author: *Thompson, J. Livingston, J. Radcliff, J. Kent, J.

text:
    Baker and Rowlson against R. and H. Arnold.
    An attorney in a suit may be examined as a witness to prove the state of an instrument when put into his hands. An endorser of a note is a good-witness to prove the endorsement made after the note was due.
    Assumpsit on a promissory note, by the endorsee against the makers.
    This cause was tried before Mr. Justice Thompson, at the Albany circuit, in September, Í802. The plaintiffs proved by the testimony of their attorney in the suit, the handwriting of the makers, and, by another witness, that of the endorser, who was also the original payee. Having done this, they there rested their case.
    The defendants relied on the note’s having been given on an illegal consideration, and endorsed after it was due.
    To substantiate these points, they proposed to examine the attorney of' the plaintiffs to the following questions :

      1. Whether he haa ever seen the note before the suit was brought ?
    2. Whether, at the time of its commencement, the name of the endorser was upon it ?
    This was resisted by the counsel for the plaintiffs, because tending to a disclosure of facts confidentially communicated to the witness, *as attorney in the [*259] cause. The defendants then said, that they would confine the question to the witness’s own knowledge, and did not wish to extend it to any information derived from, or communicated by, the plaintiffs. The witness then said, he had no knowledge of the note, previous to his being retained by the plaintiffs, nor of any facts or circumstances relating to the matter in question, excepting such as had been confidentially communicated to him by the plaintiffs : but that he had, prior to the bringing the present action, instituted a suit in the name of the endorser payee, against the defendants, which, on account of some unfair practices by them, had been discontinued, and the now pending action commenced shortly after. The defendants then called the endorser to testify that the endorsement was made after the note fell due. The learned judge, however, rejected his evidence upon this ground, that no person whose name is on negotiable paper, and has given it a currency, shall be permitted to impeach it.
    The counsel for the defendants then urged that they would waive all testimony that went to impeach the note in any respect, or the original contract between the parties, or to prove that payment had been made. That they would confine their question to this: “ At what time did you endorse this note ?” But his honor overruled the question as improper. The plaintiffs, then, to repel the suggestions of the defendants, and to prove that they had treated for its payment, read the following letter.
    “ Troy, March ith, 1799.
    “ Mr. Sylvester Bowlsoh,
    “Sir,—
    “ On my return home, I immediately informed my brother of the conversation that had passed between you, Mr. Baker and myself, on the subject of our business; since which, we have been round to all our friends, to see what assistance we could get from them, or what could be done in the business, and I am very sorry to inform you, that we find it a thing impossible to raise the money, as the *situation of several of our friends is, in [*260] some respects, like our own; and people in general here are so much embarrassed, that it is impossible to get them, who have got any money, to advance any upon land - security, which is the only kind in our power to give them; and I know of no possible way in which we can pay it, unless you will consent to take part of it in the lands that I proposed to you. If you will consent to make a discount of 12 1-2 per cent, on the note, which is 330?. this currency, and will take two lots of the land, which will be 500 acres, , at a dollar, which it now stands us in, we will, by some means or other, turn Mr. Baker out the remainder part in money, say 200 dollars, and the rest in such property aa he can realise. I wish you would show this to Mr. Baker, and if he and you will consent to it, I wish you would come on as soon as you possibly can. There will be no occasion for his coming, as you can do the business for him and yourself too.
    (Signed) “ Richard Arnold.”
    The court then charged in favor of the plaintiffs, and she jury found accordingly. It was now moved to set aside the verdict, and grant a new trial, the judge having rejected testimony which ought to have been received.

      Woodworth, for the defendants.
    I understand there has been a decision in this court corresponding with that in Walton v. Shelly, 1 D. & E. 296.

      Court.

    There has.

      Woodworth.

    I have, however, to move to set aside this verdict because the judge overruled the testimony of the plaintiffs* attorney, and because, though the authority of Walton v. Shelly be admitted to its full extent, yet, as the endorser in the present ease was not called to testify to what would invalidate the note, he was not, within the letter or spirit of the case, relied on. With respect to the first point, we are ready to concede; that attorneys and counsel are not to disclose those secrets which ■ their clients communicate. But in this case he was not called on to testify to any such circumstance. Having seen the note, he was asked merely whether he had not seen it in a situation different from that in which it was produced ? This [*261] question, therefore, *does not in the least contravene the general rule. He might have seen it before the suit was brought, without endorsement, and without any communication. If so, he ought to have been interrogated as to that fact. The boundaries of the line of practice in this respect, are accurately laid down in the books. Bull. H. P., 284; Esp. Dig. 717. “ The rule is confined to cases only where the attorney is called to prove facts communicated to him by his client, in the course of business, and, instructing him professionally.”.
    “ A counsel or attorney may be called on to prove a fact of their own knowledge, of which they might have had a knowledge without being counsel or attorney.”
    “ As if the question was concerning a rasure in a deed, they may be examined, whether they ever saw such deed in a different plight; for that is a fact of their own knowledge, but they may not be examined as to the expressions of their client.” Lord, Say and Sele’s Case, decided 10th of Anne, by advice of all the judges.
    “ So if they are to be examined as to the true time of the execution of a deed.” Bull. H. P. 284. ' These authorities go the whole length of the case before the court. Ho communication was desired of the witness as an attorney. “Had he ever seen the note without endorsement ?” This he must have learned when it was put in his hand: he derived his information from that circumstance, and not from any communications made. This, therefore, is perfectly analogous to the rasure in the deed; because, the inspection of the paper furnishes the answer, and the communications of the client are not wanted. lío confidence is violated; a simple fact, arising from the attorney’s own personal observation, is all that is required. The object of the inquiry was to obtain the true time of the endorsement; an object in perfect harmony with the case put in Buller, of an examination as to the true time of executing a deed. The period of endorsement we endeavored to show both by the attorney and endorser. We alleged it to have been after the commencement of the suit; but the testimony of both our witnesses was rejected. If the question was proper, *we were shut out from our defence, and this, [*262] at once, is enough to warrant a new trial. On the second point it is material to inquire whether the court will extend the rule in Walton v. Shelly, so far as to preclude an endorser from speaking, where what he may say does not go to invalidate the instrument, and is, therefore, clearly distinct from the principle of that case. It is necessary, in order to determine whether the evidence was properly refused, to observe, that we entirely disclaimed every pretence of invalidating. All we did was to aver a fact which gave us a right to defeat this suit. So, that admitting the authority of Walton v. Shelly, it does not apply here. To show this, it may, perhaps, be necessary to investigate jvhat is the point of the rule as then laid down: it seems to have been founded on public policy. By examining the defence in that case, and those of a similar description, it will ap • pear that it went to destroy the contract, and therefore, the court said, a man who has sent a note abroad, shall never contradict the instrument he has contributed to render current, and thus vitiate it in the hands of an innocent holder. If the principle be sound, an endorser, if examined for this purpose, should be rejected. But here, no attempt was made to set aside the note: no tendency towards affecting public policy is to be seen. The aim of the defendants was to impeach "the practice of the attorney, and prove that issue was joined before the right of action accrued. The plaintiffs must know when their right commenced, and to evince that, does not touch the instrument or consideration. An endorser may testify to collateral facts, unconnected with the validity of the paper. He may prove payment; for that does not destroy what he has made current. There, fore, policy is out of the question: if it be admitted to operate at all, it must in favor of the defendants. When the plaintiffs commenced their action, they knew they had not any right. The endorsement was afterwards made, to do away the equitable and legal claims the defendants had, to set off what might be due to them from him who had demands against them. To the note itself it is immaterial when the endorsement was made, whether before [*263] or after *it was due; but to the defendants it is material,in the highest degree, for it either affords or takes away their only means of defence. Before the decision in Walton v. Shelly, any disinterested person, not infamous, nor incapable of being sworn, was a competent witness, eaving his credibility to the jury. It was not till then that the principle was narrowed. But as this case steers clear of impeaching the validity of the note, the endorser ought to have been received. The letter of the defendau ts does not impair their defence. If the plaintiffs had not a right of action when they commenced their suit, for want of an endorsement, the letter does not cure the defect, and work as an-endorsement.. It was written under an idea of the" note being endorsed, and that the plaintiffs were legally entitled to sue. If it turn out to be otherwise, the misconception will not vary the rule of law, which ordains that all plaintiffs, to warrant their appeal to a court of justice, must have a lawful claim to what they demand.

      Henry, contra.
    Two points are raised for discussion. The first relates to the competence of the plaintiffs’ attorney to prove the state of the note at the time of the institution of the suit. The second to the competence of the endorser to establish that the note was endorsed after it was due. On the first point, the law has been correctly stated. Whatever facts have come to the attorney’s knowledge by confidential communication, he cannot be obliged to disclose; but to facts derived aliunde, or from his own observation, he maybe compelled to testify". The-application of this rule is the only dispute. The attorney expressly declares he had no knowledge of the note before the commencement of the suit, and such only as was confidentially communicated by the plaintiffs. There can, therefore, bé no doubt as to not admitting him to prove the time of the endorsement. The authority from Buller makes for the exclusion. There the rasure was made after' the deed came into the attorney’s hands, and, consequently, the information could not have been derived from his client, but from his own observation. Where an attorney witnesses a deed, he stands in the same relation to both parties, and is put there for the very ^purpose of testifying. [*264] From the course of the transaction, it appears, the fact inquired into could have been known by the plaintffs’ attorney only from committing the note to him to bring the action; this, therefore, is a confidential communication.' As to the second point, the principle on which the testimony of the endorser was refused, is exactly that of Walton v. Shelly, in 1 D. "& E. and Winton v. Saidler, in this very court, July, 1802. Every argument from policy to be drawn from those cases is applicable to this. If the endorser is to show that the endorsement was made after the note was due, he may totally defeat the recovery. For it lets in all equities which might be urged against the original holder, and may, in .effect, destroy the note, under the pretence of not impeaching it. If so, then the rule of policy is as strong in one case as the other. In addition to this, the defendants, by the letter of Eichard Arnold, acknowledge the debt, and offer a mode of liquidation. The effect, therefore, is not only to recognize the debt, and the right of the plaintiffs,-but to waive every objection as to consideration and time of endorsement. It is a plain avowal that the merits are with the plaintiffs, and surely the court will not grant a new trial to hazard that to which the defendants allow we are entitled.
    Spencer, in reply.
    It would seem from the arguments of the opposite counsel, that our only view was to show that the right to sue accrued after the action brought; the object really is to prevent our being excluded from our equities, by an endorsement after the note was payable, and to let in proof that this was one of the Susquehannah notes, which have been set aside whenever presented. The court will perceive that there was a former suit in the name of the original payee; that, however, was discontinued, because a verdict could never have been obtained in it, the present action then commenced, and a' subsequent endorsement made. That the knowledge of this was confidential, is a mere supposition of the attorney. He imagines, because the note was, before institution of the action, put [*265] into his hands without an endorsement, that, therefore, its being afterwards endorsed, was a confidential communication. We deny that; and so, though we allow the cases of Walton v. Shelly and Winton v. Saidler, we contend against their applicability to this now before the court.

         The inadmissibility of attorneys and other practitioners of the law to testify to facts, the knowledge of which they have acquired from the confidence placed in them as professional characters, being the privilege of the client, (Wilson v. Rastall, 4 D. & E. 753,) whoever stands in that relation, is within the. rule of exclusion. A counsel, therefore, who has moved in a cause, cannot be examined as to the subject of the motion; (Curry v. Walter, 1 Esp. Rep. 450,) nor an interpreter between client and attorney, as to the communications which passed through him. Du Barre v. Livette, Peake’s Cas. 77. Whatever is disclosed for the purpose of a suit is a communication made under the protection of professional confidence, though it he only by way of asking advice; (Wilson v. Rastall, ubi sup.) consequently, the relation of attorney and clie'nt may commence before a suit be instituted, (Gainsford v. Grammar, 2 Campb. 9.) and will subsist after it be terminated. Therefore, though the cause in which the communications were made be at an end, a person who stood in such a relation cannot" speak to those facts in another suit, (Du Barre v. Livette ubi sup.; Wright v. Mayer, 6 Ves. jun. 280,) even when the client is not before the court; (Rex v. Withers, 2 Campb. 578;) as m the case of an action for an escape, brought against the sheriff, the attorney for the original defendant cannot be examined to prove the debt. Sloman v. Herne, 2 Esp. Rep. 695. Whether the information acquired by the attorney or other, be by seeing or hearing is immaterial; the law is the same. An attorney cannot testify to the destruction of an instrument of writing, where his knowledge is derivéd from his own eye-siglit, if he was then acting as an attorney. Robson v. Kemp, 5 Esp. Rep. 52. In this case Lord Ellenborough held that he was bound to be silent “as to all which took place .in the concoction and preparation of the deed, or at any other time not connected with the execution of it,” he being an attesting witness. But Lord Kenyon ruled that an attorney who had prepared a bond and mortgage, might be examined to prove a usurious consideration, because he was, “ as it were a party to the original transaction, which did not come to his knowledge in the character of an attorney.” Duffin v. Smith, Peake’s Cas. 109. "What an attorney obtains his knowledge ofj as to the times, names and dates of a bill of exchange put, into his hands to proceed on, from the delivery of the bill by his client, according to Lord Ellenborough, are circumstances to which he cannot be interrogated. Brand v. Ackerman, 5 Esp. Rep. 116. When an attorney attests a deed, he lays aside his professional character, and can be examined in the same manner as any other witness, as to what passed at the execution of it, but no more. Bobson v. Kemp, nbi sup. As the rule was framed for the security of the client, as to the instituting, prosecuting, or defending suits, and conducting their business, what is communicated after a suit is at an end is not privileged. Cobden v. Kendrick, 4 D. & E. 431. Therefore, a former attorney of a defendant may be called to prove an offer made through him to the plaintiff to settle an account, and pay a sum of money acknowledged by the defendant to be the plaintiff’s due; (Turner v. Railton, 2 Esp. Rep. 414.) and; as the exclusion of his testimony is only as to that which comes from his client, he may be examined to prove the contents of a notice served on him by the opposite side. Spencely v. Shultenburgh, 7 East, 357.
      See also Coveney v. Tannahill, 1 Hill, 33 ; Brandt v. Klein, 17 J. R. 335; Jackson v. M’ Vey, 18 J. R. 330 ; Jackson v. Burtis, 14 J. R. 391; Jackson v. Denison, 4 Wend. 558.

         When an endorser, in an action by the endorsee against the maker, is called to testify for the defendant, may he not be supposed to be speaking against his own interest, and rendering himself liable on his endorsement ? In Carrington v. Milner, Peake’s Cas. an endorser in such a situation was held a good witness to prove the note paid.

       The principle that a party to negotiable paper should not be admitted " as a witness to impeach it, after having prevailed for some years, and been . sustained by a number of decisions, was overruled. See F. & M. Bank of Michigan v. Griffith, 5 Hill, 476; Stafford v. Rice, 5 Cow. 23 ; Bank of Utica v. Hillard, 5 Cow. 153; Williams v. Wallbridge, 3 Wend. 415; Traunott v. Davis, 4 Barb. 495.

   *Thompson, J.

This application is made on the following grounds

1. That the inquiry offered to be made of the plaintiffs’ attorney, was improperly overruled by the court.

2. That the testimony of Boswell Lombard, the endorser, ought to have been admitted under the circumstances mentioned in the case.

With respect to the first point, I think the inquiry offered to be made of the plaintiffs’ attorney, was manifastly improper, and to have permitted it, woidd have been a violation of that rule, which the policy of the law has adopted, that an attorney shall not be permitted to betray a secret with which he has been intrusted by his client. This is the privilege of the client, and not of the attorney. It is necessary to be strictly observed, in order to protect a party in the full disclosure of all the circumstances relative to his cause, without the hazard of having them divulged. This restriction, however; does not extend to facts that come to the attorney’s knowledge before his retainer, or to information derived from any other source than from his client. The inquiry offered to be made from the attorney, was whether the note on which the suit was founded, was endorsed to the plaintiffs, when the suit was commenced, with the avowed object of falsifying the endorsement, and showing the note to be given for an illegal consideration. To judge if Mr. Bacon could answer this question, it becomes '-'material, previously to know at what [*267] time, and from whom, he derived his information; if from his client, and after the commencement of the suit, or after he was retained to prosecute it, the inquiry, I think, would have been improper. Mr. Bacon, on examination, declared, that he knew nothing respecting the note previous to his being retained in the cause, and that all his information relative to it was derived from his client. The authorities cited from Buller and Espinasse, instead of contravening the rule above laid down, are in direct confirmation of it. The cases there put suppose the attorney a witness to a deed produced in the cause, in which case he may be examined as to the time of execution. So, if the question was about a rasure in a deed, or will, he might be asked whether he had ever seen such deed or will in any other plight. And the reason why such question might be asked is ai, the same time given, to wit, because they are facts of his own knowledge, not derived from his client, which manifestly shows the inquiry was relative to facts which came to Ms knowledge previous to Ms retainer, or in some other way than from his client. Was that the case in the present instance ? Directly the reverse. The attorney expressly declared that all his knowledge respecting the business war derived from his client.

The next question for examination is, "whether -Boswell Lombard, the endorser of the note, was a competent witness to falsify his own endorsement, and prove that it was made after it fell due, "and also after the commencement of the present action, with the avowed object of showing that it was m'ade on an illegal consideration, and, of course, void ah initia. This point I think settled, by the principles adopted by this court in the case of Winton v. Saidler, (July term, 1802.) In that case, according to my understanding of it, the court decided, that upon principles of public policy, a person whose name appeared upon a negotiable note, and who had contributed to give it currency and circulan on, should not be admitted as a witness to invalidate it. In that "'case the witness was called to prove the note was made upon a usurious consideration, and of course void .in the hands of an innocent endorser. In the present case, [*268] the object *avowed was general, to show the note was illegal and void. It is not explicitly stated whether the illegality of the note was to be proved by the endorser, or by other testimony. If by the former, he would most clearly be incompetent within the decision in the case of Winton v. Saidler ; and I cannot discover why the same principles of policy do not exist to exclude him from proving a collateral fact, for the express purpose of destroying the note: The note purports to have been endorsed before it fell due. The fact to be established by the endorser was, that it was transferred after it fell due, and, of course, open to impeachment. This was an indispensable pre-requisite; it was an entering wedge to effect its destruction. < If this note was founded on an illegal consideration, the same malady would attend it, if it should pass through the hands of a dozen innocent endorsees, who had taken it in full confidence that it was what it purported to be; and having been endorsed before it fell due, the consideration could not be impeached.^ For the protection, therefore, of innocent endorsees, I think a party to a note ought not to be permitted to give the lie to his own acts, and contribute to the desi ruction of a negotiable note which he has circulated as genuine in all its parts. To say that a party to a note shall be competent to open the door, and progress one step towards the destruction of his own paper, and there stop and become incompetent, will, I think, be productive of uncertainty and endless confusion, and will require refinements, and distinctions, too nice and subtle for general rules of evidence. If Boswell Lombard was the witness to prove the illegality of the note, he was an incompetent wit ness within the terms of the decision in Winton v. Saidler. If he was called to prove a collateral fact, indispensably necessary to be established, and thus aid and assist in in validating his own paper, I think he was incompetent wiiiiin the reason and spirit of that decision. It remains only to be examined, whether he ought not to have been admitted, after the defendants’ counsel had wmived all pretence of impeaching this note, or showing it had been paid, and confined themselves to the simple inquiry, whether the note was endorsed *after the commencement of the [*269] suit. I think, considering it merely as an abstract question, the witness was incompetent to answer it. But the defendants here had abandoned all defence on the merits, and the only object in view being to turn the plaintiffs round to a second action, every fair and reasonable presumption ought to be made in favor of the recovery. If the plaintiffs were in possession of this note, as their own property, and in their own right, when they commenced their suit, the simple act of endorsing, and thereby complying with the forms of law afterwards, ought not to defeat their action. It is not presumable they could commence a suit on this note before they had it. Independent of this, however, it appears from the case, that on the 4th of March, 1799, some time previous to that when the endorsement even purports to have been made, the defendants, by letter; recognized the plaintiffs’ right to this note, made propositions for payment, and treated them in every respect as the real owners. Under' these circumstances, I think the time when the endorsement was in fact made, whether before or after the commencement of the .suit would have been immaterial. And it never can.be sufficient grounds for granting a new trial, to ascertain an immaterial fact.

I am, therefore, of opinion, that the plaintiffs ought to have judgment upon the verdict of the jury.

Livingston, J.

The defendants, on the trial of this cause, insisted that the note was endorsed after commencement of the suit, and to prove this fact produced the endorser, whose testimony was not received. Whether the endorser be a proper witness for this purpose, is unnecessary now to decide; There is great danger in permitting any one whose name appears on a note, which is the subject of controversy, to be a witness at all. The court will not receive him to impeach its validity; and when a fit occasion offers, it will merit serious consideration whether it will not be best to exclude him altogether. It is true, that a man who comes forward merely "to prove when he put his name on a note, does not excite so much detestation, as one who [*270] basely obtrudes himself *to destroy a security to which he has given currency, by affirming that it was given on an illegal, or without • any, consideration. The rule of the civil law, therefore, which says, '•'■nemo albgans suam turpitudinem est audiendus,” is adopted both in England and in this state: so also in Pennsylvania, the endorser and original payee was not permitted to invalidate his own instrument, by establishing a want of consideration, although he was a certificated bankrupt, and not interested. 2 Dall. 194. For my part, it would give me less offence to see such a man expiating his fraud and effrontery in a pillory, than attesting heaven, in the sanctuary of justice, to the truth of asseverations, which at once evince his turpitude, and destroy his credit. Even in the case before us, the payee was to prove a fact different from the import of his endorsement, which, when not dated, is supposed to be made oh the same day with the note, and is generally so alleged in declarations. There was, then, some degree of turpitude in first putting his name on a note to enable the plaintiffs to recover, and then appearing at the' trial to destroy a right of action created by himself. But without hazarding an opinion on this point, I think the fact offered to be proved, considering the use to be made of it, was irrelevant. It is conceded that the defendants did not wish to ascertain the precise time of the endorsement with a-view to any substantial defence, of which the-makers might have availed themselves against the payee, or against the endorser, if the negotiation took place after the note fell due. Their sole object was to show that* the plaintiffs were premature in the commencement of their suit; because, at that time, there was no endorsement on the note. The effect of this would be to drive the plaintiff to another action, in which it is admitted they must succeed. This being the avowed object, the testimony was properly rejected. It is not to be presumed that any man will institute an action on a note not in his possession, and in which he has no interest. Such an attempt can only be followed by certain defeat, and considerable expense. But a note may be delivered to the plaintiffs before a suit. be commenced, *and the payee neglect to endorse it. [*271] Why should a court, in such case, prevent the plaintiff’s title being perfected by a subsequent endorsement, and thus protect himself against the heavy inconvenience of discontinuing his suit, or suffering a nonsuit, on the payment of costs ? A plaintiff is permitted to fill up a blank endorsement, or strike it out altogether in court, to facilitate a recovery; but never is an inquiry made into the real time of making an endorsement, unless for the purpose of showing the consideration illegal, as between the original parties, or to pave the way for a defence which cannot be used against a holder who receives it bona fide, and before it falls due. If the defendants had not abandoned this ground, the proof would have been proper, and it would only remain to say whether it could be made by an endorser; but, having expressly waived every defence arising from the lateness of the 'endorsement, the evidence, in my judgment, was inadmissible. The rule I adopt is this; that a court will ever presume an endorsement to have been in season, and admit no evidence to the contrary, unless as introductory to a defence on the merits, but never for the single purpose of showing the suit was prematurely commenced. I had rather let the payee come in at the trial and put his name on the note for the furtherance of justice, than open a door to investigations of this kind.

But as the defendants did not relinquish the defence arising from an illegal consideration, until all their testimony to this point was rejected, it may be well to inquire whether the source from which-it'was offered to be drawn was proper.

Mr. Bacon, the plaintiff’s attorney, was produced only to ascertain the time of the endorsement. Whether his relation to the parties' exempted’ him from answering the questions proposed, is not absolutely necessary to decide; because, in the view which I have taken of this subject, these questions were impertinent, unless the illegality of the contract could be established. I think, however, that the judge did right in imposing silence on-him after his declaration, “ that he had no knowledge of the note, previous [*272] *to his being retained, nor of any circumstance relating to the matter in question, but such as had been confidentially communicated by the plaintiff-*.” The right which clients have to the secrecy of their counsel, produces confidence and a full disclosure of every fact necessary to the latter’s forming a just estimate of their several cases; courts, therefore, are careful that this trust shall not be abused, and will not permit even willing witnesses, when thus connected, to disclose matters frankly confided to them in moments of doubt and difficulty. Whether he might have derived his information from other sources is here an immaterial inquiry; because, it is proved to have come directly from his client. Mr. Bacon might have advised the plaintiffs that they had a right, being in possession of the note, to commence an action, although it was then not endorsed, and take their chance in getting the payee’s endorsement afterwards. The fact, then, of its being unendorsed at the time of bringing the action if such were the case, was a secret intrusted confidentially to Mr. Bacon, and he ought not to be permitted, after giving such advice, and bringing the action, to defeat a recovery by his own testimony. I can hardly conceive a case in which the privilege of the client more powerfully interposes itself than in the one before us.

The only witness, then, by whom the contract could have been impeached, was the endorser; and he being a party to it, was properly rejected.

Upon the whole, my opinion is, that as no one was produced to invalidate the note, which at one time was the only defence set up, but the endorser, and as his testimony could not be received consistent with our decision in Winton v. Saidler, it became improper to show when the note was endorsed merely for the purpose of compelling the party to bring a new action. This principle is recognized by this court in the case of Platt v. Platt, in April term, 1795, Col. Cas. 36, and Hob. 199, cited in favor of it. “It is regularly true,” says that authority, “ that if the plaintiff will himself discover to the court any thing, whereby it may appear that he had no cause of action when he Commenced it, his trial shall abate; of his [*273] own showing it was against him." On this our court, without coming to a decided judgment, intimated that the defendant could not avail himself of any such matter by plea, unless the plaintiff himself discover he had no cause of action at its commencement. And if not by plea, a fortiori, he ought not to be allowed to give it in evidence. That I may be well understood, I think it proper to repeat, that from the whole of this case, which is not very accurately drawn, it appears that the defendant had no other witness to impeach the consideration of this note but the payee, and that as he was properly rejected, or could not be admitted for that purpose, the defendants, in pursuing the inquiry as to the real time of the endorsement, had no other object in view but to turn the plaintiffs round, by'showing the action was prematurely commenced; for which single purpose I should have admitted no witnesses whatever to establish that fact. For these reasons, and as no injustice appears to be done, I am against a new trial.

Radcliff, J.

The note on which this action is brought fell due on the 31st March, 1799, or at the end of the three days of grace thereafter. The endorsement is • dated the 30th March, 1799.

It appears that on the 4th March, 1799, and previous thereto, there were negotiations between the plaintiffs (who afterwards became the endorsees) and the defendants, respecting the payment of the note; and also that a suit had been commenced before the present suit, in the name of Lombard, the payee, and discontinued on account of some unfair practice by the defendants, as was alleged by one of the witnesses. This evidence was not objected to, and these circumstances proved that the plaintiffs were privy to the original transaction, or acted as trustees for Lombard, the payee. On this ground alone, I am of opinion, enough was shown to entitle the defendants to go into evidence of the consideration of the note.

But the principal point I think is, that Lombard was a competent witness to prove the time the endorsement was ^actually made. This would not im-' [*274] peach the validity of the note, and, therefore, is not within the decision of Walton- v. Shelly, nor of Winton ■ v. Saidler, the latter of which was determined in this court. It was merely preliminary proof} which, if it appeared that the note had been endorsed when overdue, would have enabled the defendants to go into other evidence to impeach it. If no other evidence could be produced to that effect, the note would still be valid, and the plaintiffs would be entitled to recover. The idea of policy on this subject, appears to me to be carried beyond the reason of the rule.

I also think that the questions put to the plaintiff’s at torney, whether he had before seen the note, and whether the name of Lombard was endorsed upon it at the time of commencing this suit, ought to have been answered. It would not have been a disclosure of the secrets of his client, within the sense of the rule which prohibits or excuses an attorney from making such disclosure. • He was not asked to discover any thing communicated confidentially, but to answer a fact which he must have known from his own observation, and which, from its nature, could not be a secret intrusted to him. The endorsement or transfer of a note is a public act, and the discovery by an attorney whether it existed or not, ought, I think, not to be liable to this objection. The authority of Buller, which has been mentioned, is, in my view, to the same effect. I im, therefore, of opinion, there ought to be a new trial. Bull. N. P. p. 284, 288; Esp. Dig. 717.

Kent, J.

The motion to set aside the verdict in this cause rests upon two grounds:

1. That the court overruled certain questions from being put to the plaintiffs’ attorney as a witness.

2. That they rejected the endorser as an incompetent witness for the purpose for which he was- called.

With respect to the second point, (for I shall pass by the first at present 'as unnecessary to be considered,) I do not think that the decisions of this court in the cases of Winton v. Saidler, and Stewarts v. Currie, (July term, 1802,) go so far as to warrant a rejection of the endorser in the ■ present instance. In those cases, the maker of the [*275] note *in'the one, and the endorser in the other, were offered to prove the note to have been usurious. Those witnesses were therefore, called to invalidate the paper they had signed. So, in the case of Walton v. Shelly, (1 D. & E.,) upon the authority of which I presume the above decisions of this court were founded, the endorser, who was rejected, was called to prove the note void by reason of usury.

In all those eases the testimony of the witness produced went directly to destroy the paper. Here the question went no further than to defeat the present action, by showing that it had been prematurely brought. Proof that a note was endorsed after it was due, might indeed lei in the party ■ to an examination of the consideration. But this consequence does not necessarily follow. The object of the party may be merely to set up as a defence payment to the original payee. And if it did necessarily follow, still it ought not to exclude the. witness, because the testimony that he gives does not violate the sanction which his name had given to the paper. The sanction his name gives is, that the paper is valid, because the transaction is legal and honest,- and he must say nothing that contradicts this. Whether the date of the endorsement be, or be not, correctly filled up, is a matter in which the endorser has no concern, nor to which he is considered as having added his assurance, because it is now the established usage for the endorser' not to date his endorsement. It is generally in blan7c, and the holder fills up the endorsement afterwards, according to his convenience. The testimony of-the endorser, as to the time of. the endorsement, does not, therefore, as of course, or by any direct or necessary consequence, affect the validity of the note, or violate his plighted faith, to the world. And because it may possibly lead to other testimony that will impeach the note, is surely not enough to render the witness incompetent. It would be carrying the principle in Walton v. Shelly, and the decision of this court in pursuance of it, beyond all precedent, beyond every dictum, and would lead, as I apprehend, to manifest inconvenience in the administration of justice. *It has been the bent of the courts for a [*276] century past, to enlarge the rule respecting the competency of witnesses. It must be a present and vested, and not a future and contingent interest, that excludes a witness. He must be interested directly in the event of the cause, and not merely in the question put. These are instances in which the rule as to interest has been straightened, and defined with the utmost clearness and precision. And I could wish to see this other rule of witnesses being incompetent, on grounds of policy, rendered equally manageable, by being reduced to limits susceptible of equal definition and certainty. To do this, we must adhere strictly to the cases which produced the rule, and exclude only the witness who is called to impeach his own paper, by showing it to have been immoral or illegal when he put his name to it.

My opinion, therefore, is, that the witness offered was competent to answer the question put, and that there ought to be a new trial, with costs to abide the event.

Lewis, Ch. J. concurred.

New trial granted.

         See this principle acknowledged, Smith v. Pickering, Peake’s N. P Cas. 50.

       See this case 3 Caines’ Rep. 279.


source: Caselaw Access Project

author: Radcliff, J. Thompson, J. Lewis, Ch. J. Kent and Livingston,

license: Public Domain

text:
    Lawrence, Jun. and Whitney against Van Horne and Clarkson.
    Uiíder a general policy on goods, the assured need not disclose that his interest is only of an undivided part, but may recover according to his interest. If a vessel be captured and acquitted, the assurer is liable to the expenses incurred in prosecuting an appeal, interposed against the sentence' condemning the assured in costs, and to obtain compensation for damages occasioned by plundering and embezzling, though the expenses surpass the amount of the underwriter’s subscription.
    A paper noticed to be produced and called for, is in evidence, and the party noticing has not a right to first inspect it. Whether the expenses incurred in an appeal are reasonable or not is matter for a jury.
    This was an action on a policy of insurance, dated the 28th of April, 1797, on the cargo of the schooner Hymph, on a voyage to L’ Anceveau, in St. Domingo. The declaration was for a total loss by capture, with an averment that the assured had labored for the recovery of the cargo, and expended 4,000 dollars,- of which the defendants’ proportion was 250 dollars, a sum equal to that of their subscription, which was for 250 dollars only.
    The invoice of the cargo, including the premium of insurance, amounted to 12,061 dollars; the plaintiffs’ interest a third; but this circumstance was not specified in the policy, which was general, without any disclosure of the rights of others in the subject insured; theirs not being intended to be protected by the instrument.
    From the facts, as given in evidence on the trial, it appeared-that the vessel sailed from Hew York the 1st of April, 1797, on the voyage insured; that she was [*277] captured by a Spanish privateer, and ^carried into a port in the island of Cuba, where she and her cargo were libelled, but ordered to be restored. The court, however, sentenced the claimant in costs, to the amount of 1,500 dollars. The captain thinking this unjust, and finding not only the cargo one third plundered, but his vessel stripped of almost every thing, appealed from the decision to the court in the Havanna, which ordered the captain of the privateer to make good all deficiencies in the cargo, and that these should be ascertained by comparing the invoice with the amount of the sales which had taken place under an order of the couit below, where they remained. Still, however, nothing wa.3 said of the costs, and the captain, after having appealed tv Madrid, came away.
    Of the capture, and various steps thus taken, he gave the earliest information to his owners, and the assured in the present policy, who immediately, on knowing of the vessel’s being carried in, made their abandonment, which the defendants refused «to accept. The plaintiffs, therefore, continued from time to time to direct the measures to be adopted by the captain, and paid one third of the bills he drew. The circumstances and situation of the vessel in Cuba, were proved to have been known and conversed on in one" room used by some of the underwriters on the present policy, but not by the defendants, though it was also in evidence, that the conversations in one room are, for the sake of general information, carried and communicated in the other. The defendants gave notice to the plaintiffs to produce a letter on the trial, which, when it came on, they\ refused to do, unless the defendants would engage to read it in evidence. This they declined acceding to, without being first permitted to inspect it, and on its being denied, the judge before whom the cause was heard, ruled that the inspection could not be demanded, except on the terms which the plaintiffs wished to impose.
    After this the trial went on, and the jury, in conformity to the opinion of the court, found for the plaintiffs, making, however, a very considerable deduction from the amount of the charges claimed.
    *To set aside this verdict, and grant a new trial, [*278] a motion now was made.
    Pendleton, for the defendants.
    The question, whether the underwriters are liable for expenses incurred in the prosecution of a suit for damages, after restitution, and a decree of acquittal when the captain appeals for damages, but does not say on what account. His own affidavit mentions, “ that after several trials, it was finally decreed, on the 8th of March, 1799, that the vessel and proceeds of the cargo, should be restored to this deponent, and that any deficiency in the cargo should be made good by the captain of the privateer, to be ascertained by comparing the invoice with the account of sales of said goods, but no damages or costs were decreed." It is no part of an underwriter’s contract to be answerable for damages on an appeal. The policy gives the assured a right to use exertions for saving the property, but after a decree to restore, the underwritten proceeds at his own risk. However, should it be otherwise, and the assurer be responsible, here the assured has not conducted himself so as to be entitled to demand any compensation from the underwriter. From August, 1798 to January, 1800, there is no application to pay any thing yet, for that time, the assured were informed of all circumstances, and bills were continually drawn upon him during the whole period. The assured ought not to have paid bills, given directions, and thus interfered, without the approbation of the assurers; because, if they are to be charged, he was making them liable out of the policy, and for what they did not engage. It is very loosely stated that the underwriters knew of the proceedings going on ; mere possible hearing of conversations and facts. But it is not any notice, unless informed of particulars, of and for what the proceedings were going on. It is assigned as a reason for abandoning, that the underwriters had assumed to pay all expenses; here they were not put in a situation to make that election. There is also a point of law in this case arising from the manner in which the insurance is made. It is a joint adventure, by three persons interested. The action is by one of the parties, and the declaration [*279] is, *that he is one third interested in the policy. When the insurance is on a cargo, it may be questioned whether he can make such an insurance, unless the policy be one equal undivided third part of the cargo. One witness says he was not insured: but under this policy there is nothing to hinder Mm from claiming a part. The averment ought to have been special, and so ought the policy, if any one person meant to insure a separate interest. It is conceived also, that the judge has mistaken the point of law with respect to the calling for papers. He ruled that when a paper is called for, the party cannot examine it to see if it is evidence, before he uses it in the cause. But he is no more obliged to use it- than he is an answer in chancery. Here the plaintiffs would not produce the letter, unless the defendants would agree to read it as evidence. This they declined, unless they were permitted first to read it; and the court determined that the defendants had no right to a previous inspection.

      Riggs, Hoffman and Troup, for the plaintiffs.
    We shall reverse the order in which the points have been brought forward by the defendants’ counsel. We shall first speak to that which has been last insisted on ; the misdirection of the judge'relating to the paper called for. On this subject there is no case in the books, except the one in Espinasse, (Sawyer v. Kitchen, 1 Esp. Rep. 209,) and that does not apply. The point comes to this, that a party is entitled to look at every paper in the plaintiffs’ possession. When an application is made for papers in the possession of another, the notice to produce them is on account of a previous knowledge of their existence and contents. It is done, therefore, on this principle, that there is a conviction they contain evidence useful to those who give the notice. If the adverse party does not produce it, the other side may offer testimony of its contents should the party noticed, be ready to give the paper in evidence, it does! away the necessity of paroi evidence of its contents, to entitle to which, is the only reason why the notice is given. When the paper is called for, it is at the peril of the party who does so, and when so called for, if produced at all, even to [*280] the adverse party, *he ought to be'compelled to read it in evidence. The attempt of the defendants, and the objection raised upon it are mere speculations, . and, therefore, not to be favored. To adopt the doctrine contended for by the plaintiffs can induce no injury, but that of the defendants can produce no good. ' It affords an opportunity of inspecting, without any determinate view ; if the paper is favorable, it is read; if unfavorable, rejected, and thus every scrap of writing in the possession of another is to be ransacked for the benefit of his adversary, without his even knowing whether it is to do him good or not. In the second place, as to the question made of the right to maintain an'action for a third part. Every man who is an owner of an undivided part, may insure his part, and bring an action on it: for a joint connection will not prevent the insurance of what one has. The insurance need not express it to be an undivided part. The contract is so drawn for this very purpose; it is general, As well in his own name, as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part, or in whole, does make insurance, and cause himself and them and every of them,” &c. The engagement is to be applied as the interest of parties present themselves, for their several interests or« covered by one policy. This construction does not mill tote against the principle that he who thus insures shall, ai the trial, recover according to his interest; on'the contrary, that, very rule is founded on the principle.- With respect to the first point raised by the defendants’ counsel, whether the insurers were liable for expenses in a suit on an appeal for damages, after a restitution and decree of acquittal, per haps, if the word was taken in the full and large sense of acquittal, and the appeal had been for imprisonment, or personal damages, the insurers would not have been bound. Yet, when the party prosecutes and partially obtains recompense, he then may appeal for damages, in the same manner as for restitution, if the whole had been condemned. The property was not so acquitted, as to permit the captain to proceed with his cargo, in the same manner *as if it had been restored, though charged. [*281] Even then he might have appealed for his charges; but it was not so restored; it was plundered of one third, and two thirds only of the whole were restored. On this account, and for this the appeal was instituted. If it was the master’s duty to litigate, it was his duty to appeal, in order to get the whole property. If a contrary coarse had been pursued, and the two thirds had been received without an appeal, the defendants would have called on him for the third he had neglected, as they would have insisted that the clause is obligatory. The vessel was stripped of her sails, and, therefore, she could not have gone on with her cargo, though the captain had been willing to relinquish the one third plundered. If this be a restoration to make invalid his endeavors to get the third plundered, it would be very difficult to say what a restoration meant. The charge stated in the case, takes away the necessity of any further argument. The point for the jury was, were the circumstances such as to justify the appeal? Whether done with or without the knowledge of the assurer, was a matter given in evidence, and, therefore, left to the jury. But let it be remembered the abandonment was not accepted, and therefore the assured were obliged to adopt such conduct as would establish the right of the assurers, or themselves. The defendants ought to have taken the, abandonment, to entitle themselves to find fault with the appealing of the plaintiffs. If the captain’s conduct has' been prudent and discreet, every part of it renders the insurer liable.
    It is a general principle that the bona fide conduct of the captain charges the underwriter. From the circumstances in evidence, and set forth in the case, it is probable the defendants had notice, and on that probability the jury are to determine. The non-objecting of the defendants, when they knew what was going on, was an acquiescence on their part. The quantum of the claim was also taken into consideration by the jury, and they struck off a part, amounting to several thousand dollars. Suppose the whole had been destroyed, would not the captain have [*282] been justified *in instituting a suit for damages, and there the suit could not have been for restitution, but in terminis for damages. As to the formal objection made by the defendants, that the action was not maintainable, the insurance being general, and the suit for only one third. Whatever weight might be in the objection itself, though that it possessed any is not very evident, it, at all events, comes too late. The present is an application for a new trial, and, therefore, the objection not to be attended to now. Does the judge below decide on rules of practice? This objection does not touch the merits, but is merely a question of practice: the defendant, therefore, to avail himself of it, should show that he has suffered an • injury by it.

      Hamilton, in reply.
    It is of importance that the latitude taken by the assured in charging underwriters, through the general agency given by the clause under which the present hopes are founded, .should be in some degree confined. The plaintiffs never asked whether they should proceed or not, but continued for two years defending without any personal authority. The increase of expenses was more than the whole value insured. However principles might warrant such a case, it ought not to conclude them. The question was, whether the parties had. proceeded without authority. With regard to the interest insured, it deserved the interpretation of the court. Policies no doubt have a certain degree of latitude; they may cover various interests; such as are equitable, and even those which are undisclosed. ■This was an agreement for an insurance of a part, and it must be allowed; but then L ought not to cover the whole, when there is a joint interest. When it does so, the whole must be intended to be secured by a party insuring generally, and not that it is for his separate interest. What that interest is, he should specify; the contrary leads to fraud; because, if the vessel arrive safe, a return of premium might be demanded. Several policies might be effected by the several proprietors, each for the whole, and unless discovered, the subject of insurance might be paid for ten times over. But nothing can justify the plaintiffs’ pursuing *the conduct they adopted at [*283j the defendants’ expense. Whether the power to charge the underwriter at all, under the clause of the policy now insisted on, did not terminate the instant he had notice of the disaster, is, perhaps, the true point in question. The authority was immediately on notice, perfectly at an end. The right to charge the assurer, previous to notice, would exist without any clause; there would, and must be, an implied agency. The supercargo, or captain, would, from his situation, be constituted the agent of the parties concerned. The interests of all give him a right, according * to foreign authors, to act from necessity. The clause was merely to affirm that principle inherent in the nature of the circumstances, and flowing from them: to remove a doubt which hung over the case of abandonment, whether the acts of the agents of the assured should not be construed a waiver of the abandonment that had been made. This implied agency could not, in strictness, continue after the abandonment. If an election to abandon be made, the right to act for the underwriter will be destroyed; if it be not made, the assured, as owner, must act for himself. After abandonment, reason appoints the assurer to act over his own property and interest. If a part be uncovered, then the assured may pursue for that, but not so as to charge the underwriter It was not intended to say that the acts of the master, if left to himself, would not bind the underwriter. For he would continue or become the agent of him, in whom, after abandonment, the property vested. The orders given by the assured in this case, are like those in cases of two routes in the iter: a direction to pursue one, by destroying the captain’s. right of discretion, creates a deviation. No argument can be raised against the defendants, from the circumstance of their not objecting to the intermeddling of the plaintiffs; there was a joint interest, and, therefore, the unassured might act for the preservation of their own ; and, in such a case, could the silence of the underwriter be construed into an acquiescence ? for a mere silence of this sort could never create an authority [*284] to charge. With respect to the decision *of the judge at nisi prius on the point of evidence, he relied on the case from 1 Espinasse, 209.

         The underwriter never can he called upon to pay more than he has received a premium for.

   Radcliff, J.

Several questions have been made, which may be considered in the following order:

1. Whether the insurance, which was general, can apply exclusively to the interest of the plaintiffs, that being an undivided third part of the cargo ?

2. Whether the defendants are at all liable for the expenses which accrued subsequent to the acquittal, and in prosecuting the appeal for damages?

3. Whether the defendants were not entitled to inspect the letter called for by them, and to elect whether it should be read in evidence ?

4. Whether the expenses in prosecuting the appeal at Cuba were reasonable, and ought to be allowed?

As to the first, I consider it well established in practice, that the assured is not required to state the particular interest, or proportion of interest, which he intends to have insured. It is sufficient if he have an insurable interest to the amount in question. Whether it be a distinct, or an undivided share, cannot be material. It may often be difficult to ascertain his interest with certainty. The owners were at least equitably entitled to their shares in severalty; the interest of each, I, therefore, think, ought to be permitted to be severally enforced. In the present case it appears that the insurance was in fact so intended, and a witness, who was one of the partners, testified that the plaintiffs had no authority to insure except on their own account. The danger of fraud from this practice, I think is remote, and less to be apprehended than the inconveniences which may arise from a contrary rule.

2. As to the second objection, I see no reason why the defendants should not be liable for the expenses attending the prosecution of the appeal in Cuba, which was conducted with good faith and for their benefit. I am informed that it was decided by this court in April, 1795, in the case of Smith v. Scott, that an assurer is liable for similar expenses, beyond the amount of his ^subscription, [*285] and I believe that the underwriters have in practice, uniformly acknowledged their liability. The appeal in the present case, I think, was justifiable. The captain was condemned in costs amounting to about 1,500 dollars, one-third of his cargo was plundered, and the vessel stripped of everything necessary to her equipment. The restoration of the vessel and cargo in that condition, was a little better ';han a total loss. There is no direct evidence that the defendants afterwards had notice of the -proceedings, but' I think it may be fairly presumed. The capture was well known to them; an abandonment was made, and the proceedings were frequently a subject of conversation between other underwriters on the same policy. The defendants did business in the sam'e coffee-house with those underwriters, and though in a different room, it is proved that it is usual for underwriters on the same risk to communicate to each other the information they receive. From these circumstances, I think actual notice to the defendants may be presumed; if, then, they had notice, and did not signify their dissent, they ought clearly to be held liable to the result.

3. As to the third point, I see no reason to change the' opinion I entertained at the trial. A party who gives notice to produce a paper in evidence, must be supposed to know its contents. If he does not, he ought not to be permitted to speculate through the forms of law, and obtain from his adversary the inspection of any paper or document he may choose to demand. Such a privilege would be liable to abuse, and, I think, neither correct in principle, nor consistent with the form of proceeding in such cases. The notice to produce a paper, requires it to be produced in evidence, and when once called for and produced, it is of course in evidence, and I think it cannot be called for on any other terms. I understand this to have been the practice of our own courts, and no question has arisen upon it to my knowledge, until a late decision of Lord Kenyon at nisi prim, which suggested the idea now maintained by the defendants’ counsel. Sayer v. Kitchen, 1 Esp. Cases, p. 210. It may be .questioned whether the point decided in that case, is similar to the present. Without examin[*286] ing *this, it was an opinion at nisi prius, and of itself no authority; and in addition to what has been said, I think the alternative that the party giving the notice, if the paper be not produced, may go into evidence of its contents, shows not only that he must be supposed to be apprised of them, but that he cannot have it in his power to compel a previous inspection. If the paper be refused or withheld, he can do no more than give inferior evidence respecting it; Neither the court nor the party can enforce its production for the purpose of inspection, or any other purpose.

4. Whether the expenditures in prosecuting the appeal in the island of Cuba, were reasonable and proper, under the circumstances of the captors’ situation there, was distinctly submitted to the jury, and if extravagant or improper, they were directed to make such deductions as in their opinion should appear reasonable. They have, in fact, made a considerable deduction, and I cannot say that they have not done right, or ought to have deducted more.

I am, therefore, of opinion, on all the points, that the plaintiffs are entitled to recover according to the verdict as it stands.

Thompson, J.

I concur in the opinion given, except as to the third point. I am inclined to think the defendants were entitled to an inspection of the letter they had given notice to produce, without stipulating that they would afterwards read it in evidence. The practice of giving notice to produce papers, as in the present case, has been introduced to save the expense of going into chancery for a discovery, and I can see no good reason why the party ought not to be entitled to all the advantages he would have, had he resorted to his bill in equity. In that case, after a discovery, he might exercise his discretion whether to use it as evidence or not. I do not think this right of inspection would be liable to the abuses suggested by the plaintiffs’ counsel, that it might lead to an impertinent inspection of papers having no relevancy to the controversy. The party calling for the paper, must appear in the first instance, to have an interest in, and right to, it; he must give notice to produce it. This notice must contain % description of the paper with convenient [*287] certainty, and it must be proved to be in the possession of the opposite party; after which it would be competent for the party having the paper, to object against the introduction, or the proof of its contents, as being illegal or irrelevant, in the same manner as if the party calling for the paper had been in possession of it, or as might be done with respect to every other piece of testimony. To require a stipulation, at all events, that the paper should be read in evidence, might, in many cases, compel a party to introduce testimony against himself. This would be unreasonable, and I think liable to much greater abuse than permitting a previous inspection. So far as the decision of Lord Kenyon ought to have influence on determining this question, we have it in the case of Sayer v. Kitchen, at nisi prius, 1 Esp. Oases, 209. The defendant had given notice to the plaintiff to produce his books, and after having inspected them, declined using them as evidence. The plaintiffs’ counsel then insisted, that the defendant having called for the books, they were in evidence before the jury. But■ Lord Kenyon said, it did not make them evidence; that if the counsel on one side called for the other’s books, and made no use of them, that it was only matter of observation" to the counsel on the other side, that the entries there were in favor of his client, but did not entitle him to use them in evidence. Although .this decision is in no way binding on this court, yet I think the rule there laid down, is founded in good sense, and best calculated to answer the ends of justice, and, therefore, proper to be adopted. Had the plaintiffs in the present case, entirely refused to produce the letter, there can be no doubt the court could not compel a specific compliance with the notice, but could only have permitted the defendants to go into proof of its contents. The plaintiffs, however, admitted they had the letter, and made no objections against delivering it to the defendants, provided they would stipulate at all events to read it in evidence, which they refused to do before they had inspected it, "and the court decided that the defendants were not entitled to inspect the letter, unless they .[*288] would *afterwards read it in evidence. I think the judge ought to have said to the plaintiffs, if you have a letter, and intend to produce it, the defendants have a right to inspect it, and thus make their election whether to read it in evidence or not. If you refuse tc produce it, the defendants will have a right to go into proof of its contents.

Lewis, Ch. J.

concurred, and on the third point said, he did not consider there was any essential difference between the opinion of Thompson, J. and that delivered by Mr Justice Radcliff.

Kent and Livingston,

Justices, gave no opinion, the former not having heard the argument, and the latter hay lug been of counsel in the cause.

New trial denied.

         See Lawrence v. Sebor, 2 Caines’ Rep. 208, n.

        Watson v. Marine Insurance Company, 7 Johns. Rep. 62, S. P. And in the expenses of labor, &c., may be included those of wharfage and selling the ship. McBride v. Mmine Insurance Compmy, 1 Johns. Rep. 431. But under this clause by which these expenses are recoverable, the assured, or their agents, are not hound to appeal. Gardere v. Columbian Insurance Company, 7 Johns. Rep. 514.

         Decided according to this. Kenny v. Van Horne & Clarkson, 1 Johns Rep. 395.


author: Lewis, Ch. J. Lewis, C. J. Kent, J. Lewis, Ch. J.

text:
    Coulon against Bowne.
    A representation that a man has been a naturalized citizen since a particu. lar year, does not mean that he was so in that year.
    This was an action on a policy of insurance, in which a motion was now made for a new trial, and the only questions were on the materiality and construction of the following representation: “ Mr. Coulon is a naturalized citizen, of the United States “ since the year 1794.”
    Hamilton, for the plaintiff.
    The question turns merely on a matter of representation: there is not any warranty, and the distinction between a representation and a warranty is familiar to every one. As no warranty was made, it affords a presumption that a belligerent risk must have been contemplated by all parties, and that the contract should not stand on the basis of neutrality; otherwise, a warranty would have been inserted. Therefore, though the representation be not precisely clear, nor totally exempt from doubt, no objection can be made on the score of a want of neutrality: for, as a representation is collaterai to the contract, all ambiguities should receive a favorable construction. Let us now see if grammatical construction will not warrant the construction for which we contend. Since is contrasted to then, and plainly signifies he was not a citizen in 1794. If he had meant that he was a citizen in 1794, he would have said “ever since” This interpretation accords with the residue of the sen-[*289] tence. Transpose the words and put them *in their natural order. “ He is a“ citizen of the United States since 1794.” Otherwise he must have said, “has leen,” or “ ever since.” This is natural. Let it be remembered he is a Frenchman, and translates his own language into bad English. Had he said, “depuis mille sept cent “ quatre vingt quatorze,” the sense would have been clearly exclusive of 1794. At least, this ambiguity would set the underwriter upon inquiring whether the emigration was before ’94, or ’98, to render it material.

      Hamilton.

    May I consider that case as the settled doctrine of this court ?

      Hamilton.

    As that case goes the whole length of this, it is unnecessary for me to argue any further in support of what is already decided, for omne majus in se continet minvs.

       The first act prescribing two years’ residence, passed 26th March, l1? 90 Then came the law of 29th June, 1195, ordering five years. This was fol lowed by the act of 18th June, 1198, requiring fourteen years, and, lastly that now in force, ordaining a period of five years.

   Lewis, Ch. J.

In Duguet v. Rhinelander, it was decided, in the court of errors, that though the emigration be flagrante ledo, and the naturalization afterwards, it is sufficient to answer the warranty of neutrality in a policy of as surance. *

Lewis, C. J.

Certainly. This bench did think other wise, but their judgment was overruled in the court above and they are bound by that decision.

Pendleton, for the defendant.

The case may be divided into two points. The naturalization of the plaintiff, and the materiality of the representation. On the first point, the question is, what ought to be understood by the representation : if the opinion is according to the usual meaning of the terms, then the naturalization was in 1794, or existing ever since 1794. There is no evidence that it was immaterial : it was material, and if true, that he ought to be considered as a neutral by belligerent parties. Besides, it does not lie with him to say it was immaterial, because it was a wilful misrepresentation. The principle of construction of terms used in contracts, and more so in representations, as being the foundations of contracts, is by taking them in the usual acceptation of the words; the ordinary, and no-t the grammatical. The representation must be taken as an answer; for the underwriter must be supposed to have *asked, ‘''When were you naturalized?” the [*290] answer is, since, or ever since, 1794. It must have been an answer, or why select one period more than another. He must have meant that he was naturalized in 1794, as according to the law of congress then in force, to entitle him to that privilege, his emigration would have been before the commencement of hostilities; and this being so, he would, according to the law of nations, have been protected in his commerce from a neutral country. Great Britain allows the privileges of neutrality to her own subjects, trading with an enemy from a neutral country, if they resided there before hostilities commenced. The representation was to make the underwriters believe it was a neutral risk, mislead them, and affect the rate of premium to be paid. That representations ought to be true and exact, Park, 174,175. If false, and to lessen the premium, it was fraudulent, and being within his own knowledge, it is the same whether the fact be material or immaterial. But the circumstance is very material, as will appear from Park, 180, 182. Hodgson v. Richardson, 1 Black. 463. Fillis v. Brutton, Sit. Guildhall, aft. Hil. 1782. If, therefore, the disclosure was not true, the court will not speculate on the materiality.

Pendleton.

In 1794. The person must have resided two years, and this would carry the emigration back to a period before hostilities. The period of emigration is, therefore, important, as it would determine the national character. The representation was in English, and, therefore, without examining the French translation that has been given, it was a false representation. Notwithstanding it has been decided that a warranty of neutrality is complied with by a naturalization, after emigrating flagrante bello, it is very different from a case, where there is no warranty, and the emigration must, from the representation, [*291] have *been understood to be before hostilities,’and therefore, no naturalization required by the law of nations, the property being protected without it.

Hamilton, in reply.

The case of Duguet v. Phinelander is decisive. To adopt the reasoning of the counsel opposed to me, the court must say that an ambiguous representation, by which neutrality and emigration before hostilities may be inferred, is stronger than an express warranty of neutrality, when the emigration and naturalization are flagrante bello, and not disclosed.

Kent, J.

When did congress pass the first act prescribing terms as to naturalization.

Lewis, Ch. J.

delivered the opinion of the court. The only question arising in this case is on the representation; which, admitting it to be false, cannot avoid the policy, unless it be on a point material to the risk. The decision in the case of Duguet v. Rhinelander is not necessary to be here applied. The only view in which this representation could be material, independent of that decision, is as it respects the naturalization or emigration of the plaintiff, flagrante hello. Now, whether he was naturalized, in 1794, or 1798, must, if considered independently of the period of his emi gration, be immaterial, for in either case, it was a natura lization flagrante hello, and the existence of a war at both those periods was a notorious fact, of which the underwri ters cannot be presumed to be ignorant, and are bound t<? take notice. Carter v. Boehm,, 3 Burr. 1905. 1 Black. 593 But it is insisted that on just construction, the repre' sentation was, that he was naturalized in 1794, for that since means ever since, and then by our law he must have emigrated to this country in 1792, a period preceding the war. If we are to take the word since abstractedly, and ask its meaning, it will be found to signify after. If we take it in connection with the other members of the sentence, we can, by a transposition of a single word, give it the same signification: and when we consider the representation was made by a Frenchman, as was admitted on the argument, and that such transposition will make it a literal translation, I presume we shall be justified in so doing. It will then read, “ Mr. Coulon is a citizen of the United States, naturalized since 1794.”' Thus *will the repre- [*292] sentation comport with the fact. The words since 1794, are, therefore, too equivocal, and not sufficiently precise, to justify the court in considering the words as representing the plaintiff to have been naturalized in and not after 1794. We do not, consequently, consider the representation as materially false, and the verdict ought to stand.

Motion denied.

       See the principles of this decision, 1 Caines’ Cases in Error, xxv. And the report of the judgment below lately published in 1 Johns. Cas. 360.

         See Ely v. Hallett, 2 Caines’ Rep, 60. n.