Hogan v. Sherman

Campbell J.: Sherman, the defendant in error, brought an action against Hogan, as maker, and Carson, as endorser, of a due-bill, not negotiable, made payable to Sherman, and obtained judgment in the Circuit Court. Upon the trial in the Court below, the plaintiff introduced evidence of the signatures of the defendants, and rested. The defendants then offered in evidence^ paper signed by Sherman, the plaintiff below, and entitled m the cause, of the following tenor: “I admit and certify that I have no property or interest in the promissory note declared upon in the above entitled cause, and that I never had any. That about the time it was given, I was aware that the defendant Hogan [63] and one Westbrook, known as T. Westbrook, played at cards, but I was not present when the game concluded, or when the note was given. That said Hogan and said West-brook both informed me that the consideration of said note was for money won by playing at cards, from said Hogan by said Westbrook; that when said Hogan so informed me, he requested me not to endorse sáid note; I promised that I would not. That said Westbrook afterwards requested me to endorse said note and I did so; but afterwards remembering my promise to Hogan, I caused the endorsement to be erased. Said noté was then owned by said Westbrook. I have no reason to doubt the truth of the statements made to me, as to the consideration of said note. The said note was made payable to me without my knowledge or consent. And I further state, that I know of no reason why said note was made payable to me, and I can not now say who owns said note.” This evidence was objected to, and rejected, and the defendants excepted to its rejection. Carson, one of the defendants, made and filed an affidavit, stating that the consideration of the due-bill was money won at gaming, from Hogan by Westbrook; and that the fact was within the knowledge of the plaintiff, and that there was no competent witness by whom he could prove the same. The deposition of Sherman was taken under this affidavit; and he testified substantially according to his written admission. The evidence was rejected, and the defendants excepted. This testimony was rejected on the ground that it consisted mainly of facts made known to Sherman by the admissions of Westbrook, and 'did not therefore correspond with the affidavit. The first ground of error alleged is, That the Court below improperly rejected the admissions of Sherman, the plaintiff of record. We think this rejection was erroneous. The case, as it stood when the plaintiff closed his evidence, did not disclose any interest in any other person. Sherman [64] appeared to be the real and not a nominal plaintiff. It would be very strange if a defendant were not at liberty to meet such a case by the plaintiff’s own declarations, even if not made in the formal shape in which this statement appears. But it is claimed that the admission of Sherman contained in itself evidence that he was not the real plaintiff; and it is urged that the declarations of an assignor are not competent to impeach the title of his assignee. We are not disposed to question the doctrine that an assignor can not, after the bona fide assignment of a chose in action, and notice to the debtor, admit away his assignee’s title; but we do not perceive the applicability of that rule to this case. The plaintiff, while admitting that he has no claim, and never had any, to the due-bill in suit, as explicitly denies that he has assigned or disposed of it to any one. It could by no process become the property of any one else, without such assignment. And while this admission shows no cause of action in himself, it shows no cause of action legally or equitably belonging to any one else. For this reason, if for no other, it was admissible. But we do not regard the law as in any way establishing the doctrine that the admissions of a plaintiff of record are to be excluded, even where there is evidence of an assignment. The declarations of a party in interest are always admissible in derogation of his own title. The plaintiff of record generally stands (except in official suits and like cases) as the ostensible party in interest. If it is objected to the admissibility of his declarations that he has parted with his interest, that fact is open to controversy, and its decision belongs, not to the Court, but to the jury. If the fact of such assignment appears in his admissions, it is for the jury to determine how much of the admission is credible, and how much to be disregarded. — 1 Greenl. Ev. §201. If a Court assumes to reject his statements because there is evidence that he has parted with his interest, it is encroaching upon the province of the jury, by deciding upon a fact which is [65] important in arriving at a verdict. There are, it is true, some cases which seem to hold that such declarations are inadmissible, and should be rejected; but we do hot perceive the force of their reasoning. No such ruling is necessary to save the rights of assignees. That object may be fully obtained by leaving all the facts to the jury, under instructions from the Court, that if they find a proper and valid transfer of interest to have been made, they shall disregard all subsequent, declarations of the assignors. This is the only way whereby the rights of all parties can be preserved.— 1 Greenl. Ev. §§ 171, 172, 173, and Notes; 1 Saund. Pl. and Ev. 71, et seq. But, as we have already intimated, there is nothing in this admission tending to show an assignment —much less a bona fide assignment. No change of interest whatever appears to have taken place; and even if Sherman could be regarded as Westbrook’s trustee or agent, the latter would be bound by his admissions, in a case of this description, where he has voluntarily made him the ostensible principal, and the only one capable of legal action. — Bauerman vs. Radenius, 7 T. R. 664; Gibson vs. Winter, 5 Barn. & Ad. 96. We are also of opinion that under the affidavit of Carson it was proper to examine Sherman upon any fact showing the consideration of the note, concerning which, if he had been a general witness, he could have given evidence. The office of the affidavit is to point out the fact to be proved, and not the evidence of .that fact. The case of Way vs. Billings, 2 Mich. 397, folly illustrates this. Within the range of the affidavit, the party is to be examined like any other witness. It is as competent for him to prove a fact by the admissible declarations of others, as it is for any other witness. He is received by law whenever it is made to appeár that, there is no other competent witness who can testify upon the specified facts. A competent witness here means one competent to testify generally, and laboring^ under no legal disqualification. Where several individuals know the [66] same fact, of course any of them may be called by the adverse party, upon a proper showing. We are asked to give to the statute allowing the examination of parties a strict construction, because it is.an innovation upon the common law, and to restrict parties from availing themselves of its privileges, as far as can be done without violence to its language. It is no part of our duty to interfere with the expressed intent of the Legislature on this subject. The law in question does not impair private rights. We are bound to give it a fair and sensible construo■tion, to cany out the legislative will. With its policy we have nothing to do. But we do not regret any legislation which opens the door to let in the truth. Manning and Ghbistiancy JJ. concurred. Martin Ch. J. did not sit in -this cause. Judgment reversed,, and new trial ordered.