Baker v. Arnold , 3 Cai. Cas. 279 ( 1805 )

Thompson, T.

The misdirection complained of, so far ' r , , , , , , . as I have been able to understand it, irom the points made in the case, or from the argument of the counsel, is, that the indorsement upon the note, and the certificate of May, l^g/, which both speak a language, directly contradicting the testimony of Roswell Lombard, were submitted to the jury as facts, in any measure, impeaching the veracity of Lombard, or the correctness of his memory. This objection appears to me altogether unfounded. It was deemed all-important to the defendants, and the turning point in the cause, to ascertain the time when the indorsement was made, whether before or after the note became payable. l.ombard, the indorsor, swore he made it after the note fell due, though it purported to have been made before. It was admitted by the witness himself, that the indorsement was not in blank; that it was filled up when he signed his name; and from inspection, I think it .is pretty evident, that the whole indorsement is his hand-writing. Here then, we have his oath one way, and his declaration in writing, the other; and it would be a little extraordinary, if a jury were not permitted to contrast the two, in order to determine which was correct. Had the indorsement been in blank, it might have altered the complexion of the case. Is it not every day’s practice, to give in evidence, decla-tions made by witnesses, at other times, inconsistent with their testimony, in order to impeach their credit? Aman is bound to tell the truth at all times, whether under oath or not; and Ishould hardly suppose,that because the story was committed to writing, it would excuse the falsehood; and if not, it was certainly a circumstance operating against the credit of Lombard. If it was not true that he made the indorsement, when it purports to have been made, his motives must have been fraudulent, and the indorsement antedated, for the purpose of precluding the defendants from a just defence. If a man, coming into a court of justice, and thus testifying the facts, which expose his own turpitude, does not render himself suspicious, I am at a loss to say what would. His oath stands directly contradicted by his .own acknowledgment in writing, in another particular. He swears positively and unequivocally, that he never knew or heard that the note was in the hands of the plaintiffs, or that they had any interest m it, or contemplated purchasing it, until after it became due; whereas, he certifies, as early as May, in the year, 1797,that Hit, to whom he had sold the note, had written him a letter, informing him that he, Holt, had sold it to the plaintiffs, and requesting him, the witness, to indorse it to them. These are circumstances, in my judgment, tending strongly to impeach the credit of Lombard. But it was peculiarly within the province of the jury to determine the credit due to him_ which they have done by their verdict. If Lombard was unworthy of credit, the verdict cannot be said to be either against law or evidence. It is admitted, that if the indorsement was made when it purports to have been, the consideration could not be impeached. My opinion, therefore,, is, that the motion ought to be denied.

LivingstoN, J.

I am neither dissatisfied with the judge’s charge, nor with the jury.

The first was such as the testimony called for, and so far from thinking the verdict wrong, I should not, if on the jury, have consented to any other. It is probable, they disbelieved, as they had a right to do, every word Lombard said. His conduct, throughout this transaction, discovers him to be a crafty, designing man. Although he sold the note as early as in May, 1797, yet, when he discovers he had omitted to indorse it, he makes a thousand difficulties, with a view, no doubt, of extorting a further consideration. At length he puts his name on it, and immediately after sets about defeating a title derived from himself. This is not all. He swears positively to his ignorance “ of the note’s being in the plaintiffs’ hand, or that “ they had any interest in it, or comtemplaied its purchase ‘‘until June, 1799.” And yet two years before, he had written a letter, which is part of the case, informing the defendants “ that Holt, to whom he had sold the note, is had transferred it to the plaintiffs, and wished him to “ indorse it.” Such a wilful departure from truth in otic particular, for it could not have been a mistake, warranted the jury in discrediting every other part of his testimony. R is impossible that a man who pretends to so perfect a recollection of the most minute and immaterial circumstances, and that after a lapse of several years, should have forgotten so important a fact; one too, which he had communicated in writing to the defendants.

But were this a verdict against evidence, it ought not to be disturbed, because the merits are most clearly with the plaintiffs, and the defence is of the most unconscientious kind. The plaintiffs are innocent holders of this note.— They obtain it near two years before it falls due, and for a full and valuable consideration. The defendants are immediately apprized of all these facts. They treat with the plaintiffs, and that long before its time of payment had expired, and offer them satisfaction on certain terms.— Were the suit in the payee’s own name, but for the plaintiffs’ benefit, and all these matters had been disclosed, I would have protected their interests, and stopped every inquiry into consideration, the same not being such as to render the note void in the hands of a third person. A fortiori^ the indorsement, whenever made, should have been regarded particularly in support of a just debt, as relating back to the time of its actual delivery to the plaintiffs. But this, it is said, would have been in derogation of the defendants’ rights, who, if no actual indorsement took place, until after the note became due, might impeach its consideration. This necessarily leads to an inquiry into the nature of the present defence; for if such practice be correct in any state of things, which I do not admit, it ought not to apply to a case where the object of ascertaining the exact time of in-dorsement is to let in a defence against conscience, and founded in a violation of private faith. Although this court may have decided on the illegality of the consideration of notes of this description, and may not enforce their payment,.in suits between the original parties, the obligation to pay, in foro comcienUw, if the party has received value, still remains. Such is the case here. The defendants have received full value in lands, which they have probably sold to a profit, or of which they, or their tenants, for aught that appears, may now be in the quiet enjoyment. It was not alleged or pretended that the consideration had failed, although seven years had elapsed at the last trial, since the land had been conveyed to them.

There are circumstances in this case, which look very much like a combination between the makers and payee of the note, to defraud the plaintiffs. The Arnolds first receive value for it, from Lombard, who takes care to sell it to Holt. When they have thus both pocketed a consideration for this paper, and sent it abroad into the world, they lay their heads together for the purpose of rendering it a nullity, in the hands of a third person. This ought not to be endured. The defendants have had two chances already; with my consent, they shall not have a third.

Kent, C. J.

The most material question of fact in this cause is, whether the note was or was not actually indorsed by Lo r.bard, before it became due. The 'ndorsement purports to have been made on the 30th March 1799, the day before it fell due; but to repel this evidence, the in-dorsor testifies, that it was not indorsed until some time af-terwards. He speaks positively as to the time of indorsement, and relates circumstances to confirm the accuracy of his testimony. The testimony on the part of the plaintiffs also shows, that the note was not indorsed at the time it was sold and delivered by Lombard to Holt, and by him to the plaintiffs; but it might still have been indorsed at the time the indorsement is dated. If the testimony of Lombard was unimpeached, it would be decisive; but there is one fact that materially affects the credit of his testimony. He testifies, in a very positive manner, that he never knew, or heard, that the note was in the hands of the plaintiffs, or that they had any interest therein, or contemplated purchasing it, until June, 1799 j and yet, by a letter under his own. hand, bearing date in 1797, and directed to the defendants, hfe admits he had sold the note to Holt, and that Holt had sold it io the plainrifFs. This inaccuracy in his testimony, and of which he was clearly convicted, detracts greatly from his credibility. The circumstances relative to his testimony, were fairly submitted to the jury, and the verdict may be considered as evidence, that the jury did not give credit to his testimony. I think I should have drawn a different conclusion, but still the verdict ought not, on that account, to be disturbed. It is the peculiar province of the jury to judge and determine upon the credit due to a witness, when there are circumstances contradicting his testimony and affecting his credit. Upon this ground, I am against a new trial.

SpenceR, J. gave no opinion, having been concerned. Tompkins, J. concurred.