Tatum v. Lofton

Citation3 Tenn. 115
PartiesTATUM v. LOFTON et al.
Decision Date01 January 1812
CourtTennessee Circuit Court

OPINION TEXT STARTS HERE

On the trial of this cause the plaintiffs [Tatum's executors] produced one Donnelson for the purposes of proving their beginning corner. Donnelson objected to being sworn upon the ground that he was interested, having purchased a part of the land in controversy from one of the defendants. It appeared that Donnelson was the locator and surveyor of the land claimed by the plaintiffs; and that long after these circumstances he purchased of the defendant Anderson, but before the commencement of this suit. The question was, whether, under these circumstances, he could be compelled to give testimony.

Mr. Haywood, for plaintiffs.

It is a good, general rule of law that no man is bound to give testimony against himself; but it is equally true that where the interest arises, after the witness derives his knowledge upon the subject, by some act of the witness or the person against whom he is called, he will be compelled to give testimony. 1 Peake, Ev. 157; 1 Strange, 652; 3 Term R. 27. It were monstrous indeed, if by any act of the witness or the party against whom he is called, the person who once had a right to coerce the evidence would be deprived of the benefit of it. The true rule is, that if the interest of the witness is occasioned by the act of the person introducing him, or by the act of the law, the witness shall not be compelled to give testimony. If the interest arises from the act of the witness he shall be compelled to swear, and surely the principle will operate with infinitely more force when it is recollected that in this case it arises from the joint act of the witness and the defendant. Why is not the subscribing witness who voluntarily creates an after interest protected? Because, as he once was in such a situation that the party had a right to coerce his evidence, he shall not, by his own act, be permitted to deprive another of his privileges. 1 Strange, 652. So if a person lays a wager that such a one will gain his cause, or if he wagers that a person prosecuted will be convicted, he cannot be allowed to say that he will not give testimony when called upon by those against whom he is interested; because, as his knowledge existed before his interest, it was his own fault to bring them in contact. Therefore, if there must be a loser, let it be him who has voluntarily become interested against his knowledge. Skin. 586.

Mr. Whiteside, for defendants.

The rule contended for by Mr. Haywood only applies to instrumentary witnesses. As a general principle, none is better established than that a man shall not be compelled to give evidence against himself. The reason for this is that the law will not put a man in a situation where he will have so great an inducement to act dishonestly. It is certainly contrary to every principle of moral justice that any rule should be established by which a temptation would be holden out for the commission of perjury. Swift, 73, 77. There is no question but that the same reasoning does not apply to the case of voluntary evidence; but it should be an extreme case indeed to justify coercion. Kirby, 203.

The case in Strange, upon which Mr. Peake principally establishes his rule, was the case of an instrumentary witness. The subscribing witness to the note had become the defendant's bail, and was therefore interested. Under these circumstances the court said he might be compelled to give testimony. This decision was not made because his interest had accrued after the plaintiff had right to call upon him as a witness, but because he was a witness of a particular description who had been called upon by both parties to become so. The compulsion used resulted from the necessity of the measure, and the particular circumstances of that and similar cases. But I imagine no case can be shown where the knowledge of the witness has arisen in the ordinary and common course of affairs that he has been compelled to give evidence if he has subsequently become interested. It would be monstrous to say that, because I happen to get knowledge of a certain fact I shall thereby be tied up and deprived in effect of making an advantageous bargain. The law never did contemplate the rule contended for should apply to...

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