Union Bank v. Jones

4 La. Ann. 220 | La. | 1849

Tho judgment of the court (Rustís, C. J. not sitting, being a stockholder jn the bank,) was pronounced by

Siidell, J.

The first point to bo considered Í3 tho admissibility of tho testimony of Mintcr, tho drawer of tho noto, of which.Jbj¡.es was tho accommodation endorser. Since tho trial of the former suit upon .-the same cause of -action, Minter died, and the dofondaat offered, in the present suit, his testimony, as a witness for tho defendant, taken in-writing at the former trial. To the admission of this testimony the plaintiffs objected, upon tho ground that it was given by a person having, at the timo lie gave it, an interest iu tho event of tho suit, against the plaintiffs. The court permitted tho testimony to be road to tho jury, and the plaintiffs took a bill of exceptions.

The testimony of a deceased witness thus offered, is said by an author of great respectability, to bo open to all tho objections which might bo taken if tho witness was personally present. Soe Greenloaf on Evidence, § 163. In Wright v. Tatham, 1 Adolphus & Ellis, 24, Tindal, C. J., in considering the character and degree of such eyidcnco and for cwhat purposes it can be produced, observes, that it is direct and immodiato ovidonco in tlie cause, for the same purpose and to the same extent as if the witness had been alive and sworn, and had given the same evidence in the witness box in the second cause. A very stroug illustration of the rule, as laid down by Greeuleaf, is presented in the case of Crary v. Sprague, 12 Wendell, 44. It was there held that a plaintiff, on tho second trial of a cause, cannot give proof of tho testimony of a deceased witness, who, on the former trial, was called by the defendant, and on his cross-examination gave evidence beneficial to tho plaintiff, where the defendant showed that such witness, at the time of testifying," was interested in the event of the cause on tlie side of -the plaintiff. It had been urged in argument that the defendant, by introducing the witness on tho ormor trial, had declared his competency and credibility, and thereby precluded himself from questioning either. In answering the position the court remarked that this was undoubtedly true, so far as that trial was concerned, but no further; citing 1 Phil. Evid. 213.

"When tho former action was on trial, and JMBnler was offered, the plaintiffs .objected to his testimony upon tho ground, “that said witness, being the drawer of the note iu question, -was incompetent to testify for title indorser, in a contest between the latter and the holder of tjie noto,” which objection tho court overruled, and admitted the witness. It is now urged by tlie defendant that the objection did not point specifically to the true and tenable ground of objection, to wit, that Jones was Minter’s accommodation endorser; that if tho specific objection had been presented, tho dofaqdant would have cured it by a release, which now, by the death of tho witness, has become impossible. But if the implied declaration of a witness’ competency upon a former trial would not, as we havo just seen, preclude tho enquiry on a second trial, a fortiori a positivo resistanca to the competency of the witness upon mistaken or vaguely stated grounds’ ought not to work such an effect. Moreover the fact that tho defendant has once had the benefit of the testimony of mi interested witness, seems a vary unsatisfactory reason why it should be repeated. The object of evidence is the discovery of truth, and tho reason why an interested witness is excluded is the fear that he would disguise rind pervert ibo truth to promote his own advantage, and so lead the court or jury to a wrong conclusion. Such witnesses are excluded, not because they may net at metimos state the tiutli, but because in geneial it would be unsafe to rely upon ¡heir testimony. It is true that, if tho specific objection had been made, and had been sustained by the court, tho defendant might have executed a release in Mhiter’s favor. But to make this argument effectual we should be obliged to presumo that the defendant would have chosen to run the risk of that sacrifico bolero the testimony was hoard and ascertained. Besides the defendant was bound to know the law. Pie, therefore, knew that Mintcr had an interest in favor of his success; and instead of removing it by a release before putting the witness on the stand, took the chance of benefit from that feeling of interest in the witness’ mind, which, as was said by a learned judge, will, in spite of tho utmost efforts of the most conscientious man, so often warp his memory, as to prevent him giving nu accurate account of a transaction. Of course we make these remarks as matters of legal argument and principle, without intending in any wise to reflect upon tho motives of the party in this particular case, or tho character of tho deceased.

We are of opinion, therefore, that tho objection to the competency of Minter was still open.

With regard to his incompetoncy we refer to what we said in the case between the same parties, 2 An. 345.

We consider the certificate of the notary as satisfactorily proving that notice of protest was seasonably given to the endorser. Although the notary does not expressly state on what day he delivered tho notice to the defendant’s wife, yet, as he states the fact of such delivery as a thing already dono, and his certificate bears date on the 27th October, it follows that the notice was not given at a later date. Consequently it was seasonable.

A witness was offered by tho defendant to show that the notary was careless in completing his records on tho day of protest or giving notice, and mentions two instances, neither of which include tho record in question. Even if this testimony was admissible, it certainly could not destroy or impair the official record op this particular transaction. But, in our opinion, the objection was well taken, that the defendant should be limited to testimony of facts immediately relating to the record in question. p

Upon this question of presentment for payment, this case is not distinguishable from that of tiro Union Bank v. Morgan, 2 Annual, 418.

Under ordinary circumstances we usually remand a cause when material evidence offered by the defendant has been received by the court below, and we dissent as to its admissibility. This is done upon the consideration that the party may have had other evidence to support his defence which ho thought it was unnecessary to offer, evidence to tho like effect, being already accepted by the court. But, in this present, caso, the defendant was warned by the previous decision (2 An. 346,) that Miniar was an incompetent witness; that his testimony, even if unobjected to, was not entitled to the same confidence as the testimony of a disinterested witness ; and that, in itself, it was defective with regard to tho matters plosded in defence. Wo must conclude that this defendant has produced at: the second trial all tlie testimony which could be brought to bear upon the de-” fence, and to remand tho cause would only delay the plaintiff, without conducing to tlio ends of justice.

It is, therefore, decreed that the judgment be reversed, and that the plaintiffs recover of the defendant the sum of 51*290, with interest thereon at the rate of seven per cent per annum, from the 29th day of October, 1*842, until paid, and costs in both courts.