to the plaintiff’s at torney, whether he had before seen the note, and whether the name of Lombard was endorsed upon it at the time of commencing this suit, ought to have been answered. It would not have been a disclosure of the secrets of his client, within the sense of the rule which prohibits or excuses an attorney from making such disclosure. • He was not asked to discover any thing communicated confidentially, but to answer a fact which he must have known from his own observation, and which, from its nature, could not be a secret intrusted to him. The endorsement or transfer of a note is a public act, and the discovery by an attorney whether it existed or not, ought, I think, not to be liable to this objection. The authority of Buller, which has been mentioned, is, in my view, to the same effect. I im, therefore, of opinion, there ought to be a new trial. Bull. N. P. p. 284, 288; Esp. Dig. 717.
The motion to set aside the verdict in this cause rests upon two grounds:
1. That the court overruled certain questions from being put to the plaintiffs’ attorney as a witness.
2. That they rejected the endorser as an incompetent witness for the purpose for which he was- called.
With respect to the second point, (for I shall pass by
In all those eases the testimony of the witness produced went directly to destroy the paper. Here the question went no further than to defeat the present action, by showing that it had been prematurely brought. Proof that a note was endorsed after it was due, might indeed lei in the party ■ to an examination of the consideration. But this consequence does not necessarily follow. The object of the party may be merely to set up as a defence payment to the original payee. And if it did necessarily follow, still it ought not to exclude the. witness, because the testimony that he gives does not violate the sanction which his name had given to the paper. The sanction his name gives is, that the paper is valid, because the transaction is legal and honest,- and he must say nothing that contradicts this. Whether the date of the endorsement be, or be not, correctly filled up, is a matter in which the endorser has no concern, nor to which he is considered as having added his assurance, because it is now the established usage for the endorser' not to date his endorsement. It is generally in blan7c, and the holder fills up the endorsement afterwards, according to his convenience. The testimony of-the endorser, as to the time of. the endorsement, does not, therefore, as of course, or by any direct or necessary consequence, affect the validity of the note, or violate his plight
My opinion, therefore, is, that the witness offered was competent to answer the question put, and that there ought to be a new trial, with costs to abide the event.
Lewis, Ch. J. concurred.
New trial granted.
See this principle acknowledged, Smith v. Pickering, Peake’s N. P Cas. 50.
See this case 3 Caines’ Rep. 279.