Meighen v. The Bank

• Decision Date: 01 January 1855
• Citation: 25 Pa. 288
• Parties: Meighen versus The Bank.
• Court: Pennsylvania Supreme Court

Page 288

25 Pa. 288

Meighen versus The Bank.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Greene county.

Lindsay, Sayers, and Wylie, for plaintiff in error.—The plaintiff produced the certificate. The only possible way the bank could avoid payment was by calling their own officer to negative his own act at a time when he was a party in interest. Was he competent to do this? Did the assignment to his son remove the difficulty? A stockholder on the very eve of the trial assigns to his son $45,000 worth of stock, knowing it would be reassigned the next hour if he desired it, and then appears upon the stand as a witness. This is a mockery of the rule which excludes persons interested from testifying. He had substantially as much interest after as before the assignment. This is one of those flagrant cases that provoked the rule in Post v. Avery, 5 W. & Ser. 509; and if that rule does not exclude the witness it can be of little value.

The witness had a direct interest growing out of the individual liability as a stockholder: see 16th sec. Act 4th April, 1849. He would also be liable over to the stockholders, and the directors could not release him: 2 P. R. 27.

2d. Was it competent for the bank to give evidence of its own usage to defeat a recovery by a stranger? It was insisted that the deposit could not have been made on the 19th March, 1853, because there would have been a discrepancy in the accounts for that day in making up and balancing the accounts in the evening. The jury were left to infer that the accounts of that day were so balanced in the evening, and no discrepancy appearing, therefore no deposit was made. It was the parties' own acts, and should have been excluded on that ground. Facts cannot be proved by general usage: 2 Harris 376.

3d. The reasons on which his belief is founded were not evidence, as that he would have entered it in the receipts, &c., he calls it "his belief." In Carmalt v. Post, it is decided that in questions of credibility and personal skill, a witness may testify to belief, but the rule is different as to facts lying in the compass of memory.

4th. Again, when the witness speaks from the books, he says there is no discrepancy in them on the 19th March, 1853. These books themselves are only evidence between members of the corporation, but not as to strangers: Phil. Ev. 319; 3 Ser. & R. 29. But many of these entries were made by the witness while a large stockholder and interested. Such entry could not be evidence for the bank against a stranger: 2 Watts 141 is full to the point.

5th. This relates to the deposition of Mr. Pennock. He has no personal recollection, the question therefore arises whether the books themselves are evidence. The authorities above cited are sufficient. The case in 1 Rawle 152, upon which the evidence was admitted, is not in point. That was merely to explain one entry by another. The inference sought to be drawn is, that no deposit was made, because no entry of it appears upon the books, and this omission by a party whose interests accorded with such an omission. It is submitted that this was incompetent.

Watson and Purman (with whom were Black and Phelan), contrà.—That this evidence was admitted on well-established principles we think we can show. What the law allows and justifies can never be flagrant. The abuse corrected by Post v. Avery was of a very different character; and permitting a stockholder to assign and testify after release, will not lead to the evils complained of in that case.

The interest under the Act of 1849 is too uncertain, remote, and contingent, to exclude. If doubtful, it goes merely to his credit. The incompetency is to be established by him who objects: 1 Greenleaf's Ev. § 390; 2 W. & Ser. 190.

But the very point is settled in Curcier v. Pennock, 14 Ser. & R. 50. So in 1 Greenleaf's Ev. § 430, a stockholder may be a witness, although he has assigned for the purpose of becoming a witness: 11 Wend. 627; 3 Wend. 296; 18 Wend. 466; 2 Cowen 770; 5 Ser. & R. 318.

2. The position assumed would exclude the proof of custom or usage, for that is always made up of the acts of parties. In Metz v. Detwiler it was allowed to ask, "as to the practice at medical consultations." The answer must necessarily be as to the acts of parties. The usage must be proved from facts: 2 Greenleaf's Ev. §§ 5, 252. Thus a printer may prove the custom of the trade to send a paper till express orders to discontinue it: 1 S. C. 308; 8 Wend. 266; 5 Barr 43. This case differs from Schoneman v. Fegley, because there the witness only spoke of a general practice without reference to the case trying. Although, perhaps, not evidence of itself, it was corroborative of facts proved in the cause: 2 Harris 469.

The competency of the entries made in the books of the bank, supported by the oaths of those who made them. The testimony must be taken together, and then it will be congruous and consistent with the rules of evidence. In 1 Rawle 152 the point is ruled in favour of the admission of the evidence.

(This case was reviewed and cited at length.)

This case appears to us decisive of the question. Without its admission there must be a failure of justice. Mr. Lazear does not only swear from the silence of the books, but from his own recollection: See 1 Greenleaf's Ev. § 437; 3 Pick. R. 96; 3 Am. Com. Law Cases 152; 5 Rand. 666.

The opinion of the Court was delivered by KNOX, J.

That the rule in Post v. Avery, and kindred cases, does not apply so as to prevent a stockholder from assigning his stock after suit brought, and testifying in behalf of a corporation, was clearly shown by Chief Justice BLACK in Hartman v. Keystone Insurance Company, 9 Harris 466. The contingent liability of one who has been a stockholder to the noteholders of a bank, in case of its insolvency, is too remote an interest to disqualify him from testifying in favour of the bank, unless there is some evidence of the inability of the institution to meet its engagements: Willing v. Consequa, 1 Peters 301. Curcier and others v. Pennock, 14 Ser. & R. ...