Taylor v. Beck

• Decision Date: 18 March 1825
• Citation: 24 Va. 316
• Parties: Taylor & c. v. Beck. the Taylor & c. v. The Beck
• Court: Virginia Supreme Court

24 Va. 316

Taylor & c. v. Beck. the Taylor & c. v. The Beck

Supreme Court of Virginia

March 18, 1825

Editorial Note:

The Pagination of this documents reflects the pagination of the original published documents.

These were two appeals from the Superior Court of Law for Caroline county.

Beck brought two actions of debt on two several promissory notes negotiable at the Bank, for $ 500 each, and executed by Taylor, with John T. Woodford and Wm. Woodford as endorsers. The suits were brought against these defendants jointly under the act of Assembly. W. Woodford pleaded for himself, nil debet; and Taylor and John T. Woodford pleaded for themselves, nil debent. Issue was joined on these pleas. W. Woodford was then surrendered by his special bail, and confessed judgment. In one of the cases, the Court gave judgment against W. Woodford on his cognovit actionem. In the other, the Court refused to enter up judgment against W. Woodford, on his confession. At the trial of the issues, the defendants offered to introduce the said W. Woodford as a witness on their behalf; but the Court held, in both cases, that he was incompetent, and excluded his evidence. To this opinion of the Court, the defendants excepted.

The defendants appealed to this Court.

The various and important points involved in these causes, were twice argued with great learning and ability, by Dickinson and Leigh, for the appellants, and by Stanard for the appellee; but the minuteness with which the Court re-viewed all the topics urged at the bar, renders a more particular notice of the argument unnecessary.

Judge Carr. Judge Green. Judge Coalter, concurring. Judge Cabell. The Judges delivered their opinions. ^[*]

OPINION

March 18. The Judges delivered their opinions. ^[*]

JUDGE CARR:

In these cases, two questions have been raised and discussed with great ability and research; 1st. Was William Woodford interested, when he was called to give evidence? 2dly. If not interested, was he incompetent, as being an endorser of the promissory note, which is the foundation of the action. This last point brings, for the first time, before this Court, the celebrated rule established by the case of Walton v. Shelley, and exploded by that of Jordaine v. Lashbrook; a question which, whether we consider the great names it has divided, or its extensive influence on the interests of the community, is of the first magnitude. I shall therefore give it the first place in my examination of the cause.

The case of Walton v. Shelley, 1 Term. R. 296, was decided by the Court of King's Bench, in 1786. It was debt on a bond. Pleas, non est factum and the statute of usury. On the trial, the defendant proved, that the bond was executed in consideration of two promissory notes, endorsed by one Sedley and others; which notes were given up to the defendant, on the execution of the bond. The defendant then called Sedley to prove, that the notes were given for an usurious consideration. It was objected, 1st, that he was interested; 2dly, that independently of the question of interest, he was incompetent, because he was called to invalidate the security which he had himself given. The Court were of opinion, that he was not interested, or rather, that he came to give evidence against his interest; for while the bond existed, he could never be liable as endorser of the notes; but by destroying the bond, that claim might be revived. " But," said Lord Mansfield, " what strikes me, is the rule of law, founded on public policy, which I take to be this, that no party, who has signed a paper or deed, shall ever be permitted to give testimony to invalidate that instrument, which he hath so signed. And there is a sound reason for it; because every man, who is a party to an instrument, gives a credit to it. It is of consequence to mankind, that no person should hang out false colours, to deceive them, by first affixing his signature to a paper, and afterwards giving testimony to invalidate it." He adds, " the civil law says nemo allegans suam turpitudinem est audiendus." The other Judges agreed with Lord Mansfield. It will be seen, from this statement, that the decision was not confined to negotiable paper; but assumed the broad and unqualified ground, that no party, who had signed any paper or deed, should be received as a witness to invalidate it. And so far as the rule is to derive authority from Lord Mansfield, (clarum et venerabile nomen,) it must certainly be taken in its full extent.

In the year 1789, came on the case of Bent v. Baker, 3 Term. R. 27. Assumpsit against one of the underwriters on a policy of assurance. The question was, whether another underwriter of the same policy, could be a witness to prove circumstances tending to shew that the underwriters ought not to pay the loss. The counsel opposed to the admission of the witness, pressed the authority of Walton v. Shelley. Lord Kenyon (who was now Chief Justice, Lord Mansfield having closed his long and high career,) remarks, " It has been said, that a person cannot be permitted to give evidence to invalidate an instrument, which he himself has executed; but I cannot assent to that as a general proposition; for I remember a case of a trial at the bar of this Court, where all the subscribing witnesses to Mr. Jolliffe's will, were permitted to give evidence of the insanity of the testator, at the time of making it. Now, in that case, they came to destroy the instrument they had attested; and though their testimony was ultimately discredited, yet no doubt was entertained respecting their competency." The reporter makes Lord Kenyon add, " that he agreed with his brother Buller, that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by his testimony." But this remark Lord Kenyon expressly denies, in Jordaine v. Lashbrook, that he ever made. Mr. Buller certainly observed in Bent v. Baker, that the rule must be confined to negotiable instruments; and from this time, it was considered as thus confined. In this state, it maintained a fluctuating and precarious existence; sometimes acknowledged, sometimes denied by the Judges at Nisi Prius; till the year 1798, when the case of Jordaine v. Lashbrook, 7 Term. R. 601, brought the question again before the King's Bench; and the rule of Walton v. Shelley, was uprooted from the foundation, and has never since been acknowledged as law, in any of the English Courts. Jordaine v. Lashbrook, has restored the ancient rule; and it is now settled law there, that the endorser of negotiable paper, may be received to invalidate it. See Jones v. Brook, 4 Taunt. 464; Howard v. Braithwaite, 1 Ves. & B. 202; Chitty on Bills, and the late writers on evidence.

How the rule has been settled in our sister States, I have not been able fully to ascertain, not having the books to refer to. So far as I have had it in my power to examine, they differ on the subject. Massachusetts and Pennsylvania, adopted the rule of Walton v. Shelley, (as restricted by Bent v. Baker,) before that rule was changed by the English Courts, and they are understood still to adhere to it. New York, with both the cases before it, adopted Walton v. Shelley, confined to negotiable paper. But the first case on the subject, Winston v. Saidler, 3 Johns. Cas. 185, was decided by a divided Court, three to two, and Kent and Radclif, were the dissentients. South Carolina, it is also said, has adopted Walton v. Shelley; Connecticut and Tennessee, Jordaine v. Lashbrook. These are all the States, of whose decision on the subject I am informed. I have thought this brief history of the rule, not improper, as it is now, for the first time, brought before this Court for a solemn decision.

Let us first consider the rule as laid down in Walton v. Shelley; secondly, as qualified by Bent v. Baker.

It is a general and long established principle, that every person is a competent witness, who is capable of being sworn, has not been convicted of an infamous crime, and is not interested in the cause. The old cases upon the competency of witnesses, have gone upon very subtle grounds; but of late years, the Courts have endeavoured, as far as possible consistently with those authorities, to let the objection go to the credit, rather than the competency, of the witness; and the question now is reduced to this, " is the witness to gain or lose by the event of the cause?" Was the excluded witness in Walton v. Shelley, either interested or infamous? As to the interest, it was acknowledged on all hands, that it formed no objection; he was called to testify against his interest. Was he infamous? All the writers on the subject, and the adjudged cases, shew, that to exclude a witness on this ground, there must be a conviction and judgment against him, for some infamous crime, as treason, some species of the crimen falsi, & c.; and the record of the conviction and judgment must be produced on the trial. The admission of the witness himself, of his being then in prison, under judgment for felony, or of his having been guilty of perjury on another occasion, will not affect his competency, however it may go to his credit. Rex v. Castel Carinion, 8 East. 78; Rex. v. Teal, 11 East. 309; Phill. Evid. 24, 5, 6, and the cases there cited. In Walton v. Shelley, there was no conviction, no crime infamous in the legal sense, imputed even. The witness was excluded, because (say the Court,) " no man shall be permitted to invalidate, by his testimony, an instrument to which he has put his name. It is hanging out false colours to deceive mankind. It is alledging his own turpitude, which no witness shall be heard to do." Now, I say, that a man may be received to invalidate an instrument he has put his name to: that a witness may be heard,...