Winton v. Saidler. myself, in this decision, to the particular case of negotiable notes, and do not mean to, say, generally, that in no case whatever, a party to any instrument shall be permitted to impeach it. Judgment for the plaintiffs.(b) though Livingston, J. and Thompson, J. thought the witness incompetent, within the principle laid down in Winton v. Saidler. See further, Baring v. Reeder, 1 Hen. & Munf. 174,) in the supreme court of Virginia, the opinion of Lyon, J. who adopts the case of Walton v. Shelly as the best law. The supreme court of South Carolina, in the case of Canty v. Sumter, (2 Day's Rep. 93,) also adopted the rule of that case. Sed quære. "The (b) Mr. Smith in his note to Bent v. Baker, (3 T. R. 27,) says: courts ever since Bent v. Baker, have evinced a laudable desire to let in truth wherever precedent will admit it, by holding objections to apply rather to the credit than the competency. Bent v. Baker was followed by Smith v. Prager, (7 T. R. 60 ;) and by the celebrated decision in Jordaine v. Lashbrooke, (7 T. R. 601,) which is remarkable because, while it recognized the general principles laid down in Bent v. Baker, it afforded Lord Kenyon an opportunity of correcting the report of that case, as to certain expressions there attributed to him. That was an action against the defendants, as acceptors of the following hill of exchange : "Hamburg, 30th December, 1796, for 100l. At three usances, pay this my first bill of exchange, to the order of Messrs. J. Thynne and Co., 1001. sterling value in account, and place it to account of G. W., as advised by David Heur Meyer. "To Messrs. T. Lashbrooke and Sons, London." Accepted by the defendants, and indorsed by Messrs. Thynne and Co., the payees. At the trial, Thynne was called by the defendants to prove, that although dated at Hamburgh, the bill was drawn in London, so that it was not receivable in evidence for want of a stamp. The witness was objected to on the ground of incompetency, but received by the L. C. J. Kenyon, and a rule for a new trial on that ground discharged. "The proposition," said Lord Kenyon, "attempted to be established for the plaintiffs is, that for some techinal reason, or for some reason of policy, a court of justice must shut its ears, and not suffer facts to be laid before them by a witness who is not infamous in character, and who has no interest in the cause. If the law be so, there is some novelty in it. I have always understood the law 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 subject requires. The rule contended for by the plaintiff is this, Winton v. Saidler. that 'however infamously you, the defendant, may have been used, whatever may be the rights of other persons, if I, the plaintiff, the party to the fraud, can get on the instrument the name of the person who may be the only witness to the transaction, I will stand entrenched within the forms of law, and impose silence on that only witness, though he be a person of unimpeachable character, and not interested in the cause.' But I cannot conceive on what ground such a proposition can be established. It is contradicted by every hour's experience. It would tend to show, that a party to an instrument shall not be permitted to contest its validity in a court of law, not only by his own evidence, but by any evidence whatever. But in actions brought on bills of exchange and notes of hand. it is permitted to the defendant to show that the bill, or note, was given on an usurious or gaining consideration; that is proved by every day's experience; then the general proposition is not true. But does the policy of allowing such a defence to be made apply to this case as strongly as to those? Precisely the same. And not finding any case prior to Walton v. Shelley, (1 T. R. 296,) in which such a defence was excluded, I cannot bring my mind to assent to the authority of that case. This is one of the most important questions that can be discussed. On the rules of evidence depend the facts of every question that can be discussed, and, therefore, it is of the utmost importance to preserve those rules. It has been argued, that the defendant is estopped in this case; but estoppels are odious, and not to be extended farther than the law has already carried them. The word estoppel does not apply to such a case as the present. When the drawee accepts a bill, he admits it to have been signed by the person by whom it professes to have been made; but he does not thereby admit that the holder of the bill is in a condition to enforce payment of it. Most of the cases cited I admit to be law. That of Bent v. Baker, is of great authority. It came here on a writ of error from the common pleas; and though a writ of error was afterwards brought to reverse our judgment, it was at length abandoned. But I wish to correct an expression imputed to me in the report of that case, that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by his testimony.' Because having frequently weighed this subject in my mind, and having not only entertained a contrary opinion, but having also always acted on that opinion at Nisi Prius, I think I never could have used the expression imputed to me. The case of testamentary witnesses cannot, in my opinion, be distinguished from the present; and if not, there is abundant authority in support of my opinion. Sir J. Jekyll always permitted the subscribing witnesses to a will to give evidence to impeach the will, and the same thing was also done in Lowe v. Joliffe, (1 Bl. 365.)" The principle of Walton v. Shelley, (1 T. R. 296,) after being sustained in the principal case; Steinback v. Rhinelander, (infra, 269;) Colman v. Wise, (2 Johnson, 165;) and Mann v. Swan, (14 Johnson, 270;) and recognized in a number of other cases, was at length overthrown in New York, and the rule in Jordaine v. Lashbrooke, (7 T. R. 599,) adopted. (Williams v. Walbridge, 3 Wendell, 415. Stafford v. Rice, 5 Cowen, 23. Hilliard, id. 153.) The decisions in Virginia, (Taylor v. Bank of Utica v. Beck, 3 Randolph, Winton v. Saidler. 316.) Connecticut,' (Townsend v. Bush, 1 Connecticut, 260.) Massachusetts, to prove defence of usury under the stat. of 1826, c. 27, § 5, (Little v. Rogers, 1 Metcalf, 108.) South Carolina, (Knight v. Packard, 3 M'Cord, 71 ;) Tennessee, (Stump v. Napier, 2 Yerger, 35.) Maryland, (Ringgold v. Tyson, 3 Harris & Johnson, 172.) New Jersey, (Freeman v. Brittan, 2 Harrison, 191. Heath v. Everson, id. 245.) North Carolina, (Grey v. Hall, 3 Murphy, 151. Georgia, Stack v. Moss, Dudley, 161. But see Wendell v. George, R. M. Charlt. 51.) Alabama, (Todd v. Stafford, 1 Stewart, 199. Davidson v. Lone, 1 Alabama, 133. Griffing v. Harris, 9 Porter, 226.) Illinois, (Webster v. Vickers, 2 Scammon, 295.) And Missouri, (see Bank of Missouri v. Hull, 7 Missouri, 273,) agree with the later decisions in New York. On the other hand the decisions of the United States courts follow the rule as laid down in Walton v. Shelley, (ut sup. Henderson v. Anderson, 3 Howard, 73. Bank of U. S. v. Dunn, 5 Peters, 51. 57. Bank of Metropo lis v. Jones, 8 Peters, 12. U. S. v. Lifler, 11 Peters, 86, 94, 95. Scott v. Lloyd, 12 Peters, 149. Taylor v. Luther, 2 Sumner, 235. Per Story, J.) And the decisions in Maine, (Clapp v. Hanson, 3 Shepley, 345. Buck v. Appleton, 2 id. 284. Deering v. Sawtel, 4 Greenleaf, 191. Chandler v. Morton, 5 id. 374. See Lane v. Padelford, 2 Shepley, 94.) Massachusetts, (Thayer v. Crossman, 1 Metcalf, 416. Churchill v. Sutor, 4 Massachusetts, 156. Parker v. Lovejoy, 3 id. 565. Barker v. Prentiss, 6 id. 430, 434. Widgery v. Monroe, id. 449. Jones v. Cooledge, 7 id. 199. Mannin v. Wheatland, 10 id. 502. Fox v. Whitney, 16 id. 118. Packard v. Richardson, 17 id. 122. Hartford Bank v. Barry, id. 94. But see Van Schaak v. Stafford, 12 Pickering, 565. American Bank v. Jeuness, 2 Metcalf, 288.) New Hampshire, (Bryant v. Rattlebush, 2 New Hampshire, 112. Hadduch v. Willmarth, 5 id. 187. Houghton v. Paige, 1 id. 60.) Vermont, (Chandler v. Mason, 2 Vermont, 198. But see Nichols v. Holgate, 2 Akin, 138.) Pennsylvania, (O'Brien v. Davis, 6 Watts, 498; Harrisburgh Bank v. Foster, 8 id. 304, 309. Ross v. Wells, 1 Stewart, 139. But see Todd v. Stafford, id. 199.) See a very complete review of the American decisions in Messrs. Cow. & Hill's Notes to Phill. Ev. 71-81; 1 Greenl. Ev. ed. 1842, p. 430. See also Smith's Leadg. Cas. by Hare and Wallace, Notes to Bent v. Baker. Mr. Hare in commenting on the rule in Walton v. Shelley, observes: "except in as far as it may be comprised in the common-law doctrine of estoppel, it has been everywhere decided to apply only to those instruments which are negotiable in their character; though in the terms in which it was expressed by Lord Mansfield, it extended to all instruments in writing, of whatever description. (Pleasants v. Pemberton, 2 Dallas, 196; Barren v. Shippen, 2 Binney, 165; M'Ferran v. Powers, 1 Sergeant & Rawle, 107; Krank v. Krank, 4 W. & S. 128; Dickinson v. Dickinson, 9 Metcalf, 471; Blagg v. Phoenix Insurance Company, 3 Washington C. C. R. 5; Loker v. Haynes, 11 Masachusetts, 498; United States v. Leffler, 11 Peters, 95." See 1 Stark. Ev. ed. 1842, p. 164, et seq. ; 2 id. 256, 257, and note a ; Chitty on Bills, Am. ed. 1842, 669, and n. 1.) Riggs v. Denniston. *RIGGS against DENNISTON. [*198] To charge a counsellor at law with offering himself as a witness, in order to divulge the secrets of his client, is libellous; and it is not a sufficient justification, that he disclosed matters communicated to him by his client, which had no relation or pertinency to the cause in which he was engaged. The secrets of his client, which the counsel is bound to keep, are the communications and instructions of the client, relative to the management or defence of his cause. To charge a commissioner of bankruptcy with being a misanthropist, a partizan, stripping the unfortunate debtors of every cent, and then depriving them of the benefit of the act, &c. is libellous. And to make out a justification of the charge, the defendant must show that the plaintiff, as commissioner, wilfully perverted the law to such oppressive purposes. Whether the law allows a justification of a libel which does not charge any indictable offence? quære. THIS was an action for a libel. The case came before the court on demurrer to the pleas. The following is a brief statement of the pleadings. The declaration contained three counts. The first count stated, that the plaintiff was a counsellor at law, of this and other courts, and also a commissioner of bankruptcy, under the act of congress; and that the defendant, maliciously intending to defame and injure him, as counsellor and commissioner, did, on the 20th April, 1801, falsely and maliciously, print and publish in a newspaper, to the following effect, viz. "Since the establishment of our independence there has been no man, appointed to an office, so unqualified to fill it, as C. S. Riggs (meaning the plaintiff) is that of commissioner of bankruptcy. Is the misanthropist and the violent partizan (meaning the plaintiff) a fit character to intrust the liberties of our fellow citizens with? Mr. Riggs (meaning the plaintiff) has given no occular demonstrations to the contrary. He (meaning the plaintiff) has defeated nearly one third of all the unfortunate debtors that have been before him, (meaning the plaintiff,) first stripping them of every cent they have in the world, then depriving VOL. III. 33 Riggs v. Denniston. them of the benefit of the act made for their relief, under the most trifling pretences; and, by that means, cutting off a number of valuable members from society; that property being taken from them, (meaning the said unfortunate debtors,) they have no way of bringing their creditors to a settlement; and, in that embarrassed situation, they can fol low no business, and, perhaps, thrown into a jail, and there expire for want. Oh! how grateful must this be to [199] the feelings of this misanthropist, *(meaning the plaintiff,) more so than to keep unfortunate debtors in jail for petty law-costs, when his (meaning the plaintiff's client is willing to liberate the poor sufferer, that has been in confinement for years; more so than if they had succeeded in depriving the debtors of the benefits of the limits; nay, even more so than to receive a fee of 50 dollars, as a counsellor, (meaning to intimate, &c., that the plaintiff had been so employed,) and then to offer himself (meaning the plaintiff, and that he had voluntarily offered himself, &c.,) as an evidence against his client, in order to divulge the secrets he (meaning the plaintiff) received as counsellor, &c, (meaning thereby that he had divulged his client's secrets, contrary to his duty, &c.) 1 (meaning the defendant) cannot but contrast the conduct of the two sets of commissioners. (Meaning one set whereof the plaintiff was not one and one set whereof the plaintiff was one.) The one (meaning the set whereof the plaintif was not one) acts according to the intent and meaning of the law, &c. They do not pervert it into an ex post facto law, and because a man cannot tell the loss and profit of a transaction, or discount paid upon a note, things that had taken place years before, &c. to cut him off from society," &c. (meaning to insinuate and have it believe, that the plaintiff had, as commissioner, &c. wilfully and knowingly, perverted the law, &c. for illegal and oppressive purposes.) The second count was to the same effect, except, that it charged the libel as injurious only to the plaintiff as commissioner. |