1 Cai. Cas. 363 | N.Y. Sup. Ct. | 1803
Show how the interest here does not incapacitate.
The case of a mortgagee being inadmissible m an ejectment to testify for his mortgagor, is widely different from this. There the mortgagee has a direct legal interest, by the operation of a legal instrument. His mortgage gives him an interest at law.
I am aware that, after receipt of the sums in demand, there may, perhaps, be a remedy at common law for recovey of the amount of the order; that an action for money had and received may be maintained. But let it be remembered, •this species of proceeding is, in its nature, like a bill in chancery. It admits of every equitable plea as a defence; set-offs, prior liens, and the whole train of occurrences which would give the defendant a title to prefer others to the plaintiff. The cases from Vezey, senior, and Vesey, junior, are nothing more than chancery decisions respecting funds in possession, and Powel v. Gordon, (2 Esp. 735,) is an authority directly in our favor. There the witness had a power of attorney to receive the money when recovered, so that the fund out of which his debt was to be paid, would have come into his own hands ; but your honors will [*371] please to observe that Lord Kenyon asked *him if he was willing to permit any other person to- _ receive the money, and it was not till he refused this that he was deemed incompetent. The reasoning, then, of this decision is, that had the money gone into the hands of another, the witness would have been admissible, though it is certain his letter of attorney would have warranted him in demanding it from the receiver. The possibility of intervening claims did away the objection. So with us, as the money was not to go into White’s hands, but into those . of another, he stands precisely in the situation of the witness in Powel v. Gordon, had he consented to another’s receiving the sum in litigation.
It has, therefore, it is presumed, been shown,
2d. That to affect the competence, the interest must be immediate.
3d. That White’s interest was not immediate, but consequential. ■
4th. That admitting a lien to have been created by the order, that does not vary the matter.
5th. That the very case of a creditor witness was put by the whole court of Icing’s bench,' and allowed not to incapacitate; and
6th. That the inferences, unavoidably resulting from Powel v. Gordon, fully establish the competence of White.
The reasoning antecedently used on this point, cannot, it is thought, be better concluded than in the words of Mr. Fonblanque, 2 Fonb. 457, when speaking of the rule respecting the interest of witnesses in causes, on the trials of which they are brought to give evidence; it is, he says, “the most flexible in its application of any.”
The next objection to which it is necessary to advert, is, •‘that paroi testimony of ownership was inadmissible.” For this it has been relied on, that the register act has made a certificate of registry a legal record. It surely will never be imposed on me to demonstrate that such an instrument, or the book in which it is kept, is not a legal record, in the technical sense of the word, import- .[372] ing a verity which admits not of being controverted or substantiated by oral proof. I shall only observe, it has been ruled by Lord Kenyon, that exercising acts of ownership, paying of men,^directing the loading, &c. were sufficient testimony of interest in a vessel. For, in commercial contracts, the highest degree of evidence is not always required. The purpose of the register act was not to make the proceedings under it of record, but merely for state reasons, to enable to collect the duties on tonnage, by ascertaining what ships belong to foreigners, and what are our own.
It is worthy of observation that the abandonment is not denied; it is only asked that we should not be permitted to show it. It cannot be argued that it is indispensable to make the abandonment in writing. We admit it to be usually so done: that however, is nothing more than matter of caution. It was, on that account, done here. But there is no case to show we were obliged to do it. If so, we may prove the contents or effect of the letter of abandonment, without notice to produce it, because it now becomes a fact, like every other, to be established by paroi testimony.
In order to decide on the necessity of giving a notice to produce any written paper served on the opposite party, we have only to call to mind the reasons why it is in any case required. They are, lest a misrepresentation should be made of any fact which constitutes the foundation of the wtion, and which, though in possession of the opposite side, yet being unnecessary to his case, might not be brought by him. When, therefore, the contents of the paper in question are not the foundation of the action, a notice to produce it is totally superfluous. Therefore, in cases of notices to quit; notices to a magistrate previously to [*373] commencing an action *against him; the demand in writing of a warrant before proceeding against an officer, or any similar case, notice to produce the notice, need not be given. Jory v. Orchard, 2 Bos. & Pull. 39. So an attorney’s bill, on which an action has been brought,, may be proved without notice to produce the one delivered under the statute. Anderson v. May, 2 Bos. & Pull. 237. So, payment of rent by a tenant in possession can be established, without notice to produce the receipt. Bunn. Eject. 289.
Another reason may also be offered to evince the nugatoriness of a notice to produce the letter of abandonment. It was sufficient to establish it by the copy offered at the trial. Wherever a number of copies are simultaneously made, they are, in law, all originals. Because, being created uno flatu, one is considered the same as the other, and may equally be read in evidence without notice.
Having, it is hoped, obviated the three first difficulties to our retaining our verdicts, the fourth which presents itself, is, “ that there is no proof of the property being the property of a citizen of the United States;” or, in other words, that the warranty of American citizenship has not been complied with.
In combating this objection, we beg leave to state, that in this country there are three different kinds of citizens.
1st. Those who became so at the declaration of independence.
2d. Those who, since that period, have become so by naturalization.
3d. Those who are so by domicil and employment.
' Thus m.uch being premised, it will be necessary to call the attention of the court to those doctrines, on which *the law of warranties has been held to rest. [*374] According to those, it suffices if the warranty be
■ If, however, the court shall be against us on this principle, still we shall contend that the citizenship of Peyton is substantiated by evidence in the cause.
It is an acknowledged axiom that every man’s testimony is to be received or rejected in toto. You cannot cut and garble it. Take one line, if it suits your purpose, and then reject the next; his alienage is before the court, from his own confession, and so is his naturalization. If you believe him on his word that he was an alien born, you must believe him on his word that he has been naturali[*376] zed since. As a *man is charged, so he shall be discharged
Before it is attempted to evince this, I shall beg leave to lay down three maxims.
1st. That all things done are presumed to be rightly done. Griffin v. Stanhope, Cro. Jac. 354; Rex v. Morris, 2 Burr. 1189 ; 1 Wils. 275,
2d. That situations occupied shall be supposed to be legally filled. Lord Halifax's Case, Bull. N. P. 298 ; Lord Purbeck's Case, cited, Cowp. 109.
3d. That fraud and misconduct shall be imputed to no man. Chattle v. Pound, Gilb. L. Ev. 103. If necessary, I shall first substantiate, and then apply these principles.
The principles will not, I fancy, be dia puted.
In order to apply them, it will be incumbent to advert to the testimony in the case.
It is in evidence that the plaintiff commanded an Ameri cari vessel carrying guns. In order to capacitate him fox this command, he must have been antecedently proved, to the satisfaction of the officers in the custom house, an American citizen; for none but an American citizen could occupy such a station. If so, then we are fully within two of the maxims; we have complied with their letter and their spirit; it is, therefore, to be presumed that what has been done was rightly done, and that the situation which Peyton did fill was legally occupied. The inference, consequently, becomes clear as day that the plaintiff is an American citizen. If we hesitate for a moment in pronouncing him so¿ w'e violate every one of those three maxims which have already béen conceded. First, we must presume that whát was done was not rightly done; secondly, that the station filled by" the plaintiff was not legally occupied. We cannot even stop here; we must go on, and not only presume fraud and misconduct, but take for granted perjury upon perjury; all the penalties of the register act incurred, and a long connected system of false swearing, as if by vocation. These are the mild inferences suggested on the part of the defendants; they are such as your honors will surely never make; we trust we are peculiarly justified on ask [*378] ing for those for *which we contend, because when reputation is accompanied with facts, it is good evidence. Per Gróse, J. in Roe V. Parker, 5 D. & E. 32. Here, then, was reputation accompanied with the fact of Peyton’s having commanded an American armed vessel, His citizenship is, therefore, established—
1st. By his domicil and employ.
2d. By the evidence of White.
3d. By reputation.
4th. By reputation accompanied with facts.
5th. By necessary and unavoidable presumption.
The last point is confined to the vessel, and resolves itself
On looking at'the dates of the different circumstances, it' will be found that theré was an intervention of only 29 days from one period to the other. This, it is presumed, cannot be deemed too great a length of time, considering that the' news of the capture must have travelled from the Bahama Islands to Charleston, and from thénce to He'w York. Upon every ground, therefore, it is trusted the verdicts that' have been rendered will be confirmed.
The cases of Barlow v. Vowel, George v. Pearce, and Rex v. Fox, proceed -on this ground; that a person who is a witness shall not, by a subsequent act of his own, deprive others of the benefit of his testimony.
delivered the opinion of the court. These are motions for new trials on the part of the defendants, and among the objections to the verdict it is alleged that George White who was examined for the plaintiffs, was an incompetent witness. This objection appears to me to be well taken
If a man promise a witness that if he recovers lands, he shall have a lease of them, this excludes his testimony. 2 Keb. 576. So, if a person be promised payment out of the sum in controversy, which is the case here, he ought to be excluded, unless he will release
There is no difference amongst us in this cause, but on the point on which .the court have set aside the verdict, viz. the competency, of Mr. White, the witness produced on the part of the plaintiff. I do not concur in the opinion that he was incompetent. The bill drawn in his favor on Napier, the agent, has never been accepted, nor has the fund out of which it was to be paid, ever come .to his hands. White, then, in my conception, had no interest in this fund. The doctrine of lien, has never, that I know of, been extended so far as to vest an interest in one man in a fund which may or may not come into the hands of another. Neither of the cases relied on go to such extent. In Row v. Dawson, Swinburn was in possession of the fund, and Lord Chancellor Hardwicke considered the bill of Gibson as an assignment to the amount of [“381] *the draft. In Powel v. Gordon, the witness was himself the agent who was to receive the fund, by
New trial ordered.
See Code of Procedure, sec. 398.
The principle on which a release makes a witness competent is, that it destroys his interest in the suit, or liability to the parties to it. When, therefore, it will not have that effect, the witness continues inadmissible; as a bankrupt nnder a second commission, though he release his interest in the estate, unless it has paid 15s. in the pound, for he has an interest in increasing his estate to that amount, in order to discharge his future effects. Kennet v. Greenwollers, Peake’s Cas. 3. So a person who appears from the testimony in the cause to be a partner with the defendant, but not sued, cannot, by a release from the defendant, be made a witness for him, because, though such release would discharge his contributory liability to the defendant a< law, he would still, in case of the defendant’s death or insolvency, remait liable in equity to the plaintiff. Cheyne v. Koops, 4 Esp. Rep. 112. Contra, Young v. Bairner, 1 Esp. Rep. 103. It follows, that when a witness is liable to the party for whom called, he cannot testify without a release from such party; as an owner of a house, called by a plaintiff who has done work upon it, to show that the defendant is liable, in virtue of a contract for a certain sum, to make all the repairs and pay the workmen; (New v. Chidgey, Peake’s