Pugh v. . Grant

Ruffin, J., after stating the case. If the first issue, and His Honor’s charge with reference to it, stood alone in the cause, we should unquestionably sustain the defendant's first exception. As we intepret that portion of the charge, and as we think the jury must have understood it, its effect was to throw upon the plaintiff, suing as the endorsee of negotiable bonds, the burden of establishing affirmatively, not only the genuineness of their indorsement, but that he acquired them bona fide, and for a valuable consideration. Conceding that, in the existing state of the pleadings, the burden of proving the fact of the endorsement did rest upon the plaintiff (though that, we think, by no means certain) our understanding of the law is, that upon the production of the instruments, accompanied with such proof as entitled him to read in evidence the endorsements thereon, there was a prima facie presumption in his favor, to the extent, that he was the true owner, and that he took them for value. It is a presumption that in a proper case might be rebutted, but the burden of the proof would undoubtedly lie upon the person who might allege any defect in his title. In 1 Daniel on Neg. Inst. § 812, the law'’ is thus stated : “ The mere possession of a negotiable instrument produced in evidence by the endorsee, imports prima fade that he acquired it bona fide and for value, and that he is the owner *45 thereof. In other words, the production of the instrument and proof that it is genuine (when indeed such proof is necessary), prima facie establishes his case, and he may there rest it.” And in French v. Barney, 1 Ired., 219, this court held that there was an implication of law in favor of every holder of a negotiable note, until something be shown to the contrary, that he gave value for it, and came fairly and rightfully by it And to the same effect is 1 Parsons on Notes, 255, and the case of McArthur v. McLeod, 6 Jones, 475. In this respect the law makes no discrimination between notes overdue and those not due at the time of assignment, and neither should it. For, if allowed to be negotiated at all, the circulation of past due notes should be upheld by the same presumption in favor of the title of the holder, as exists in case of instruments of the other sort. To this rule in favor of the holder of a negotiable instrument, an exception is made when there was any fraud or illegality in its inception. Upon such proof being offered, the holder is required to show that he acquired it bona fide for value, there being at such a juncture, says Daniel at § 815, “ a shifting of the burden of proof from the defendant to the plaintiff.” In the present case, there is no pretence of any fraud practiced at the execution of the bonds sued on, and no suggestion of any illegality in their original consideration — so that it came strictly within the general rule. But conceding this to be so, and that there was error, it still remains to be determined how far it was made immaterial and harmless, by reason of the finding of the jury upon the other issue. Becoming the owner of the bonds after their maturity, the plaintiff holds them subject to every defence, whether of set-off or equity, existing between his assignor and the defendant, at the date of the assignment, or before notice thereof given. He stands in the shoes of his assignor, just as if the action were brought in his name, and cannot, any *46 more than he could, avoid the consequences of the fraud, which the jury have said was used in procuring the settle* ment (exhibit “0”), wherein the claims, relied on to support the defendant’s plea of set-off, were attempted to be adjusted. It is therefore, manifestly, immaterial upon what consideration, or with what intent, he procured the assignment of the bonds. So long as the second finding of the jury stands, he cannot succeed in his action, and hence, as it seems to us, the first issue, itself, was unnecessary, and without any decisive bearing upon the real merits of the case. If so, then, no error committed in connection with it could be of such weight as to justify the court in disturbing the verdict and judgment, on account of it. Thus it becomes necessary that we should consider the other branch of the case. And here as we conceive, an error was committed in excluding the testimony of the witness, Vincent, in explanation of the claims against him, held by the defendant, and sought to be used as sets-off against the plaintiff — even though the inquiry with regard to them should embrace transactions, or communications, between the witness and the defendant’s intestate. There can be no question made, but that under section 343 of the Code, as it originally stood, the witness, while competent generally, would have been incompetent as to these particular transactions. Indeed, being the “assignor of the thing in controversy ” be was excluded by the very terms of the proviso to that section, as against the defendant administrator. But the question is, as to the effect upon his competency under the act of 1879, ch. 183, adopted as an amendment to that section. By that act it is provided in substance that no person who is a party to an action founded upon a bond to pay money, executed prior to August, 1868, shall be a competent witness, but that the rules of evidence in force when said bond was executed shall be applicable to said suit. For the defendant it is insisted, that this latter *47 clause of the statute should not be construed literally, and so as to restore all the rules of evidence, which obtained at the date of the execution of the bonds sued on, but only such as had reference to the competency, or incompetency of parties to actions. His argument is, that the statute was intended to be a disabling act — declaring incompetent some who, under the original section, were competent, and that to give a larger signification to the words of its latter clause, would convert it into an enabling statute, and thus defeat its primary intention. There seems to be much force in this course of reasoning, and were the terms of the statute in the least, less certain and precise than they are, we might, and in fact would feel at liberty to yield to it our concurrence ; but courts ought not to resort to interpretation (which at last is but conjecture) when there can be no need-for it because of the certainty of the language used in a statute. The true rule for construing a statute, and we may say the only honest rule, for a court really seeking to observe the will of the legislature, is, to consider and give effect to the natural import of the words used. If they be explicit^ and express a clear definite meaning, then that meaning is the one which should be adopted, and no effort should be made by going outside of the words used, to limit or enlarge its operation. Above all, is it not to be presumed that the legislature intended any part of a statute to be inoperative and mere surplusage, and yet such must be our conclusion with reference to this particular clause, if we should interpret it as suggested for the defendant. The rules of evidence in force at the date of the execution of the bonds declared on, were those of the common law, and with reference to parties, th*at law has but one rule, which is, to exclude them all as being incompetent. Now, that much was accomplished by the first clause in the act of 1879, by a clear declaration that no party to an action; based upon a *48 bond executed before a given date, should be a competent witness, and if we should give no other operation than this to its latter clause, it would be simply to pronounce it redundant and meaningless. Guided then by the only legitimate rule, we feel constrained to give to the statute, and every part thereof, just that meaning which its unambiguous words import, and to hold its effect to be to restore the whole law of evidence applicable to the subject as it stood in 1861, when the bonds sued on were executed. As we have said, the law of evidence then in vogue was that of the common law, which excluded all parties to actions, and so, too, every person who had a direct legal interest in the event of the action, though not actually a party. But to this last rule there was this exception: If the interest of the person offered as a witness was equally balanced, so that he had as much interest on one side as the other, he became a competent witness in the case, and might be called by either party. As coming within the exception, it was held by the common law, that the endorser of a note was a com petent witness for either party to an action between his en-dorsee and the maker. 1 Greenl. on Ev., §400. In such case, if the plaintiff (endorsee) should recover of the maker (the principal), then the endorser (the surety) would be discharged of all liability’". But if the plaintiff should fail in his action against the maker, he could recover the debt of his endorser, who in turn, could recover it of the maker, and so he stood indifferent between them, and was competent for either. Gilliam v. Henneberry, 6 Jones, 223; Peebles v. Stanley, 77 N. C., 243. We therefore conclude that the witness, Vincent, was competent to speak as to the matters for which he was called, and that his exclusion was such an error as entitles the plaintiff to a venire de novo. The other exception it is needless to consider. Error. % Venire de novo.