Baring v. Shippen

Tilghman C. J.

I shall consider this cause under three points of view.

1. Was any part of Cutting’s answer evidence?

2. Was there any part of it which was not evidence?

3. If there were parts not evidence, have any circumstances arisen, which preclude the plaintiff from the benefit of his exceptions?

1. Several objections have been made to the answer of Cutting in toto. First, it is said, that he was an incompetent witness, because he had assigned the bond which his testimony tends to invalidate. It is not pretended that he was interested in supporting the defendant’s plea. On the contrary, if he had any interest, it would have been promoted by the plaintiff’s recovery. By the principles of the common law, every person not interested, and not of infamous character, may be a witness. This principle was first broken in upon in the case of Walton v. Shelley, where from motives of policy it was decided that a man should not be allowed to invalidate an instrument to which he had given credit, by signing his name. The rule thus broadly laid down, has since been denied in England, particularly in the case of Jordan v. Lashbrooke, 7 D. & E. 601. But what is much more to the purpose, the rule was confined to negotiable instruments by a decision of this Court, in Pleasants v. Pemberton, 2 Dall. 196 . and the law has since been considered as settled. But it is contended, that granting the law to be so restricted, still Cutting was incompetent, because a bond is a negotiable instrument, being assignable by an act of assembly. But though assignable, I do not consider it as coming within the mercantile idea of a negotiable instrument, because it is liable in the hands of the assignee to every plea discount and objection, which might have been offered by the obligor against the obligee. As to that kind of- negotiable paper (such as *166 bills of exchange &c.) which passes by indorsement, and. is held by the indorsee, not subject to any right of discount existing between the original parties, there may be great public convenience in the rule which prevents any one from impeaching by his testimony the writiqg to which he has given credit by his name; but there is no such necessity in case of bonds, where every assignee knows that he takes the paper liable to objections. It never has been decided, that the assignee of a bond is an incompetent witness; and as it is not quite clear to me, that courts have a right to set aside principles of law from motives of policy, I am not for extending the rule farther than it has been already carried. Next it has been urged, that Cutting’s testimony was altogether improper, because Mrs. Shippen could read, and ought to have examined the bond before she executed it. If issue had been joined on the plea of non est factum, in England, this, in a court of common law, might have been a good objection. But the parties stand in our courts, on a different footing. By a rule of Court, matters that shew fraud or want of consideration, may be given in evidence under the plea of payment, notice being given to the adverse party. In this case notice was given. Now who can say that the answer of Cutting is not material to prove fraud? It tends to prove that a bond, which was given by Mrs. Shippen to him, for the sole purpose of raising money for her use, was applied by him to the purpose not of raising money at all, but of paying a debt of his own. If Mr. Baring had applied to Mrs. Shippen before he took the assignment, (which in prudence he ought to have done) he would have found at once that Cutting was acting a fraudulent part, and the mischief would have been prevented; not having done so, he took the assignment at his peril, and has no right to complain of the defence set up against him.

2. But are there no parts of the answer which were not legal evidence? Undoubtedly there are. I think that has not been denied by the defendant’s counsel; indeed it could not have been denied with any hope of success. The answer contains conversations between Mrs. Shippen and Cutting in Antigua, long after he made the assignment, which certainly are not evidence against Baring. The plaintiff has excepted to all and every part of this answer. It is true, consent had *167 been given, that the answer should be read; but it was subject to all legal objections, and it is perfectly understood that this reservation gives the right to object to particular parts as well as the whole, and this is every day’s practice. This brings me to the third point.

3. Is there any thing to preclude the plaintiff from the benefit of his bill of exceptions in its full extent? It is said that there is. Affidavits have been read, to prove that it was understood at the trial that no objections were to be made in this Court, but those which went to the answer of Cutting in toto. To these affidavits of the defendant’s counsel, a counter affidavit has been filed by the counsel for the plaintiff. But no agreement appears upon the record; and sitting here in a court of error, I do not think myself at liberty to go out of the record in order to form a decision on facts which are disputed. If it was confessed that such an agreement had been made, means might be found to do justice. But under the present circumstances, I am afraid of setting a precedent which may be attended with dangerous consequences. Confining myself to the record, I must say that the plaintiff’s exception has been supported. At the same time I cannot help adding, that it may tend to obstruct the administration of substantial justice, if at the trial of a cause, .objections are brought forward and urged, which go to the whole of a deposition, while others are kept back, (though included under general expressions in the bill of exceptions) which are good as to particular parts, and those perhaps not very material. It takes the adverse counsel by surprize, who in many instances would strike out the objectionable parts as soon as they were pointed out; and it keeps the court in ignorance, who may have their judgment reversed on a point on which they gave no opinion, and which was not even submitted to their consideration. I think it my duty therefore to express my hope, that in future, when objections arc intended to be made against particular parts, they will be brought forward, and distinctly stated in the bill of exceptions.

On the whole it is my opinion that the judgment of the Circuit Court be reversed, and a venire facias de nave awarded.

*168 Ye ates J.

On the fullest reflection, I am of opinion, as well upon general principles and the rule of this Court, as upon the terms under which the proceedings upon the judgment entered in this action, were stayed on the 2d May 1801, that the general matters contained in the answer or deposition of JohnBrowne Cutting, might well be given in evidence under the plea of payment, with notice of the special matters. They tended to avoid the bond, by shewing that it was made use of for a very different purpose, from that for which the deed was executed by the defendant. It is clearly settled that an obligation in the hands of an assignee, is subject to all the equity which could have prevailed against the original obligee. The circumstance of Mrs. Shippen not being unlettered, forms in my idea no difference. I am further of opinion, that Cutting was a competent witness to establish, the several facts within his own knowledge previous to the assignment. The cases cited by the defendant’s counsel, in my apprehension abundantly prove both positions. I will not enter into a detail of them, but will content myself with observing that the rule, that a party shall not be permitted to give evidence to invalidate an instrument which he has signed, has been confined by a decision of this Court to negotiable instruments, in Pleasants v. Pemberton, January term 1793. 2 Dallas 196 . The only difficulty which strikes me in the case is, whether suffering the conversations, inserted in the deposition, which took place between Cutting and the defendant at Antigua in 1801, to go to the jury, was error or not, under all the circumstances of the case.

I agree that sitting as a court of error, we are confined to matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support them. 3 Bla. Com. 405. The rule laid down is, that the plaintiff in error is confined to the objections taken at the trial, and stated on the face of the bill of exceptions; and was so decided in the house of lords in a case of Rowe v. Power on a bill of exceptions from Ireland. 2 New Rep. 36. and cited in Kensington v. Ingles et al. 8 East 281. And I also agree that the evidence excepted to was inadmissible on abstract principles, because the conversations alluded to happened more than two years after Cutting had assigned the bond to the jplaintiff, and therefore were in truth, res inter alios acta. *169 Whether Such facts exist in this case, of which the court can legally take judicial notice, as would prevent the plaintiff from taking advantage of this error, is a question which necessarily demands consideration. It led during the argument to a very unpleasant discussion, which the court greatly regretted. If there were no decisions on the subject, it would be just and reasonable, that the act of the attorney should bind the client; but the law is clearly so settled. 1 Salk. 86. Carth. 412. 1 Dall. 164 . A writ of error cannot be taken out against the agreement of the attorney. 1 H. Bla. 21. 2 T. R. 183. The court will order a non pros, to be entered when the writ of error has issued; 1 T. R. 388. and where a defendant undertook in a cause at law not to bring a writ of error for delay, or to lile a bill in equity for an injunction, and he afterwards filed a bill in chancery for a discovery, the Master of the Noils said, that although'the agreement was not a good plea to the bill for a discovery, yet he would not suffer him after such an agreement to come for an injunction. 4 Bro. Cha. Rep. 499. And so far have the agreements of counsel been carried in this court, that in December term 1803, where the plaintiff’s declaration below was materially defective, we gave leave to amend after a writ of error brought, without costs, upon a certificate of the adverse counsel that he had assented to such amendment previous to the trial in the court below. 1 Binn. 75. Johnson v. Chaffant.

The bill of exceptions states that on the trial on the 17th May 1803, the defendant’s counsel offered in evidence the answer of John Browne Gutting, prout agreement of the plaintiff’s counsel, which is in these words, as it appears on the record in the form of a letter dated May 26,1801, from John 'Ewing attorney for the plaintiff to Joseph Hopkinsan attorney for defendant. “ Sir, upon reflection, I think itpra- “ per to give you this early information, that that part of J*. “ B. Cutting''s answer to the bill filed in Antigua hy Mrs. “ Shippen, which is said to be the copy of a letter from Cut- “ ting to Manley, will be objected to by me at the trial as “ inadmissible. The other parts of the answer may be read, “ subject to all legal exceptions, at the trial of Baring v. Ship- “pen.” The plaintiff’s counsel objected thereto, “ that the said “ several matters and things contained in the said answer *170 44 were inadmissible. That the defendant at the time of giv44 ing the bond and warrant, w as and still is a person learned “ in the English language, and capable of reading and un- “ derstandiug the same, both in writing and in print; and 44 also that the said ohn Browne Cutting was not a compe44 tent witness for the purpose aforesaid, and that the said 44 answer ought not to be admitted or given in evidence to 44 prove the said several matters and things &c. But the said “ Justices delivered their opinion, that the said several 44 matters and things so offered to be given in vidence, and “ proved by the defendant to maintain the said issue on her “ part, were proper to be given in evidence and proved on 44 the part of the defendant, and that the said John Browne 44 Cutting was a competent witness to prove the same, and 44 ordered directed and permitted the answer of the said “ John Browne Cutting to be read to the jury. Where-44 upon &c.”

It is obvious that besides the g¿ neral objection, two specific objections are here taken to the testimony offered. The first to the nature of the testimony, on the ground that Mrs. Shippen was not unlettered. The second to the competency of Cutting as a witness, on the ground of his invalidating the bond which he had previously assigned for a valuable?'*' .consideration. I think it cannot be denied thatthé • words made use of, 44 the said several matters and things contained 44 in the said answer,” are sufficiently large to meet the present exception, independently of the contents of Mr. Ewing's letter before stated; but to that letter I can give but one construction. I read it thus. 44 The letter in the answer •“ from Butting to Manley is now expressly objected to, and •6t'you have hereby notice of it; but the other parts of the an-44 swer may be read, saving such objections as may be made “ thereto on the trial.”

Under this letter, thus specially penned, I feel myself thoroughly at liberty to take judicial notice of what passed upon the trial, that the most perfect good faith may be preserved between the counsel. I Well know the usual practice on trials, when a deposition has been ruled to be received in evidence on argument, and the adverse counsel excepts to particular parts thereof, that the court desire such counsel ‘o note the passages excepted to, which they will decide on if *171 the counsel cannot agree the matters between themselves. And I have no hesitation in saying, that it was incumbent on the plaintiff’s counsel here to state their exceptions specially, to' such parts of Cutting’s answer as they deemed objectionable. It has not even been insinuated that such part of the answer as is now objected to, was specifically excepted to upon the trial, or that the judges gave any opinion thereon. What then actually took place at the time of the trial? Mr. John Ewing, one of the plaintiff’s counsel, states in his letter of the 17th October 1807 to Mr. Hopkinson, “ that to the best “ of his recollection, the general question as to the admissi- “ bility of Cutting’s evidence, was only discussed; but after “ the opinion of the court was given against the plaintiff, “ Mr. 'Lewis stated that certain parts of Cutting’s answer “ clearly ought not to be admitted, and he thought particu- “ larly alluded to Manley’s letter. The court after some con- “ versation agreed to adjourn, and requested the counsel in “ the mean while to look over the answer together, as they “ might possibly agree upon the parts, which were admissible. “ He recollected perfectly well that Mr. Hopkinson and him- “ self read over the answer together in the tavern, and “ thought it most probable that Mr. Lewis and Mr. Tilgh- “ man were consulted upon the subject. The letter of Mr. “ Manley was cut out, either by Mr. Hopkinson or himself. “ He did not recollect any objection being afterwards made “ as to the admissibility of any part of the answer, which “ was not erased by them during the adjournment.”

It cannot be denied, that the affidavits of the different counsel cannot be reconciled; though we cannot do otherwise than presume that each of the gentlemen in his affidavit speaks most conscientiously, according to the best of his knowledge, recollection and belief. Yet I am impelled to make the observation, that though both the defendam’s counsel positively state, “ that Mr. Lewis for the plaintiff and “ Mr. E. Tilghman for the defendant were present in the “ room after the adjournment of the court, and were occa- “ sionally consulted by the two other gentlemen who were u examining the answer of Cutting in pursuance of the re- “ quisition of the court,” in which particulars they are corroborated by the foregoing letter off Mr. Ewing, Mr. Lezuis asserts, that “ he is well satisfied that the examination with *172 “ respect to the letter, and any references thereto which might ' “ be contained in the answer, took place in a great measure, w if not altogether, between Mr. Ewing and the opposite “ counsel or one of them; and that it related to the letter “ only, as he has always understood, except so far as it might “ be referred to by the answer.” He further says, “ that M after the decision of the court, he does not recollect or “ believe that any discussion, examination or inquiry, took “ place between him and the opposite counsel or either of “ them, with respect to any or what part or parts of Cutting's “ answer was proper or improper to be given in evidence; “ nor does he recollect or believe that after the decision, he “ ever proposed to them or either of them, that any part or “ parts of it should be struck out.” Though Mr. Lewis may neither have assented nor dissented to the proposal of the court'm the forenoon, “ to examine the deposition of Cut- “ ting, and agree to such parts as they should mutually agree “ upon to be admissible,” it is most certain from Mr. Ewing's second letter, that he acquiesced therein and acted in pursuance thereof, And though Mr. Lewis is sure and positive, that he never did in any way or manner, consent or agree, either directly or indirectly, that any part or parts of Cutting’s answer was to be considered as evidence, or that the bill of exceptions should be limited or confined to any part thereof, still both he and his' client must be bound by the true meaning and fair construction of the letter of Mr. Ewing the attorney upon record, of the 26th May 1801.

I consider Mr. Ewing’s letter of the 17th October 1807 as a safe ground, whereon I can form my judgment in the present instance. It materially agrees with the affidavits of the adverse' counsel; and it also accords with the notes taken upon the trial by the late Chief Justice Shippen, as far as they go. Viewing the discussion in this light, I am constrained to believe that the general nature of the testimony disclosed in Cutting’s answer, and his competency as a witness, were the sole matters on which the court decided; and that it was submitted by them to the counsel on both sides, to point out and ascertain the different passages in the answer wherein they agreed, which would at once shew wherein they disagreed; that some parts of the answer were in consequence hereof, erased therefrom by mutual consent; that *173 no objections were afterwards made , to other parts of the answer, but the same went to the jury as it then stood; and that the counsel on both sides made such remarks to the jury thereon as they thought proper. It follows from hence in my idea, that the plaintiff in error cannot take advantage of the objectionable parts now insisted upon, or assign them for error under all the circumstances of the case.

Upon the whole my opinion is, that the judgment of the Circuit Court for the defendant be affirmed.

The court being thus divided in opinion,

Judgment affirmed.