de Lizardi v. Cohen , 3 Gill 430 ( 1845 )

Martin, J.,

delivered the opinion of this court.

It appears in this case, that a writ of attachment was sued out of Baltimore county court by the appellees, on the 27th March 1837, against the lands, tenements, goods and chattels, rights and credits, of J. L., and S. Joseph Co., which was returned at the succeeding May term of the court, “attached as per schedule.” At the September term of the same year, the sheriff, with leave of the court, amended his return, so as to include in the property attached, fifteen hundred shares of the stock of the American Life Insurance and Trust Company.

During the pendency of this attachment, at the January term 1.838, the appellants interposed a claim and plea, to a thousand shares of the stock, alleging, that they were not the property of Joseph Sf Co. At the September term 1838, the appellees, as plaintiffs, filed a replication to the ábove mentioned claim and plea, on which issue was joined.

At the trial, the appellants, for the purpose of maintaining their title to the stock, offered as a witness Solomon J. Joseph, one of the defendants in the attachment suit, of Cohen and others, against Joseph and others, before referred to, and. accompanied the offer with a copy of his discharge, under the bankrupt law of the United States, dated the 6th December 1842, certified by the clerk, under the seal of the district court of the United Stales, for the southern district of New York. This discharge, although not authenticated as required by the act of Congress, prescribing the mode in which instruments of this kind are to be proved, was admitted without objection, and is, therefore, to be considered as properly in the cause.

■ In this posture of the case, the counsel for the appellees objected to the examination of Joseph, as an illegal and incompetent witness. The objection was sustained, and the witness excluded. And the single proposition presented for our determination, is, that which respects the correctness of the opinion thus pronounced by the court below, on this question of evidence.

It was not pretended, that Solomon J. Joseph was responsible for the costs of this suit. It appears from the record, that they were adjudged to be paid by the appellants. But the competency of this person, as a witness, was disputed on two grounds:

First. Because he was directly interested in maintaining, by his testimony, the title of the appellants to the stock in controversy ; and

Secondly. That as this contest, between the appellants and appellees, was merely collateral to the attachment suit, Joseph was to be regarded as a party to the record, in the technical sense of that term, and being so, he was properly excluded from testifying on the objection in the abstract, that he was a party to the record, irrespective of the question of his responsibility for the costs, or his interest in the object of the suit.

We have seen that the discharge of Joseph, under the bankrupt law of the United States, though imperfectly authenticated, was to be treated as in evidence in the cause, and by adverting to the motion made by the appellants, for the purpose of quashing the attachment, it will be perceived, that the debt, for the payment of which this stock was hypothecated, was created by bills of exchange, drawn by the Joseph’s Sp Co., in New York, in favor of various persons, on Lizardi & Company, trading in London, and there accepted and paid.

Under such circumstances, the counsel for the appellees contended, that while the debt of the appellees was extinguished by the discharge of Joseph, under the bankrupt law, that of the appellants being a London contract, and not reached by the discharge, was not extinguished; and that he was, therefore, directly interested in supporting the claim of the appellants.

But, an insuperable answer to this view of the question, is, that looking alone, as this court is obliged to do, to the facts disclosed by the bill of exception, it does not appear that there was any debt due from Joseph to Lizardi & Company. And this being the position of the case, it is clear, that the witness, in upholding, by his testimony, the title of the appellants to the stock in dispute, would testify against his own interest. So far, then, as the question of interest was concerned, the witness was, in our opinion, clearly admissible.

The counsel for the appellees have, however, contended, that assuming that Joseph was neither responsible for the costs of this suit, or interested in maintaining, by his testimony, the title of the appellants to the stock claimed by them, yet being a party to the record, he was for this reason incompetent.

As it appears, that when the appellants proposed to swear Solomon J. Joseph, as a witness, he interposed no objection to his examination, and did not place himself, as he might have done, on his privilege of exemption as a party to the record, we must presume, that he was willing to testify; and this being assumed, and it having been established, that he was not liable for the costs of the suit, and that so far from being interested in sustaining the cause of the party by whom he was called, that his interest -was to be found on the other side, we think, even if he was to be regarded as a party to the record, a proposition we do not consider it necessary to decide, that fact did not disqualify him from being a witness.

It is certainly true as a general rule, that a party to the record, is not a competent witness, for he is generally either interested in the object of the suit, or responsible for costs.

In the case of Owings against Wright and Kent, decided at the present term, this general proposition is announced. The court say:—“The general rule is, that a party to the record, cannot be examined as a witness.”

In the case of Willings and Francis, against Consequa, Pet. C. C. R., 307, Judge Washington, when speaking of an objection like this, to the competency of a witness, says: “The general rule of law certainly is, that a party to a suit, cannot be a witness. But it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule, and when that interest is removed, the objection ceases to exist.” It is manifest from the language of the Supreme Court, in De Wolf against Johnson, 10 Wheat., 334, drat they considered that the responsibility to which a party to the record is generally exposed in respect to the costs, if he had no interest in the event of the suit, was the reason why he could not be examined as a witness. The court say, in referring to the deposition of Prentiss:—“He may have had little orno interest in the event of the suit, except as to the costs; but still, while a party to the record, he could not be examined.”

It will be seen, from an examination of die cases, that the form in which this rule of exclusion has been stated by the courts, presupposes that it is subject to exceptions. And when it appears, that the party proposed to be examined, is not responsible for the costs of the suit, and has no interest in the subject in dispute, and is willing to be sworn, he is not within the operation of. the general rule.

The true and sound doctrine upon this subject, is to be found in the opinion delivered by Chief Justice Tindall, in the case of Worrell against Jones, 7 Bing. R., 395.

He says, “that at the trial of this issue, the plaintiff proposed to call Edward Jones as a witness, to prove the continuance of the ancient tenancy. No objection could arise, on the ground that Edward Jones was interested to procure a verdict for the plaintiff, who called him. The witness did not, himself, object to be examined; but an objection was made on the part of William Baker, the defendant, who had pleaded; and the question reserved for our consideration, is, whether a defendant who has suffered judgment by default, and who consents to be examined, is an admissible witness, where he has no interest in the event of the suit; and the only objection to his admissibility is this—that he is a party upon the record? And upon this question, we are of opinion, that the evidence was admissible. No case has been cited, nor can any case be found, in which a witness has been refused, upon the objection in the abstract, that he was a party to the suit; on the contrary, many have been brought forward, in which parties to the suit, who have suffered judgment by default, have been admitted as witness against their own interest; and the only enquiry seems to have been, in a majority of the cases, whether the party called was interested in the event or not; and the admission or rejection of the witness, has depended on the result of this enquiry. The exclusion on the ground of interest, is a known principle of the law of evidence; and so much did Lord Chief Baron Gilbert consider this as the only solid objection against the evidence of a party to the suit, that, after laying it down as a genera] rule, that no man interested in the matter in question, can be a witness for himself, he states, that several corollaries maybe deduced from this rule; of which he gives as the first: that a plaintiff or defendant cannot be a witness in his own cause; for these are the persons who have a most immediate interest, and it is not to be presumed, that a man who complains without cause, or defends without justice, would have honesty enough to confess it. That a party to the record should not be compelled against his consent, to become a witness in a court of law, is a rule founded in good sense, and sound policy; it forms the point of the decision, in the case of the King against Woodburn, 10 East., 395, and the decision of that case leads to the necessary inference, that if the party consents to be examined, he is then an admissible witness.”

In the case of the City Bank of Baltimore against Bateman, 7 H. & J., 109, the Court of Appeals say:—“That the admissions of a party on the record, are always evidence against himself, because, being a party, he cannot be compelled to give evidence against his interest in a court of law.” Leading necessarily to the inference, that if he is called to testify against his interest, and consents to be examined, he is a competent witness.

The same doctrine is held by the court, in the case of Lamp-ton against Lampton, 6 T. B. Monroe, 617; and in Steele against the Phoenix Insurance Company, 3 Binnney, 312, Chief Justice Tilghman, when examining this subject, says : “The reason of the law, is the life of the law. Now what good reason is there, why a man’s testimony should be excluded, merely because his name is placed on the record, as a party to a suit in which he has no manner of interest.”

We think, both upon principle, and on authority, that the party proposed to be called by the appellants, was a legal and competent witness, and that the court below erred in excluding him.

We have already said, that the motion made by the appellants to quash the attachment, discloses the facts, that the debt, for the payment of which this stock was pledged, was created by a bill of exchange drawn in New York, by J. L. and S. Joseph & Co., in favor of various persons, on the appellants, trading in London, and there accepted, and paid by them;— and as this case is to be returned on a procedendo, it is proper for the court to declare, what influence these facts, if they had been proved by the appellees, and incorporated into the bill of exception, would have had on the question of the competency of the witness.

It was contended by the counsel for the appellants, that as this bill of exchange was drawn in New York, it was to be regarded as a New York contract, and therefore covered by the discharge of Joseph, under the bankrupt law of the United States.

But to this proposition we cannot accede. On the contrary, we think it an established principle, that as this bill of exchange was accepted in London, and there paid by the appellants, London is to be considered as the place of the contract.

In the case of Lewis against Owen, 4 B. & Al., 653, .a rule was laid to shew cause why an exoneretur should not be entered on the bail piece, the defendant having obtained his certificate under a commission of bankruptcy in Ireland. It appeared from the affidavits, that the debt for which the action was brought, arose from the plaintiffs, while residing in England, accepting and paying bills of exchange, drawn upon them by the defendant, while residing in Ireland, for his accommodation.

The court said, the debt must be considered to have arisen where the money was paid; and that a certificate under a commission of bankruptcy in Ireland, could not discharge a debt contracted in England. The same doctrine is established by the case of Burrows against Jemimo, 2 Stra. 73. Story Conf. Law, Sec. 274. Chitty on Bills, 736. Story on Bills, 163.

Treating London, then, as the place of the contact, it is clear, and indeed was not disputed, that the debt thus created, could not be reached and extinguished by the discharge of Joseph, under the bankrupt law of the United States. No principle of international law is more firmly settled, than that a discharge of this character can have no extra-territorial operation. The late Judge Story, in his able commentaries on the conflict of laws, speaks of the doctrine as well established:—that the discharge of a contract, by the law of a place where the contract was not made, or to be performed, will not be a discharge in any other country. Conf. L., Sec. 283. Smith vs. Buchanan, 1 East., 11. Lewis vs. Owen, 4 B. & A., 654.

It follows from the views thus expressed, that if these facts had been proved at the trial, and made a part of the exception, the position of the witness must have been materially altered. Under such circumstances, while his discharge under the bankrupt law, would have operated upon, and extinguished the debt of the appellees, it would have have left unaffected that of the appellants, and he would have been directly interested in maintaining by his testimony, the claim and title of the appellants, and therefore inadmissible.

In the form in which the case is now presented to us, we reverse the judgment of the court below, with costs, and order a procedendo.

JUDGMENT REVERSED AND PROCEDENDO ORDERED.