Opinion. the Aragon Coffee Co. from Hills Bros. & Co. The said coffee was not according to sample, and that the attention of Hills Bros. was called to this in several letters to them from the Aragon Coffee Co. some time past, but which they refused to consider. My clients are perfectly square people in every particular, but do not propose to pay for coffee that they cannot use. I would suggest that you will probably find your way easier to make this money out of Hills Bros. & Co. than out of the Aragon Coffee Co. "Very truly yours, "H. W. GOODWYN." It is among the agreed facts in the case that Hills Brothers Company had to their credit with the National Park Bank during all the period covered by this investigation at least the sum of five thousand dollars. It appears that one of the principal stockholders in Hills Brothers Company was the father-in-law of the plaintiff, Rogers; that his brother-in-law was the president of the company; and that his wife was one of the stockholders in the company. It further appears that the first information Rogers had with respect to this note was derived from his father-in-law; that at his suggestion the plaintiff went to the attorney for the National Park Bank, in whose custody the note was; that he purchased it, paying the full principal and interest due upon the note; that in order to make the purchase he had to raise the money by the sale of stocks; that he took the note from the bank without recourse, after it had been protested, and with the knowledge that its collection would involve a law suit. He was put upon the stand as a witness by the plaintiff in error, and every effort to elicit the truth with respect to this transaction was met with evasion, equivocation, or silence. He was asked if to answer the questions would tend to inVOL. CV-8 Opinion. criminate him; he replied that it would not. The question again would be put to him, and he would again decline to answer. Why he should have desired to make this investment, when in order to make it he found it necessary to change his investment and dispose of stocks, it is impossible to answer with even a reasonable conjecture. He paid full value for a protested note. He took it without recourse. He knew that it involved a law suit, and yet, when called upon to explain, every question was met with a refusal to answer. In Wigmore on Evidence, volume 1, section 285, it is said: "The consciousness indicated by conduct may be not an indefinite one affecting the weakness of the cause at large, but a specific one concerning the defects of a particular element in the cause. The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions, and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted. The non-production of evidence that would naturally have been produced by an honest and, therefore, fearless claimant permits the inference that its tenor is unfavorable to the party's cause." And continuing this subject, the same author at section 289 says: "At common law the party-opponent in a civil case was ordinarily privileged from taking the stand; but he was also disqualified; and hence the question could rarely arise whether Opinion. his failure to testify could justify any inference against him. But since general abolition both of the privilege and the disqualification, the party has become both competent and compellable like other witnesses; and the question plainly arises whether his conduct is to be judged by the same standards of inference. This question should naturally be answered in the affirmative." It seems plain to us that there is a stronger presumption to be raised against a party in whose possession the facts must be, if they exist, by which suspicion would be removed and all question as to the propriety of his conduct be set at rest, who stolidly refuses, without the suggestion of a reason, to aid the court in arriving at the truth. It is within the bounds of possibility that a reason existed, why "as a matter of business," to use his own language, the plaintiff may have thought it desirable to buy a protested note which he knew could only be collected as the result of a law suit. If such explanatory facts existed, they were in his breast, and his refusal to disclose them warrants the hypothesis that he feared the exposure. As was said in Union Bank v. Stone, 50 Me. 595, 79 Am. Dec. 631, "There was evidence proving or tending to prove that a notice of demand and non-payment had been given the defendant. He had been notified to produce it, and did not. He was present and not a witness. If he had never received such a notice, he knew it, and knowing it, would be little likely to omit an opportunity of stating a fact thus conclusively in his favor. The evidence tended strongly to charge him. A word from his lips might exonerate him from all liability. If notice had been received, and the defendant knew it, he might well be silent. The utterances of the truth would establish the plaintiff's claim. If he were a witness, he must either state the truth or a falsehood. If he testified truly, Opinion. his hope of a successful defense was at an end. The defendant does not offer his own testimony. He prefers the adverse inferences which he cannot but perceive may be drawn therefrom, to any statements he could truly give, or to any explanations he might make. He prefers any inferences to giving his testimony. Why? Because no inferences can be more adverse than would be the testimony he would be obliged by the truth to give. The fact of not testifying was obvious to the jury. Νο court could perceive such a fact without attaching some degree of importance, more or less, to its existence, according to the necessity of the testimony and the emergencies of the defense. No judge exists who would not, if the trial had been before him, regard this as a fact bearing on his decision." And in Brown v. Schock, 77 Pa. 471, it is said: “A man of ordinary intelligence must know that his failing to appear, when he had a strong motive to appear, would be evidence against him; if he relies upon his ability to disprove the motive imputed, he takes the risk, but he leaves the effect of his conduct, as a matter of evidence for the opposite side, to go to the jury." In Bastrop State Bank v. Levy, 106 La. 586, 31 South. 164, the court said: "Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth. Wheu a defendant can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist." Opinion. These cases are cited, not because of any similitude of their facts to the case before us, but because all of them illustrate and enforce the principle, that when a party can, by his own testimony, throw light upon the matter in issue and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist. In the case of Battersbee v. Calkins (Sup. Ct. of Mich.), 87 N. W. 760, a firm of Niagara Falls, New York, were payees and holders of the note in suit. It was a negotiable promissory note, payable to their order. It was sold before maturity to a savings bank in Detroit, under circumstances which admittedly made the bank a bona fide purchaser. It was sold to this bank by the attorney of the payees, to whom it had been sent for collection. It did not appear whether or not the payees directed such sale. The attorney indorsed the note before sale in blank, as the payees had previously done. The note went to protest for non-payment, and subsequently it was indorsed to "any bank or order" over the signature of the savings bank, and transferred to a State bank, which sent to the savings bank its check for the amount due upon the note. Plaintiff was the cashier of the State bank, and testified that he was not the owner of the note, and had brought this action for the benefit of the bank. The defendant, who was the maker of the note, sought to show that the note was obtained by fraudulent representations made by an agent of the payees. The attorney for the payees · before mentioned, called as a witness for the defendant, testified that he received the note before maturity for collection, and indorsed and sold it to the savings bank, and received payment of the consideration, which he put in the bank to his own credit, and checked out, as he did other money; that he sold the pote because he wanted to, and did not know that he was directed to do so by the payees. It was shown that after protest of the note |