Coburn v. Odell

Eastman, J. The plaintiff had a good prima facie cause of action; a promissory note, given to him by the defendant, and expressing upon its face a valid consideration ; a — 552 — value received. A promissory note imports a consideration, and that presumption is to stand until the contrary is shown. Horn v. Fuller, 6 N. H. Rep. 511; 2 Stark. Ev. 280; 9 Johns. Rep. 217; Adams v. Hackett, 7 Foster’s Rep. 293. To defeat the action, the defendant undertook to show that the note was given, in whole or in part, for spirituous liquors sold contrary to law, and without license. Was this defence shown by competent and legal evidence ? If it was, it would be good, at least pro tanto ; for it must be regarded as settled in this State that the consideration to be paid for spirituous liquors sold without license cannot be recovered. The sale being prohibited by statute, and the vendor being liable to a criminal prosecution for the selling, the traffic is made illegal, and contracts in respect to it cannot be enforced. Wherever an indictment can be sustained for the illegal sale, there the price cannot be recovered. The penalty attached to the sale implies a prohibition. Pray v. Burbank, 10 N. H. Rep. 377; Caldwell v. Wentworth, 14 N. H. Rep. 431; Lewis v. Welch, 14 N. H. Rep. 294; Roby v. West, 4 N. H. Rep. 287. Assuming that the facts stated in the case were legally proved, it appears that this note was given in part for spirituous liquors, but to what amount is left in uncertainty. The note itself was given for $2,190. At the date of it, an account of $1,816,96, was settled, which formed a part of the consideration, and in that account was included the sum of about eighty dollars for brandy and wine. A further consideration of the note was the giving up of other notes, a part of the consideration of which was spirituous liquors of different kinds, sold in small quantities; but how large a part is left to conjecture. Upon such a state of facts, if the sales of the liquors were made without license, the authorities in this State settle the question that the note could not be recovered. The note was an entire contract; a promise to pay the plaintiff $2,190, which was for board and liquors. The amount of the sales of the liquors was uncertain and — 553 — indefinite. The various sums for board and liquors were all put together, and the promise to pay the whole was one entire undertaking; and where the contract is entire, and a part of the consideration illegal, an action cannot be sustained upon the note for any portion of the amount. Hinds v. Chamberlain, 6 N. H. Rep. 225; Clark v. Ricker & a., 14 N. H. Rep. 44; Shaw & a. v. Spooner, 9 N. H. Rep. 197; Carlton v. Whitcher, 5 N. H. Rep. 196. If, then, the liquors were illegally sold without any license, taking the facts to be as stated in the case, the defence to the note would be good. We have not thought it necessary to examine the question whether the plaintiff could legally sell under the Rockingham House charter, and are content to leave that point upon the argument of the counsel. If he could sell under that charter, then the sales to the defendant were legal, and if he could not so sell, then he would be entitled to his protection as a witness. The whole defence rests upon the ground that the sales were illegal, and if that be not so, the defence at once fails. We must, therefore, start with the fact that all sales of liquors made to the defendant were illegal, otherwise there is nothing to examine in the case. With that fact as a basis, was it proved by competent evidence that the plaintiff made sales to the defendant, and that the amount of those sales formed a part of the consideration of the note in suit ? All that was proved in regard to the matter was shown by the testimony of the plaintiff himself; who, as we think, was improperly ordered by the court to “ state the whole consideration of the note.” This ruling appears to have been made upon two grounds ; first, that the witness having disclosed a part of the subject matter in regard to the consideration of the note had forfeited his privilege and was obliged to state the whole; and, second, that he was not liable to prosecution for the sales at the time of the trial, being protected by section 9, chapter 211 of the Revised Statutes. Examining the latter ground first, we find the section re — 554 — ferred to, to be as follows: “ All suits or prosecutions founded upon any penal statute, which are wholly or in part for the use of the prosecutor, shall be brought within one year, and all other suits or prosecutions on such statutes, within two years after the commission of the offence, unless otherwise specially provided.” This section, when taken in connection with the preceding one, which provides that where the statute gives the fine or forfeiture to the prosecutor, and no person shall prosecute therefor within the time limited by such statute, an information may be filed or an indictment found within one year after such limitation shall expire, and the penalty go to the county, means that the prosecutions embraced by the section are those which are founded upon statutes giving the penalty in the first instance, either in whole or in part, to the prosecutor. And where the suits or prosecutions on this class of statutes are not brought within one year, all other suits or prosecutions on such statutes must be brought within two years after the commission of the offence. . The limitation of two years is to “ such statutes ” — those where the fine or forfeiture in the first instance goes to the prosecutor. The statute regulating the sale of spirituous liquors is a general one. The fine does not go to the prosecutor in any event, but to the county ; and its provisions in this respect do not vary from other general statutes punishing crimes. And we see no reason why, if the limitation of two years can properly apply to the statute upon the subject of licenses, it may not also apply to all other general statutes affecting criminal offences. Upon this ground we think the ruling was wrong. The plaintiff was liable to be prosecuted if he had violated the license law. The rule in regard to the second ground is this : “ A witness is not bound to disclose any facts, or answer any question, which will expose him to criminal prosecution. And he is not bound to testify to any particular fact, if a full ac — 555 — count of his knowledge of such fact will so expose him. If the fact to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is protected. But if he discloses part of a transaction, in which he was criminally concerned, without claiming his privilege, he must then go forward and state the whole. And whether the answer will tend to criminate him, is a point which the court will determine under all the circumstances of the ease, but without requiring him fully to explain how it will criminate him. Unless the court can see that he will not be criminated, the privilege will be recognized and protected. Janvrin v. Scammon, 9 Foster’s Rep. 280; People v. Mather, 4 Wend. 229; Marshall, C. J., in 1 Burr’s Trial 244; 1 Greenl. on Ev. § 451; State v. K., 4 N. H. Rep. 562; State v. Foster, 3 Foster’s Rep. 348, and authorities cited. It is quite evident that the plaintiff was put upon the stand under a misapprehension of the requirements of the act of January 7,1853. Comp. Stat. 437. That act contains provisions for parties to suits to testify as therein stated on the requirement of the opposing party. Different views of the meaning of the statute have been taken by members of the profession, and it is understood that a different construction has been put upon it by the bar in several of the counties. The court, however, have endeavored to settle it, and have at the present term, in Lovejoy v. Jones, ante 164, decided that the statute applies to cas es which have been referred to commissioners, and not generally to all actions. Had the counsel taken this view of the law, it is not to be supposed that the plaintiff would have gone upon the stand as a witness. He would hardly have volunteered to defeat his own action, and his counsel would not have consented to his testifying as a witness. It might, perhaps, be said here, that going upon the stand under a misapprehension of his obligation to be a witness, he could not be compelled to testify when he objected; that not being obliged to testify at all, he should have been relieved as soon as he — 556 — made the objection. But we do not place our decision upon, this ground. Upon the general principles stated, the plaintiff ought not to have been compelled to “ answer and state the whole consideration of the note.” After he was cautioned he made no statement as to the note, but only answered the question that the defendant had boarded with him before the note was given, for which he charged him sometimes four and sometimes five dollars per week. He did not say that this board formed a part of the consideration of the note. Probably it did, but still he may have been paid therefor at the time. He in fact said nothing about the consideration, and the question answered was evidently drawn out from him by the defendant. If a witness purposely states a part of the transaction, such as will make for him or the party calling him, even though but slightly, he should not be protected ; but where it is apparent that he intends to disclose nothing that may require his going farther, and what he does disclose may well enough stand without affecting the point at issue, and, moreover, is drawn out by questions where the full effect of the answers cannot readily be seen by him, his privilege should not thereby be taken from him. If it is, it can be worth but little; for very few witnesses, without the fullest instruction, could, upon the spur of the occasion, readily apprehend the effect of their answers to many questions that shrewd counsel might put; while the counsel themselves might be well aware that the answers would lead directly to the point desired. Here the witness evidently did not understand that what he stated had anything to do -with the consideration of the note. Neither did his counsel; and our impression is that the court must have ordered him to proceed more upon the ground, already considered that the prosecutions for the sales were barred by the statute limitation of two years, than with the belief that he had waived his privilege by what he had stated. But upon whichever ground the ruling was made, we think it was erroneous. No subject can be — 557 — compelled to accuse or furnish evidence against himself. Const. N. H. Part 1, § 15. The testimony, then, by which it was shown that the consideration of the note was in part illegal, being itself incompetent and illegal, the defence fails. It stands as though no evidence whatever had been offered for the defendant; the plaintiff being the only witness called. By far the larger part of this note was undoubtedly founded upon the plaintiff’s account for boarding the defendant, and could be recovered upon a general indebitatus assumpsit count. A promissory note is not payment of a preexisting debt, unless there be an agreement to receive it as such. Jaffrey v. Cornish, 10 N. H. Rep. 505; Johnson v. Cleaves, 15 N. H. Rep. 332; Smith & a. v. Smith & a., 7 Foster’s Rep. 244; Thompson v. Briggs & a., 8 Foster’s Rep. 40; Muldon v. Whitlock, 1 Cow. 290; Schermerhorn v. Loines, 7 Johns. 311; Thompson v. Percival, 5 B. & Ad. 925; Reed v. White, 5 Esp. 122; Brown v. Kewley, 2 B. & Pul. 518. This suggestion can only be important in the event of there being further litigation between the parties. As the case now stands, the defence relying solely upon the testimony of the plaintiff, and that being improperly admitted, there must be, Judgment on the verdict„