Winkler v. Scudder , 1 Ga. 108 ( 1846 )

By the Court

Nisbet Judge.

Suit was brought in Chatham Superior Court, by Z. M. Winkler, the plaintiff' in error, against Amos Scudder, an endorser upon a promissory note. The plea af usury was filed, and Joseph R. Thompson, the maker, was called to prove it, and his testimony admitted. The first assignment of error is “ That a party to a negotiable note cannot be permitted to show that there was any invalidity in it when it passed out of his hands, and that, therefore, Thompson was improperly admitted.”

In England this question was settled before the statute of Victoria. Long before that act the rule as laid down by Lord Mansfield in Walton and Shelly was repudiated, and the rule as settled in Jordaine and Lashbrooke, by Lord Kenyon ; acquiesced in by the people, the profession and the courts. The history of this question in England is this : Lord Mansfield in Walton and Shelly in 1786, determined that a party to a negotiable security or instrument, could not be a witness to impeach its validity. This decision applied to all instruments without qualification or exception, and embraced all written contracts, deeds and wills, as well as negotiable securities. A few years afterwards in Bent and Baker, the rule received its first modification and was in that case limited by Lord Kenyon to negotiable paper. In 1798 in the case of Jordaine and Lashbrooke, the cases of Walton and Shelly and Bent and Baker, were overruled, and the rule established by them exploded. Since that time there has been in England no controversy about the matter. Both at common law and by statute, a party whose name appears to any instrument, is held competent to impeach its validity. So much for the authority of the rule as recognized in England. Let us now look into the sufficiency of the reasons upon which it is founded. All great questions ought to be settled in consonance with reason as well as authority. Authority is controlling only so far as it is sustained by principle. No questions concern the rights of the people more directly and intimately, in the administration of justice, than questions of evidence. In the language of Lord Kenyon, “ on the rules of evidence depend those facts which are introduced in every case and therefore it is of the utmost importance to preserve those rules.” Evidence is for the ascertainment of facts, and facts enforce or inhibit justice.

In Walton and Shelly Lord Mansfield placed the exclusion of the witness upon two grounds, to wit: public policy, and the maxim of the civil law, nemo alleyans suam turpitudinem, audiendus est.” “ But what strikes me, says this great lawyer, is the rule of law founded upon public policy, which I take to be this: that no party who has signed a paper, or deed, shall ever be permitted to give testimony to invalidate that instrument, which he has so signed, and there is a sound reason for it, because every man who is a party to an instrument gives a credit to it. It is of consequence to mankind that no person should hang out false colors to deceive them by first affixing his signature to a paper, and then afterwards giving “ testimony to invalidate it.” He illustrates his meaning by referring to a gaming note in the hands of a bona fide purchaser, without notice, and to a note given for a usurious consideration, in the hands of a fair endorsee. “ The public policy,” which he had in his mind, was the commercial policy of Great Britain, and particularly in reference to negotiable securities. This is manifest from the illustrations which he gives. Lord Mansfield is considered the father of the commercial law. And so magnificent a system is worthy its illustrious parentage. It required just such a mind, original, bold, and elaborately cultivated, to en-graft upon the British common law those principles which now constitute the body of the law merchant. The condition of Great Britain in his day required the improvements in this regard, which he made. They were necessary to sustain her rapidly growing trade and various commercial pursuits. She was then throwing off the restraints of Federalism, and multiplying the industrial pursuits of her people. She was then, in fact, a great commercial State. Lord Mansfield felt the impulse of the age and sustained it, by a long series of wise decisions. He had a zeal for the commercial policy of England, which seems to have pushed him occasionally into extremes. And the decision now under review is an illustration of it. The rule was impolitic in the judgment of British courts and lawyers, as is proven in its early repudiation. But admitting that public policy in England, at that day, made such a rule of evidence necessary, we deny that at this day, and in our country, it is necessary. If the rule established in Jordaine and Lashbrooke is sufficient for the commercial policy of England, it is of course sufficient for the commercial exigencies of Georgia. Although the mercantile interest here is great, our agricultural interests are paramount. Ours is an agricultural community. Negotiable securities are here under the law regulating bills of exchange and promissory notes, as well as the great interests represented by them, sufficiently protected, without the aid of Lord Mansfield’s rule of exclusion. They do not need the encouragement which that rule affords, and, therefore, the reason for it, founded in public policy, does not seem at this day and in this country to apply.

The exclusion of a party to a paper was designed to encourage commerce by discouraging Fraud. We concede that it is of consequence to mankind that no person should hang out false colors to deceive them. He who negotiates a note for value, knowing it to be invalid, without disclosing the fact, is guilty of a fraud upon his endorsee and upon mankind, as well as an act of heinous immorality. This cannot be questioned. Yet it may be questioned whether his exclusion has the tendency to discourage such fraudulent acts. Entrenched in legal forms, he is protectedfrom that public censure and indignation to which his own revelation of the facts would inevitably expose him. Such immunity is not likely to discourage fraud. It conceals and disguises fraud, by withholding the only witness who can develope it. The rule too operates injuriously upon parties defendants, who being entitled to certain defences by law, are yet unable to avail themselves of them by the exclusion of the only witness who may be cognizant of the facts upon which they rest. The rule further enables the party plaintiff holding an instrument, to perpetrate a fraud, by getting the only witness knowing of its invalidity, to put his name upon it, and thus silence him forever. The argument founded upon the discouragement of fraud, is equally balanced to say the least of it.

The objection founded on the maxim of the ’Roman Law, is not as we believe strong enough to exclude the witness — not so strong as to overrule those considerations of right and policy, before urged in favor of his competency. The spirit of the maxim “ nemo allegans, &c.,” seems rather to apply to parties than to witnesses. No one who comes into court alleging his own immorality, and on that account claiming a benefit, ought to be heard. A witness who is brought there, and speaks for the benefit of others, stands upon different grounds. Objections of this sort, founded in the want of character, lie to the credibility rather than to the competency of witnesses. The courts of justice in England led the way for the sweeping statute of Victoria. They were in advance of the Legislature, and were fast verging to the ground finally taken by Parliament. That is, to the admission of witnesses without regard to character ; having the weight of their testimony to be judged of by the jury.— Greenleaf, 452-3, Note; 2 Starkie on Evid., 9, 10 ; 2 Hale P. C., 280 ; 11 East 309 ; 5 M. & S. 244. In this country this waiver of all objections upon this ground to competency, would be safe. We might well trust almost any one to testify before the juries of our country. The modern practice is in accordance not only with the spirit of the age, but with the genius of our institutions. The maxim of the civil law, if it applies at all to the case before us, applies with greatly mitigated force. Here the borrower of money, in behalf of his own endorser is called to testify, to sustain a plea of usury. Laws against usury are conservative of public morality, and he is called to support them. The immorality of the borrower, who pays or contracts to pay, illegal interest, is nothing like so great as that of the lender who receives it. He is not strictly “ in'pari delicto.” Particularly when we consider that our statute against usury is not penal, but inhibitory.

Let us inquire now how this question stands in the United States. Here it is admitted, there has prevailed and in fact still prevails, much conflict of opinion and authority. The rule of Walton and Shelly seems at first to have been adopted in most of the States, and now prevails with modification in the Supreme Court. Several of those States, which first adopted the rule of exclusion, and among them the great commercial States of New York and Massachusetts, have gradually receded from it. And now, we have no hesitation in saying that the authority of the States is against that rule — whether considered in reference to numbers, the standing of the courts, or the learning of the judges. In Winton vs. Saidler, New York fully adopted the Walton and Shelly rule. — 3 Johns. Cas. 185; 14 Johns. Rep., 270. In 18 Johns. Rep., 167, the court takes the ground that “ the reason and policy of the rule was to protect bona fide holders. In Tuthillus. Davis, 20 Johns. 287, the endorser in a suit against the maker, was admitted to prove that the note sued on was given in discharge of others, tainted with usury. And here Walton and Shelly was abandoned. — See also 5 Cowen, 23; Ibid., 153; 3 Wend., 415. In Massachusetts the Walton and Shelly rule is confined to bona fide holders without notice. In the case of Fox et al. adms. vs. Whitney, 16 Mass., 118, the action was brought by the administrator of the payee of a note against the administrator of the maker. The plea of usury was filed and. the security on the note called to prove it and admitted. Parker, C. J. said: “ The rule by which parties to notes are excluded from being witnesses, to discredit the security to which they have given currency, does not apply to the case before us. Such witnesses are excluded upon the ground of policy, because in fact their testimony goes to contradict their own acts. It applies only to negotiable securities.” The Chief Justice proceeds to say, that it is applicable only to innocent holders of negotiable securities. In Massachusetts, therefore, as between the original parties, the rule of admission obtains. It was so adjudged in the case last referred to in a stale of facts precisely similar to the state of the facts in the case at bar. It may be remarked here that in very few, if any of the States, does the excluding rule apply in its original extent. Where it obtains at all, and to this extent it does obtain in many of the States, it is confined to negotiable paper in the hands of bona fide holders without notice. For the history of this question in Massachusetts, see 4 Mass. R. 162 ; 7 Ibid., 199 ; 11 Ibid., 375, 498 ; 16 Mass. 118 ; 3 Pick. 184; 10 Mass. 560 ; 12 Rick. 565.

The doctrine, as held in Jordaine and Lashbrooke is enforced in Virginia, 3 Randolph, 316. In Connecticut, 1 Conn. 260. In South Carolina, 3 McCord, 71. In Tennessee, 2 Yerger, 35. In Maryland, 3 H. and J. 172. In New Jersey, 2 Harrison, 192. In North Carolina, 3 Murphy, 151. In Alabama, 1 Stew. 199; 9 Porter, 226. In Kentucky, 3 Little, 221. The rule of Walton and Shelly limited to negotiable securities, in the hands of bona fide holders without notice, is held in the Supreme Court of tho United States. — 6 Peters, 51, 57; 8 Peters, 12; 11 Peters, 86, 94, 95 ; 12 Peters, 149. In Massaqhusetts as before explained. In New Hampshire, 2 N. Hamp. R., 212. In Maine, 4 Greenleaf, 191 ; 5 Greenleaf, 374. In Pennsylvania, 6 Watts, 498 ; 8 Watts, 304. In Mississippi, Walk., 541. In Louisiana it is supposed that the rule is unsettled ; so in Vermont; so in Illinois ; so in Ohio.

Tho authority of Walton and Shelly was considered by the judges of our own State in the case of Slack vs. Moss, many years ago, at a time when the circuit benches were occupied by men whose integrity and learning have not been questioned ; and at the head of whom was the late eminent Judge Crawford. They rejected the authority of that case, and it is believed that the courts of Georgia have very generally acquiesced in their decision. — Dudley, 161.

The authority of the Supreme Court has been invoked in behalf of ills plaintiff in error, with great strength of reasoning and eloquence. It is claimed that the Supreme Court is the highest and most authoritative tribunal known to our Union, and that its decisions form an elevated rallying point for the courts of the States. That with a view to uniformity ami harmony, it is better for this court to conform to its decisions, than to abide by the authority of other courts, however imposing in their organization, or distinguished by their learning. We promptly and cheerfully admit the commanding character of our great national tribunal — the ability of its judges and the desirableness of harmony between it and tho State courts. One answer to these views is to our minds conclusive, and that is — the decisions of the Supreme Court are not the law of this court — the common law as it stood in May, 1776, is. To this branch of the argument we shall again advert. Aside from this fact, the decisions of the Supreme Court upon this subject, come to us as naked adjudications — without reasoning — without any attempt at a collating and balancing of authorities. They seem to be rather in character of dicta, than solemn judgments. Their authority is that of the court, and not of argument or learning.

The court, seems, in no instance, to have been desirous of settling this vexed question by authority or reason; but to have been content with the annunciation of its own opinion, the meagerness of these decisions, must strike the most careless reader. This is the more remarkable, since at the time of giving them, a contrary doctrine prevailed in England, and in many of the American States. We pretend not to account lor the fact. We only know that such is the fact.

Now the authority of the Supreme Court is, in this court, the moral power of reason and the weight of legal learning. Upon this question it is not commended to us by either, and must yield to other considerations, which we esteem as conclusive upon us. Besides we do not know how long that court will hold to its present opinions — it may recode from them, as it has receded from the doctrine first ruled in the case of the Bank of the United States vs. Dunn, in 6 Pet. 51. The court adopt there tho doctrine of Walton and Shelly, in these brief words, “ But it is a well-settled principle, that no man who is a party to a negotiable note, shall bo permitted, by his own testimony, to invalidate it. Having given it the sanction of his name, and thereby added to the value of the instrument by giving it currency, he shall not be permitted to testify that the note was. given for a gambling consideration, or under other circumstances which would destroy its validity. This doctrine is clearly laid down in Walton vs. Shelly, reported in 1 T. Rep. 296, and is. still held to be law, although in 7 T. Rep. 56, it is decided, that in any action for usury, the borrower of the money is a competent witness to- prove-the whole case.” Now it is very remarkable that the court should declare that it is- a well-settled principle, &c., when, so far from the principle being settled in England, it had been overruled by Lord Kenyon in Jordaine and Lashbrooke, and was not, at the time, the law of the British courts ; nor was the principle a settled one, by any means, Sn the United States.

The court, in 11 Peter:s, 94-5, more explicitly limit the rule to negotiable instruments, and put it upon, the ground “ of the currency given to them by the name of the witness called to impeach their validity.” The authority, therefore, of the Supreme Court does not extend to the exclusion of the witness in a case .like that we are now determining, between the original parties. For here the lender is suing the endorser upon a note which he had discounted, and which had never been in circulation.

By what is called our adopting statute, passed in February, 1784, the common law of England and such of the statute laws as viere usually of force in the province of Georgia, on the 14th day of May, 1776, are declared to be in full force, virtue, and effect, and binding on the inhabitants, of the State, so far as they are not contrary to the Constitution, laws and form of government of the State. — Hotchkiss, 93. This statute makes, the common law of England obligatory upon this court. The obligations of office, and the oath of office, require us to enforce it as it stood in 1776. If, before that period, the rule of evidence was that all sane persons were competent to testify, unless excluded by interest, or conviction of an infamous offence ; if interest and infamy were the only exceptions to, the general rule known- in 1776 ; we do not perceive that we have any discretion in the matter. We are bound absolutely to administer the common law as it was then usually of force.

The case of Walton and Shelíy was some ten years- after the 14th of May, 1776. It is contended however, that the rule of Walton and Shelly was the law before its enforcement in that case by Lord Mansfield. We think not; but believe that it created an additional exception to the general rule. In Jordaine and Lashbrooke, Lord Kenyon says : “ I have always understood the rule to be, that where a witness is infamous and his record of conviction is produced, or where he is interested in the event of the cause, he cannot be received ; but to carry the rule beyond that, would be extending it further than policy, morality, or the interest of the public require.” His attention was particularly called to the rule of Walton and Shelly, in consequence of his having been reported in Bent and Baker, as sustaining it. That report he disclaims, and says expressly that he has not been enabled to find any case before that of Walton and Shelly, excluding the witness, and that “ he cannot bring his mind to accede'to the authority of that case.” Now, here i-s the authority of Lord Kenyon, as to what was the common law, before the case of Walton anji Shelly. It was said in the argument that the case of Jordaine and Lashbrooke was determined upon principles growing out of the revenue laws cf Great Britain. The case of Jordaine and Lashbrooke was founded on a bill of exchange, on its face purporting to be drawn at Hamburg. By statute, all bills drawn within the realm, of certain amounts, were liable to certain stamp duties, and bills drawn upon other than stamp paper were declared void. The witness was called to prove that the bill purporting to be drawn at Hamburg, was in fact drawn in England, and void by statute for want of a stamp. The bill as offered in evidence was a fraud upon the revenue laws of England, and it is true, that several of the justices laid great stress upon this fact, but Kenyon, the master mind of that court, scarcely adverted at all to that view of the subject. He rested upon the common law rales of evidence, and his associates, except one, sustained him upon those rales. Groce, Justice in this case, declares, “Before the case of Walton and Shelly, Í never read of this ground of incompetency.” It is very clear that the question in Jordaineand Lashbrooke, received a most able and careful review ; and we must believe that if anything is settled by that ease, it is, that Walton and Shelly is an innovation upon the common law, as it stood at the time. To this conclusion the judges came in Slack and Moss. We are therefore of opinion, upon any view of the question, that the witness in the court below was properly admitted.

The second assignment of error assumes that from the face of the note, the plaintiff being an endorser, is an innocent holder ; and limiting the rule in Walton and Shelly to negotiable securities, in the hands of an innocent holder, Thompson, the maker, ought not to have been admitted until by other testimony it was made to appear that plaintiff is not an innocent holder. If the witness is competent at all, he is as much competent to prove the circumstances under which the note was negotiated, and how the plaintiff became connected with it, as he is to prove the usurious consideration. For this purpose he is called. If the rule of Walton and Shelly, as modified in New York, governs this case, then indeed, upon the hypothesis that the plaintiff is an innocent holder, the witness would be excluded. But how shall it appear that the plaintiff is an innocent endorsee, a bona fide holder without notice. It does not necessarily appear from the face of the paper. The witness is called to testify as to this fact, and the question recurs, is he competent. It is a question of competency still. The view taken in the assignment supposes the defendant able to prove by others what he calls the maker to prove, and if so why call him at all. This is begging the question. If indeed it should be conceded that a parly to a note cannot be permitted to impeach its validity in the hands of an innocent holder, still no injury could in practice result from the examination of the witness as to the circumstances under which the plaintiff came into possession of the note, for if it should appear from that examination that he was an innocent holder, the whole of the testimony could be withdrawn from the jury. Thai in every case the question is one in the very outset of competency, is demonstrated from the character of those reasons which Lord Mansfield gave for excluding the witness. These reasons are drawn from the fact that his name appears on the instrument. They show the impolicy and immorality of a party whose name so appears testifying at all. Lord Mansfield was called to pass upon the competency of the witness from the face of the instrument, and so are we. With great respect for the learned counsel for plaintiff in error, we are compelled to believe that this second assignment is but a different form of the first.

The third assignment asserts “that, admitting the competency of Thompson, yet the facts stated by him did not coincide with the statements of the plea of usury, and that as the allegata and frobata did not agree, his testimony should not have been permitted to go to the jury. To understand the force of this exception, and the answer we shall make to it, it becomes necessary to state, that the plea of usury filed by the defendant was confessedly too vague and general, and particularly defective in two particulars : First, the original amount of the loan was not stated, and second, the time at which the money was borrowed was not stated. There was no demurrer to the plea on these accounts, no demurrer on any account, the defendant replying to the plea and joining issue upon it before the jury. The testimony was, among other things, that the note sued on was given for the interest reserved. It was argued that the testimony ought to have been withheld because the plea did not comply with our act of ’99, in plainly, fully and distinctly setting forth the defendant’s cause of defence, and if it did there was a variance between the plea and the proof. We think the plea did not fully comply with the requirements of the statute.

This court in the case of Johnson et al. vs. Ballingall, ante p. 68, determined in May last, at Milledgeville, that our statute requires so plain, full, and distinct a statement of the grounds of defence, as to put the plaintiff accurately into possession of all the grounds relied upon. We think that our statute was intended to do two things. First it abolishes the technical pleading of the English practice ; and second, it inhibits the proof of any special defence under the general issue. Whilst it does not require either the form or particularity of the British courts, yet it does require a clear, full and true statement in reciting the grounds of defence. It is impossible to lay down a general rule, by which the sufficiency of the plea can, in every case, be determined. Each plea must be determined according to its character and the circumstances of the case. All material facts ought to be set forth in all: particularly in pleas of usury. The amount of the original loan and the time when it was negotiated, are material facts. Material because, without these it would be impossible to ascertain the amount of usurious interest received or paid. We are therefore very clear that the plea in this case was not full enough. It was the right of the plaintiff to demur to the plea for a want of fullness and distinctness ; and having failed to do so, having joined issue upon it before the jury, he is too late in his exceptions. Had he demurred, either the plea would have been stricken out altogether, or the defendant would have been driven to amend. But it was insisted in the argument that, under our practice, established under the Act of 1799, there is no such thing as demurrers at law. We think differently. We do not demur, it is true, formally, and in writing, nor is the judgment upon the demurrer formally pronounced, and entered, as in England; we demur orally, and the effect of the demurrer, if sustained, is that the plaintiff’s writ or defendant’s plea be dismissed, unless in cases where either is amendable.

Nor do we think that-the common law rule of variance, as applicable to the plaintiff’s allegations and proof, applies here to defensive pleadings. The plaintiff is protected in his right to have a sufficient plea in his privilege of demurrer. If he consents to go to the jury on the plea, the jury must determine as to the applicability of the evidence to the plea. We cannot, therefore, sustain this exception.

The last exception is in these words, “ That there was no evidence that any part of the principal of said note had been paid, and therefore, under any circumstances, the plaintiff was entitled to a verdict therefor ; and that the court below erred in refusing so to instruct the jury, and in leaving the question to them.” Upon the trial, the record shows, that the amount of the loan was proven, and also the amount of interest which had accumulated, both lawful and usurious. The jury in their verdict credited the plaintiff’s demand with the interest, and found the balance for him. The ground assumed in this exception, if we correctly understand it, depends upon a construction of our statute of 1822. We do not know that the jury believed, from the evidence, that no part of the principal was paid ; but suppose they did; then the argument is as follows: — viz. The payments made upon this contract were in extinguishment of the interest: the Act of 1822 does not make the contract void, but only inhibits the collection of anything but the principal; it only denies to the plaintiff a process to collect the interest. The interest in this case being voluntarily paid, the defendant could not maintain his action against the plaintiff for money had and received, and therefore is not entitled to have a credit for The interest when the action is against him on the contract. We confess that this construction of the Act of ’22 is exceedingly plausible, and it was not without difficulty that we arrived at the conclusion to give to it a different construction. Wo think, however, that a just construction of the Act, making all usurious contracts, established to be such in a court of law, void as to the lawful interest and the usurious interest. When a party comes into a court of justice to enforce a usurious contract, the Act visits upon him a forfeiture of the interest, which upon other contracts it allows him to recover: in other words his principal bears no interest. And as we must infer that the jury in this case, believed that the sum which remained due was made up of principal and interest, they did right in abating the lawful interest. As to the excess, thinking as we do that the contract was void as to that, the plaintiff has recovered it contrary to law and good conscience, and an action would lie for the defendant to recover it back; and if so, he can recover it in this action, in the form of a credit, found by the verdict of the jury, upon the plaintiff’s demand sought to be enforced against him. So the judgment of the court below must be affirmed upon all the exceptions taken. .