Douglass v. Mitchell's

The opinion of the court was delivered by Strong, J. The bill single and the promissory note given in evidence, made out a primé facie ease against the defendant. The signature to the instruments is admitted to have been genuine, but the defence is, that no consideration passed from Douglass to Mitchell for the instruments; that no money was loaned as the plaintiff claims, and from this it is inferred, that the instruments must have been forgeries written over genuine signatures. The disputed ground of the case, therefore, was in the question, whether Thomas S. Mitchell had actually received from Douglass the sums of money for which it was claimed the notes were given. To maintain that he had not, was the avowed purpose of all the evidence rejected by the court, and to the rejection of which exception was taken. Now, it is to be observed, that the fact in controversy was not fraud itself, but a thing from which fraud was sought to be inferred. Where the question is one of fraud, it has often been said, that wide latitude is to be given to the admission of evidence; that is, collateral facts may be proved, having only a very remote bearing upon the question, a bearing so remote that they would not be considered legitimate on the trial of other questions not of fraud. But though this is true, yet those collateral facts, from which the inference of fraud is sought to be drawn, must be proved precisely as facts are proved in other cases. Now, in other cases, no one will argue that a party, sued for an alleged loan of money, can disprove the claim by giving in evidence his own books, or showing that he had made no memorandum of the receipt of any such money. The inquiry is not, what has a moral tendency to persuade the mind, but what has a legal tendency. Proof of good character of a defendant would be persuasive, in many cases, that he had honestly complied with his contracts, and would doubtless affect the minds of a jury, but it is not on that account admissible. It is true, that in some rare cases, evidence of the acts of a party has been admitted in his own favour, but his written or oral declarations, or his silence, have not been permitted to aid him. The case which approaches nearest to warranting the admission of such evidence is, perhaps, Brown v. Clark, 2 Harris 471. The question in that case was, whether Mudge and Clark were partners at the time the note in suit was given. A witness was permitted to testify when the formation of the partnership was advertised, and when the last [446] advertisement was published; this he was permitted to state as his means of knowledge. This, however, by no means rules what is claimed in this case; the testimony was admitted because it related to facts from which the witness refreshed his recollection. Considering, then, that the fact in issue, to which the evidence offered was addressed, was debt or no debt, a loan of money to Thomas S. Mitchell or no loan, we think there was no error in rejecting the evidence described in the first, second, third, and fourth assignments of error. The fifth and sixth assignments relate to the charge of the court, instructing the jury, “that as proof of a fact, the law permits inferences from other facts proved, but does not allow presumptions of facts from presumptions; a fact being established, other facts may be, and often are, ascertained by just inferences; not so with a mere presumption of a fact: no presumption can with safety be drawn from, a presumption, there being no fixed or ascertained fact from which an inference of fact might be drawn, none is to be drawn.” These observations the judge applied to the non-appearance of deposits corresponding with the alleged loans, after proof that it was Mitchell’s habit to deposit all money received, and also to the evidence that Mitchell had passed a title derived through Douglass without the joinder of his wife. The chain of inferences in this case is this: Mitchell being a prudent conveyancer, it is presumed, would not have passed a title in which the wife did not join; hence it is presumed, he did not know Douglass had a wife; and in this way the circumstance is to be proved from which it is said the jury may deduce inferences. Now, without pausing to observe that, taking the whole charge in its connection, it may well admit of doubt whether this instruction of the court was intended or understood as a binding direction, we are not convinced that it was erroneous. It is in precise accordance with the acknowledged principles of all sound moral reasoning. No conclusion is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. Starkie has well laid down the rule: Stark. Ev. 57. In inquiring how far the law interferes to limit and restrain the admission of evidence of collateral circumstances tending to the proof of a disputed fact, he remarks: “ In the first place, as the very foundation of indirect proof is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evidence, in the same manner as if they were the very facts in issue.” It is upon this principle that courts are daily called upon to exclude evidence as too remote for the consideration of the jury. The law requires an open visible connection between the principal and evidentiary [447] facts, and does not permit a decision to be made on remote inferences: Best on Evidence 95. And the judge, in deciding that the evidence of any particular circumstance is not receivable, must impliedly decide that no presumption can be drawn from it which ought properly to have any effect on the minds of the jury. A presumption which the jury is to draw is not a circumstance in proof, and is therefore not itself a legitimate foundation for a presumption. There is no “ open and visible connection” between the fact out of which the first presumption arises, and the fact sought to he established by the dependent presumption. We think, therefore, there was no error in the instruction given to the jury respecting the inferences which might properly he drawn from the evidence. The case before us affords a remarkable illustration of the worthlessness of presumptions dependent on other presumptions. Mitchell, says the plaintiff in error, passed a title derived through Douglass, without noticing the non-joinder of his wife. It is inferred, that he would not have done so, with knowledge that Douglass had a wife, from the fact that he was a careful conveyancer. From this inference, it is next presumed, he did not know Douglass had a wife, and therefore did not know Douglass, and therefore could have lent him no money. But, without noticing the attempted subsequent inferences, who does not see that the inference is quite as strong, and even stronger, that he was not a careful conveyancer; for if he had been, he would necessarily have inquired whether the grantor was married or single. We think also that the remaining assignment of error is not sustained. The letter of the counsel was in no sense a solemn admission binding on his client, and the fullest effect to which it was entitled was given to it by the judge who tried the cause. Judgment affirmed. Woodward, J., dissented.