10 Tenn. 35 | Tenn. | 1821
This action is brought by the plaintiff, an indorsee, against the payee and first indorser, who has pleaded an usurious contract between the maker and last indorsee. The defendant released the maker from all liability to him, and offered him as a witness to prove the usury. The circuit court decided that he was incompetent, and would not admit him to testify to the usury; and the question is, whether the circuit court was correct in this opinion.
Should the plaintiff fail to recover in this action, he may resort to the maker, notwithstanding the release of the payee; therefore, the maker is interested that the plaintiff shall recover, for then he, the maker, will be forever discharged, both as to him and as to the payee, and in invalidating the note he swears against his own interest; he cannot, therefore, be objected to by the plaintiff on the score of interest in the event of the suit.
But it is said, that he is objectionable on the ground, that “no one shall he allowed to prove his own turpitude.” This maxim only applies, where in pleading the allega
Criminal or immoral matter may be alleged in destruction of a right claimed, and of course may be proved; and generally speaking, he who is “particeps criminis,” may swear to it, though in so doing he alleges his own turpitude.
Another supposed rule is resorted to which is, that a man shall not by his own oath invalidate an instrument he has signed, and given currency. Admit for a moment that such was the common law, it would certainly give way to the statute of usury. The only question would he, whether the rule conflicted with the statute,— now the statute of usury provides, that it shall not he evaded by any shift or device whatever. Would it not he an evasion, if the contract could he so made as to he known only to the indorsee and maker, if the latter could not he a witness? Either he must be a witness when disinterested, or the statute would be in most cases illusory. To render it effectual, construction should break down any real or supposed obstacles opposed to it by the common law, and such have been judicial determinations. The British statute provides that the instrument infected with usury shall be utterly void; the courts decided that it should be void as to all persons, innocent indorsees as well as others, though the common law protected innocent indorsees without notice. The rule then for supporting the instrument, and protecting the indorsee, yields to the statute, notwithstanding the policy which requires that an instrument shall not he invalidated by him who signs it. He may, if sued, allege and prove the usury, and invalidate the note in the hands of an indorsee for value without notice'. If such defence were forbidden by public policy, the maker of a note would not be allowed to plead it — if permitted to plead or allege it, he must be permitted to prove it, and if by another’s oath, the same law that tolerates the plea, will also tolerate the oath.—
But indeed if we enquire whether there ever was such a rule at the common law, that he who made an instrument shall not be permitted to invalidate it by his oath, we will not be able to find it. From 2 Ld. Raymond 1008, it is evident there was no such rule as to deeds, and we find in 7th Term Reports 601, that there is no such rule as to negotiable instruments. I am warranted in saying (by the final determination of the Judges of England, after eleven or twelve years examination of the subject,) that no such rule existed in England at any time either before or after the revolution.
There is not that danger to commerce, which is supposed tobe obviated by the rule contended for. Are we more commercial than England was at the time of the decision of Jordan vs. Lashbrooke, 7 T. Rep. 601? Was commerce injured in that country by the decision? There is not so much danger to commerce as is apprehended. Modern experience has proved that excessive usury ruins commerce, and that the punctuality which begets usury, is not the effect of easy circumstances, but of an agonizing struggle to maintain an expiring credit. I am perfectly satisfied, that John Stump was an admissible witness under the circumstances, and that there is error in the judgment of the circuit court, for which it ought to be reversed.
Whyte, Judge. This case presents this question to the court for its opinion: whether John Stump, the maker of the note, is an admissible witness in law, to prove that it was given on an usurious consideration, having no interest in the event of the suit*
This case has been very ably argued on both sides. Upon
But admitting for the present, the claims of these two cases for correctness to be equal, without reference to the reason of them, which we will examine by and by, the point in issue between them, is very susceptible of proof.
The main ground upon which the .rejection of the testimony in the present case is rested, is, the inconvenience and the danger that will result to the public thereby; that the admission of the witness will stop the currency of negotiable paper, destroy confidence and eventually and necessarily paralyze the industry of the country.Particular cases of inconvenience might be put, and that even to some extent on either side, to show that the bearing of either doctrine would operate somewhat injuriously to the party affected. But were it a criterion of the correctness of a rule of law, that its application in all ca
Now, what is the hardship of the rule, of admitting the party to the instrument, (the maker of the note in the present case,) to be a witness to prove it void? The lessen-ings it is said, the security of an indorsee. Place the argument in the strongest position possible, and suppose this indorsee to be the holder of the note for full value paid by him, and that without notice of the previously existing illegality of the transaction; his case is not desperate — he has recourse to, and a remedy against, his immediate indorser. But it is said, that this immediate indor-ser may be insolvent; then I say it is the holder’s own fault,his own laches, or his own want of prudence: for by his attention to the circumstances of his immediate in-dorser, he may be always safe; and in the nature of things, the full and sufficient competency of his immedi-' ate indorser, ought to be the principal consideration of every indorsee, or holder: for with him he must have the transaction and the dealing. All the other parties may be absent or resident of another place, or even of another country and to him unknown; but with the immediate indorser he must come in contact of necessity, and has the same means of protecting himself, and guarding against the operation of future contingencies, that the parties to all other contracts have when there may be a defect to title. Placing the fair, the honest, the bond Jide holder’s case, in the worst possible point of view for him, I cannot see its imperious hardship to be such, as to controvert the general policy of the law. But place this indorsee or holder, in a less favorable point of view, as the fact oftentimes is, will the same reasoning apply? Suppose he has not given a single cent for the instrument, and has only lent his name as an accommodation indor-ser, and contributed thereby to the raising a structure,
But let us resume the better case for the indorsee* that the whole transaction, instead of being superficial* is wholly real, and that full consideration has passed between all the parties, only that usury exists in the first transaction, which was the consideration for the maker of the note, (the witness) to give the instrument; and let üs see, whether from the law, and the reason of the law operating on the interests of society, the indorsee’s situation has the stronger claims to the exclusion and concealment, or the situation of the party injured, to the development and' discovery of the usurious transaction.
As to the law — usury, or the taking interest of any kind, seems to have been deemed unlawful in early times. Lord Coke, in his 3 Inst. 152, says, “by the ancient law of this realm, usury was unlawful and punishable, although the punishment was not always one, but sometimes greater and sometimes lesser;” and he shows from the laws of King Alfred, that the chattels of usurers were forfeited to the king, and their lands escheated to the lord of the fee. And he points out the different alterations made therein by statute from the Norman Con
Now, what is its operation on society? In addition to the evidence of all ages,-if more could be required, we do not see from our own observation of the present times, that the immediate pressure of circumstances, acting on the distresses of the unfortunate or the unwary, raises the delusive hopes of avoiding the impending evil by a future sacrifice, which the very act he wishes, (the usury,) renders him unable to make, and that the interested assistance his wants and his necessities compelled him to court, proves his ruin; which, had it been withheld, might have heightened at the time his embarrassment, but would have eventuated far short of his ruin. But this is not all; the practice operates, not to the prejudice of the unfortunate principal alone — from the infiu
It seems, therefore, to me, lhat the greater interests of society require the development and exposure of an usurious case, rather than its concealment — that the mis-chiefs resulting from its practice to the unfortunate, tho’ willingparliceps, or rather victim crimmis, as he might be more properly called, are much greater, more injurious, and more certain in their operation, than on the innocent indorsee, whose loss can only in general be casual, and in all cases may be avoided by common prudence. And further, that this, its discovery, is more consonant to the principles of law; the injunctions of which ought to be respected, and its infractions detected and punished.
The injurious consequences that might result to society, from the enforcement of the rule, “that a party to a negotiable paper may be admitted to impeach it,” have been much dilated upon in the argument, and they have been represented so formidable thereby, as not only to be able to interpose a check, but to operate as a veto against the circulation of such paper. I cannot, for my part, see it in this light. In England, where this rule has prevailed e(ver since the year 1797, we find no such effects from it. We find not even a complaint against it. Is not this ample proof, that these hypothetical consequences, so warmly depicted at the bar, are purely imaginary, and never will be realized? Let it be remembered also, that England is a country highly commercial— that she has always been alive to her commercial interests — that towards them she has always manifested much feeling; they have always been the first objects of her care 5 and yet according to the argument, that this rule directly and immediately impugns her best interests, she has slept for twenty-three years without noticing it. It cannot be possible that the argument is well founded, or the con>
From these premises, I am fully satisfied, that the commercial interest of the country is in no wise endangered by the admissibility of John Stump to prove the note he had made was founded on an usurious consideration; or that the credit or currency of negotiable paper will be the least impaired, by saying that a party to such paper may, when not interested, impeach it; but on the other hand, its effects will be to add confidence and security to it.
The act of 1741, ch. 11, says, that all usurious contracts shall be utterly void — it must be void in the hands of an indorsee, as well as the original parties, or effect is pot given to the act; neither its letter or its spirit will be complied with, if the proof offered is excluded. The act
I shall now proceed to see whether this proof is admissible or not upon common law principles. At the outset of the enquiry, the cases of Walton vs. Shelly and Jordan vs. Lashbrook, primarily and naturally present themselves to our notice, not as authorities binding on this court, which no case in Westminster Hall since the revolution is, but as the respectable opinions of learned judges; men deeply versed in the laws of their country, and as existing evidence of what the common law was previous to the revolution, which, when applicable, is common to us with them.
Lord Mansfield, in the first of the above named cases says, the rule of law, founded on public policy, is, that no party who has signed a paper or deed, shall ever be permitted, by his testimony, to invalidate it; 1 T. Rep. 300, Next to the matter of this position, what attracts our attention the most is, the stating it to be a rule, when this is thefirst .mention of itin any case whatever. The manner of expression imports the previous existence of it, as a matter well known, and understood to be so by all interested in the knoweldge of such things. But when we look for it out of the bounds of that case, we are disappointed, and our search is in vain. It has been urged, that the admission of the bar in the case of Walton vs. Shelly, is the strongest evidence of the existence of the rule; on which I would observe, that another admission in Jordan vs. Lashbrook, operates as much the other way. Mr J us-tice Laurence, in his opinion in the latter case says, f‘Wallon and Shelly is undoubtedly a case of great authority, but it was admitted in the course of the argument, that no such determination is to be found earlier than that case; therefore it must depend upon its being supported by the general principles and rules of law applicable to the admissibility of witnesses.”
If in the space of twenty years, the assertion by Mr. Justice Laurence, that no such determination can be found earlier than Walton vs. Shelly, stands unrefuted,
Of like import with the case of Lowe vs. JolefFe, is the case of Pike vs. Badmerring, on a trial at bar in the time of Lord Chief Justice Pratt, where the three subscribing
The case of Rice vs. Oatfield, is another application of the same principle, upon different facts; there the lessor of the plaintiffproved that his father had renounced theer-rorsofthe church of Rome in 1716,and died in 1720, leaving him his heir; defendant inoppositionproved the father devised to him in 1720. Plaintiff then offered to prove that his father died a papist; the defendant objected to the evidence, arguing that the plaintiff would not be admitted to contradict his former evidence, but the judges received it, and upon error the judgment was affirmed; 2 Strange 1095.
So in the case in Lord Raymond 1008, it was ruled that a man who conveys land may be a witness to prove he had no title, because that is swearing against himself, but he is not compelled to give such evidence. Now no difference can be perceived between the case in Lord Raymond and the present case: — he who conveys land gives credit to his deed; if he had no title he hangs out false colors, and thereby deceives mankind, and when he proves he had no title, he gives evidence to invalidate the instrument he had executed. The strongest-foundation assigned, upon which to exclude the witness in this case, is placed by the case of Walton vs. Shelly, upon the maxim of the civil law,“JVemo allegans suam turpitude nem est audiendus.” But the application of this maxim to witnesses is unknown to the practice of the common law, as also to its reason and policy. That it may have an application to the parlies in a suit in some cases, Mr. Justice Gross admits, in his opinion in Jordan vs. Lash-brook; and this application of it Lord Mansfield himself has made elsewhere, where he has observed a man must come into court with clean hands, and he must draw his justice from the purest fountains. Let itbe admitted,then, that a plaintiff shall not be permitted to iound a right on an illegal consideration, or ground his claim upon a trans
The application of this maxim to witnesses is contrary to a sound principle of the common law, which is, that the exclusion of truth is always discountenanced upon all occasions; and courts endeavor as far as possible consistently with former decisions, to receive the testimony of witnesses, leaving it with the jury to consider how far it has been supported by other evidence, or from its own character may be entitled to credit; see Phillips on Ev. 35.
That it is contrary to the reason, policy and practice of the common law, is evidenced by the constant admission of accomplices in crimes to give testimony, the law permitting their testimony to go to the jury, to be weighed by them, and believed, or disbelieved according to circumstances: even a witness who by his own showing proves himself to have been guilty of perjury, will not be rejected; 11 East 310.
From all which it seems to me, that by no rule of evidence of the common law is this testimony excluded.— By the evidence of the common law, I mean our own precedents, practice and reports, and the English reports and other books usually considered the depositories of the common law before the revolution, making in all cases the necessary allowances for its applicability, and suitableness to our situation.
Cases from different States of the Union have been cited on the argument. Those from New York, Massachusetts and Pennsylvania show that a party to a nego-
In New-York, the decision was first carried in 1802, by a bare majority in a court of five Judges, Kent being in the minority. 3 John, cases 185. In Massachusetts, the rule was adopted soon after the decision in Walton vs. Shelly, as appears from 3 Mass. Rep. 28; and subsequent decisions conformed to it. In the case from 4 Mass. Rep. 160, Parsons Ch. J. in delivering the opinion Of the court, after reviewing all the English cases on the subject, notices a decision of his own court, made about twenty years before that time, and states that it had uniformly been adhered to: from all which it would rather seem to me, that if the question were to come before these courts at the present day, unshackled by former decisions, it would perhaps receive a different determination.
To this court the question is now presented tor the first time upon a negotiable paper, though we have decided it in substance at the last Knoxville term in the case of Willie’s lessee vs. Calloway,
Were there a general concurrence of decision in the other States, one way or the other, I should think it my duty to conform thereto, upon the principle of raising upa judicial system of unanimity upon common law questions among all the parts or members of one great whole, the Union. But as the expression of my opinion will not effect this object, which way soever it be given, I think it my duty to declare my own opinion, founded on common law principles, to the best of my judgment, and thereby contribute my mite to what I consider this general and uniform rule ought to be. Emmerson, Judge, concurred.
Judgment reversed,
Ante page 1.
The rule as laid down in Jordan vs. Lashbrook has been recognized and settled in Connecticut and North Carolina, Swift’s Ev. 96, 105. Townsend vs. Bush, 1 Connecticut Reports 260. Guy vs. Hale, 3 Murphy’s Rep. 150. But in New-York, Pennsylvania, South Carolina, Massachusetts, and New-Hampshire, the contrary rule as to negotiable instruments seems to prevail. Winter vs. Saidler, 3 John. Cases 185. Coleman vs. Wise, 2 John. Rep. 165. Skelding vs. Warren, 15 John. Rep. 270. Houghton vs. Page, 1 New-Hampshire Rep. 60. Warren vs. Merry, 3 Mass. Rep. 27, Churchwell vs. Sutor, 4 Mass. 156. Still vs. Lynch, 2 Dallas’ Rep. 194. Shaw vs. Wallace, 2 Yeates’ Rep. 17. Croft vs. Arthur, 3 Dessausure 223. Vide also B. U. States vs. Dunn, 6 Peters’ Rep. 51