Harvey v. Sweasy
| Decision Date | 30 April 1844 |
| Citation | 23 Tenn. 449 |
| Parties | HARVEY & CLAXTON v. SWEASY. |
| Court | Tennessee Supreme Court |
Debt, in the circuit court of Gibson, by Sweasy against Harvey and Claxton, on a note, to which there was a verified plea of nil debet, and issue was taken thereon. It was tried before Harris, judge, and a jury of Gibson, at the November term, 1841, and a verdict was returned in favor of the defendants, and a motion for a new trial was made and overruled, and judgment rendered, from which the plaintiff appealed in error.
All the facts are stated in the opinion of the court.
I. B. Williams, for plaintiff. Coke Litt., 232; Hob. 66; 2 Saund. 48; 7 John. 208; 2 Id., 449;9 Cow. 37;9 Wend. 336; 13 John. 87; 1 Ph. 52.
Totten, for defendant. 8 Cow. 60; 7 John. 208; Chitty on Con., 296, 293; Bell v. Steel, 2 Humph. 148; 2 Thomas' Coke, 453, margin and note c; 11 Vir. Abr., 398; Bos. & Pul., 630.
Richard Sweasy sued Harvey & Claxton, to recover the amount of a promissory note signed by the firm name and style, by John Swain as their agent, and also signed by John Swain as a joint promissor. The defendants pleaded, on oath, nil debet, upon which there was issue. On the trial Swain was offered as a witness to prove the making of the note, and his authority as agent. The defendants objecting to his competency, on the ground that he was a joint maker of the note, and had therefore an interest in fixing the liability of the defendants, he was examined on his voir dire, and stated that the plaintiff had given a written release of all liability on said note, and that he was wholly discharged therefrom by said release, which he then had in his possession, but had not brought with him to court. The defendant objected to this mode of establishing the fact and the effect of a written release, and insisted that it must be produced and proved, and then be submitted to the inspection and judgment of the court as to its legal operation before the incompetency of the witness could be removed by said supposed instrument. But the court overruled this objection, and the witness was sworn and examined in chief.
And the first question is whether the court erred in permitting to be set up, and in giving effect to the instrument in question in the mode adopted. And we think it very clear that the court did err. The instrument was in existence, as the witness alleged, and within his control and actual, but not manual, possession. Its existence, then, should have been shown by its production in court, and its legal effect declared by the judgment of the court. But the witness was not only trusted to prove its existence, but to construe it and establish its legal operation. For he says it was a release discharging from liability. But, however erroneous this mode of proving and giving effect to the release may...
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Kerney v. Aetna Cas. & Sur. Co.
...alleged agent cannot prove the agency relationship, the testimony of the alleged agent is competent to prove agency. In Harvey and Claxton v. Sweasy, 23 Tenn. 449 (1844), a creditor alleged that Sweasy had signed a promissory note, not only on his own behalf but also as agent of the Harvey ......