author: Mr. Chief Justice TANEY

text:
    The Alexandria Canal Company, Plaintiff in error, v. Francis Swann, Defendant.
    Where a case is removed from Alexandria county to Washington county, in the District of Columbia, whatever defenoes might have been made in Aléxandria county, either as to the form of the action or upon any'other ground, .or whatever would have been a bar to the action, may all be relied upon in the new forum.
    But the mode of proceeding, by which the rights of the parties are determined, must be regulated by the law of the. court to which the suit is transferred.
    A reference to arbitrators, therefore, which is sanctioned by the laws of Maryland, governing Washington county, is not to be overthrown because it is not sanctioned by the laws of Virginia, governing Alexandria county.
    The validity of the reference, and of the proceedings and judgment upon it, must be tested by the laws of Maryland.
    Although the charter of a company does not, in terms, give the power-to refer, yet a power to sue and be sued includes a power of reference, that being one of'the modes of prosecuting a suit to judgment.
    So, also, a power to agree with a proprietor for the purchase or use of land includes a power to agree to pay a specified sum or such sum as arbitrators may fix upon.
    It is immaterial-whether the power of reference is lodged in the-president and. directors or in the stockholders assembled in. general meeting; for the entire corporation is represented in couj-t by its counsel, whose acts, in conducting the suit, are presumed to be authorized by the party.
    Where the order of reference provides for the appointment of an umpire, it is no error if he is appointed before the referees had heard the evidence-and discovered that they could not agree.
    Where the agreement for reference contained a clause, providing that upon payment of damages to the owner of the land he should convey it to the otherparty, ■ it was proper for the umpire to omit all notice of this. It was not put in issue by the pleadings, nor referred to the arbitrators.
    This case was brought up, by writ of .error, from the Circuit Court of the United States for the District of Columbia,'in and for the county of Washington. It originated, in the county of Alexandria, and was removed to the county of Washington under an' act of Congress providing for such removals.
    ■ The circumstances' of the case are so fully set forth in the opinion of the court, that it is unnecessary to do more jhan refer to it for a statement of the facts.
    The cause was argued at December term, 1845, by Mr. Bled-soe and Mr. Coxe, for the plaintiff in error, and by Mr. 'William, T. Swann and Mr. Jones, for the defendant in error. At the present term the court gave its opinion.

      Mr.- Bledsoe,- for the plaintiff in error,
    contended, —
    1. That there was no legal or valid reference.
    2. That there was no legal or valid' award.
    3. That there was no legal or valid judgment.
    1. The president and' directors had n'o power under their charter to submit a case to arbitration. The rule is well settled that they have no power except under the charter. 5 Connect. Rep. 5G8 ; 2 Cranch, 158 ; Angelí & Ames on Corp. 200, 201, 220, 242 ; 7 Cranch, 299 ; 14 Johns. 118 ; 12 Johns. 241 ; 15 Wend. 256 ; 7 Cowen, 462 ;T Coweri, 513 ; 12 Wheat. 58.
    The charter (Davi&’s Laws, 558) says, that where land is to bé taken, the co'mpany may agree as to the price. But if no agreement can be made,- they .are to apply to justices of the peace, .who are to call a jury. But in that case the whole twelve must agree.
    The thirteenth' section of the act thus pointing out the mode of condemning land, none other was justifiable. The seventeenth section gives tire company the right to enter upon land, and therefore they cannot be guilty of- a trespass. .
    . One partner cannot bind another by agreeing to arbitrate. Watson on Part. 445 ; 3.Bing. 101 ; 11 Com. Law. Rep. 52; Story on Part. 169 ; 1 Peters, 222, 228.
    The attorney here has undertaken to make the president and directors do things which are not justified by law.
    In England, where property is taken for public use, the party has no remedy ; and in this case the- remedy given by the charter is exclusive. 11 Mass. 364, 365, 368 '; 20 Johns. 735; 4 Wend. 347, 367v 370 ; 4 New Hamp. Rep. 547 ;• 2- Johns. 283 ; 7 Johns. Ch. Rep. 315 1 New Hamp. Rep. 339.

      Mr. Bledsoe then examined the terms and mode of arbitration,

      Mr.. William T. Swann, for the defendant in error,
    made the following points : —
    1. It will be unnecessary to consider any part of the record prior to the submission of the .case to arbitration; as the submission in such a case, undér a rule of the court, operates as a waiver of all exceptions (if any could be conceived), or as a release of all errors” anterior to the rule.
    2. No exceptions having been taken in the, court below'to the award, the grounds of the appeal are unknown ; nor can any, by the counsel in this case, be conceived. ‘But if any objections could be presented, it is now too íate ; they should have been presented either by motion or exception in the court below..
    3. In this case the award is supported by a recital of various matters of procedure under the arbitration in the award itself, .by the certificate of two of the arbitrators, and by affidavits proving such'matters of procedure in the case,. This is a support far be-. yohd what the law requires. A simple award of a sum of money under the submission, without any recital of such facts in the award, and without any proof of them, is sufficient; any omission or irregularity in regard to such extrinsic matters being brought forward by motion’in the court below to set aside the award,

      Mr. Swann,-then examined the record, and contended that the arbitration was according to' law. The other matters of defence, he said, cannot be alleged, here. There is no special plea in Washington county, and we do not admit the facts upon which the argument rests. The charter does not give the remedy spoken of to the party aggrieved, because he cannot originate the process of summoning a jury, &c. 4 Gill &' Johns. 147 ; 4 Wend. 667, 672.
    If the company have power tp enter land without condemnation, it ought to have been specially pleaded,
    A- submission of a cause to arbitration disembarrases it of legal questions. 1 Washington Rep.- 320 ; 10 Mass. Rep. 215 ; 8 Serg. . &• Rawle, 3; 4 Hen. & Mun. 216; 5 Binney, 177. The statute of Maryland, passed in 1778, ch. 21, §§ 8, 9, points out the mode of proceeding by arbitration. It is a common law process, too. The power tareferas a necessary incident to the power to be sued. If the company are sued ■ they can defend themselves in any manner known to the laws. The submission in this case was by the company itself, and not. by the president and directors only. The attorney in court represented the whole company.
    •Mr.' Jones, on the same side.
    ■ If they object to the award they should have moved, in the court below, to set it aside. Otherwise it is presumed to be right. It is too laje to urge the objections in an appellate .court, because, as the court below nevar passed a judgment upon the point, it would make this a court of original jurisdiction. 2 Schoale and Lefroy, 712. When the cause was removed, it was to be tried by lex fon, of which arbitration is a part. It' is denied that the president and directors had any power to submit- the case. But how does it appear that the president and directors did it, and not the company ? A corporation can' only appear by its corporate name. This suit was so brought and they appeared to it. So the power of the attorney is denied. But will the court presume that he acted without-authority ? ' A corporation is liable for a tort. 16 East, -5; Angelí & Ames on Corp. 328, 329 ; 8 Peters, 117.

      Mr. Coxe, for plaintiff in error,
    in reply and, conclusion, examined the history of the law of arbitration, and the statutes of Virginia" and Maryland ; and then contended that an action- of trespass quare clausum, fregit would not lie against a corporation. He then examined the authorities cited by Mr. Jones. If the cor-' poration kept within their charter they-were not suable, of course. If they went beyond it, and appointed agents to do things not justified by law, the agents are responsible. A suit only lies against the employer when the agent is acting within the scope of his'authority. This suit was brought in Alexandria, where the corporation appeared by attorney and filed pleas. When it was removed to Washington an amended declaration was filed, but it was toot a substitute for thé old one, because, the old one remained in court, and so did the former pleas.

      Mr. Coxe then' contended that the reference was improper and illegal, and cited Kyd on Corp. 45, and commented on the charter of the company.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case'is brought here by! writ of error from the Circuit Court for Washington county,1 in the District of Columbia. The suit was originally brought in Alexandria county by the 'defendant in error, against the plaintiff $ and upon the motion of the former was removed to Washington county under Jhe provisions of the act of June 24, 1812, § 3. The points raised in the argument make it proper to state the pleadings more fully than is usually necessary.

It was an action of trespass for breaking and entering the plaintiff’s ■. close, situate in the county of Alexandria. The suit was brought • in July, 1839. The declaration contained but one count, in the-usual form, stating the trespass to have been committed on divers days and times between the 1st. of January, 1835, and the commencement of the suit.

. The defendant pleaded, —first, not guilty ; second, the statute of limitations; and third; that the canal company entered under the authority of the dct of Congress, for the purpose of making the canal; and that it is ready to satisfy any damages to which the plaintiff is entitled, when they shall be ascertained in the mode pointed out in the act of incorporation.

After these pleas were put in, ánd before any replication, was Bled or issue joined, the cause .was removed to die Circuit Court for the county of Washington, by an order passed on the 12th of November, 1841, upon-- the motion .of the defendant in error. The case was continued in that court without any alteration in the pleadings until November1 term, 1842, when an amended declaration was filed. This declaration consisted of a single count, and differed from the original one only in undertaking to set oht the abuttals of the close in which the trespass was alleged to have been committed. The defendant in the Circuit Court pleaded not guilty to this declaration, upon which issue was joined and a jury sworn; but before a verdict was rendered a juror was withdrawn by consent, and upon the motion of the parties by their attorneys the matter in variance between, them was by a rule1 of Court referred to four arbitrators named in the order of reference. The reference was made upon certain terms specified in a written agreement filed in the casé, setting forth the manner in which the arbitrators were to be selected and the damages calculated, with power to the referees to choose an umpire, if they or a majority of them could not agree.

The arbitrators, before they entered upon an examination of the case, appointed an umpire, who afterwards made his award, and thereby awarded that the defendant (in the District Court) should pay to the plaintiff the sum of six thousand nine hundred and sixty eight dollars and seventy five cents, in full satisfaction of all the matters of damage and value submitted to his umpirage. This .award was filet] September 21, 1843, and notice of it regularly served on the plaintiff in error; and thereupon a judgment was entered for the amount awarded on the 17th of January, 1844. It is upon this judgment that the present writ of error is brought.

It appears from the record that no objection was taken to the award in the Circuit Court, nor any affidavits filed to impeach it. Several depositions were filed by the defendant in error, which are not material to this decisipn, except in one particular, which will be hereafter noticed, on account of an objection to the award founded upon it.

The reference to arbitrators and the proceedings thereon, and the judgment given by the court below, were all under and intended to be pursuant to the acts of-assembly of Maryland of 1788, ch. 21, §. 9, and 1785, ch. 30, §.11. It is admitted that these proceedings were not authorized by the laws in force in Alexandria county ; And it is objected by the plaintiff in error that, inasmuch as no judgment could have been lawfully rendered upon these proceedings in Alexandria county, no judgment ought to have been rendered upon them in-Washington ; that the removal of a case under the laws of Congress is a mere change of venire ; and íhat the rights of. the parties are still to be tried according to the laws and modes of proceeding recognized and established in* the Circuit Court for the county in which the suit was. originally instituted.

Undoubtedly, whatever rights the canal company had in Alexandria county, and whatever defences it might there have made, either as to the form of the action or upon any other ground, it might still rely upon them in the new forum ; and whatever would have been a bar to. the action in Alexandria county would be equally a bar in Washington. The question here, however, is not upon the rights of the respective parties, but upon the mode of proceeding by which they were determined ; and this must evidently be regulated by the law of the court to Which the suit was transferred. For after the removal took place the action, according to the act of Congress, was pending in Washington county, tc be there prosecuted and tried, and the judgment of that court to be carried into execution. And as the act neither directs nor authorizes any change in its practice or proceedings in removed cases; it follows that they must.be prosecuted and tried like other actions in that'court, and coujKknot lawfully be prosecuted and tried in any other manner. In impanelling a jury, for example, for. the trial of the facts, it could nof put aside the jurors, required' by law to attend that court, and direct a panel of twelve to be summoned for the particular case, pursuant to the law of Virginia. Nor could it deny to either party the right to strike off four names from the list of twenty, according to the law of Washington county, although the rule is otherwise in the county of Alexandria. And upon the same principles the selection of arbitrators, the proceedings before them, and the legal effect of their award, could be no more influenced by the law upon that subject, on the other side of the Potomac, than the summoning, striking, and impanelling of a jury.. The validity of the reference, therefore, arid of. the proceedings and judgment upon it, must depend upon the law of Maryland and not; upon the law of Virginia. And if the judgment given by the Circuit Court was authorized by the former, it cannot be impeached upon the ground that such proceedings would not have been’ lawful in Alexandria county.

Trying the case upon these principles, it is very clear that as no objection was taken to the award in the Circuit Court, the judgment upon it was correct and iriust be affirmed in this court, unless some substantial objection appears on the face of the proceedings or in the award itself.

It has been urged, however, that it is apparent, bn the face of the proceedings, that the arbitrators committed a mistake in the law ; that the record shows the acts cdipplained of to have been done in execution of the power conferred on the company to construct a canal; and that under the act of Congress, they had a right to enter upon any land they deemed necessary for that purpose, leaving the damages, to be afterwards ascertained in the mode pointed out .by the law ; and that consequently an action of trespafs will not lie.

But it is very clear that this question of law was not before the referees or the court; nor was it in any way involved • in the decision of either. For if the plaintiff in error could have justified the entry upon the ground suggested, the' justification ought to have been pleaded. Arid as this was nofi done, the question as to the legal sufficiency of this defence was not referred to the arbitrators nor decided upon by their award.

It is said, however, that it was pleaded. • This is true as relates to the pleadings filed to the original declaration. But an amended declaration was subsequently filed, and to this the plaintiff in error pleaded anew. ‘ The amended; declaration was not an additional count to the former one, but was itself the entire declaration substituted for the former. And it was evidently so regarded by all parties at the-time. For the plaintiff in error renewed his plea of not guilty, which, he had put into the ^former orie, — omitting, however, his former pleas of Imitation and justification ; and' these two must have been understood to be waived,, for there was no replication to either of them, nor any issue joined upon them, formal or informal. The questions, therefore, which woffff have arisen on these pleas, were not in issue, — were not referred by the written agreement, — and consequently could not have been considered, or decided by the arbitrators.

Neither can the objection be maintained winch has been taken to the power of the company under its charter to refer such a question of damage. The corporation was a. party to the action1 in court,- and it might lawfully, take any step that an individual might take, under like circumstances, to bring it to final judgment;' And a trial by arbitrators, appointed by the court with the consent of both parties, is one of the modes of prosecuting a suit to judgment as well established and as fully warranted by law as a trial by jury.

But independently of this principle and of the pendency of a suit, the ■thirteenth section of the act of Congress authorizes the canal company to. agree to a reference. • It provides that the president and directors may agree with the proprietor, for the purchase, or for ■ the use and occupation of the land for temporary purposes ; and it does not confine the power to an agreement specifying a particular " sum of money. On the contrary, it authorizes an-agreement in general .terms, : And' if the company agree to pay such sum ás arbitrators may award, this agreement is as clearly within the words and intention of the lajv as if 3 specific súm had been fixed upon by the ■parties. We therefore’ see no objection'to the-reference in this case, nor to the agreementbywhich.it was.made..

We do not think it necessary to inquire whether the power to direct the proceedings in the suit and assent to the reference belonged to the president and directors, or to the stockholders assembled. in general meeting. ’ The corporation, however governed in this particular, was the party, deféndant in court, and was represented by its counsel; and his acts are presumed tó be authorized by the party in conducting the. suit. This has long been the settled law of Maryland, which is the law of Washington county.

It is'true that in this case- the agreement for the reference is. signed by the, coilnse). who had appeared for the canal company iii Alexandria, but who did not appear on the record in the Circuit -Court for Washington. Yet-the attorney who- did appear, joined in the motion for the reference, received notice of the award after it. was returned, and made- nd objection to the authority under which the arbitrators had been appointed.. It is too late to make it here, even if it would have-been available, in the Circuit Court.. But as the attorney ón the. record must have united in the motion for the reference, it is'- very clear that the .'objection would have been untenable there, as well as here.

We see nothing, therefore,. in the pleadings or proceeuings anterior to the order of reference, which can impeach the correctness, of the judgment in the court, below. It remains only to examine whether there, is any thing liable to objection in the-proceedings of the referees or in the award returned by the umpire.

The authority of the umpire has been objected to, because it appears, by the affidavits filed by the defendant in error, that he waa appointed before the referees had heard the evidence and disr covéred that they could not agree. But whatever doubts may have been once entertained upon this question, it is now well settled both upon principle and authority that the appointment is good. And indeed it has been said by this court that it is more expedient to appoint the umpire in the first instance, as was done here, than to wait until the evidence was all heard and the arbitrators had finally differed. 8 Peters, 178.

The umpire, therefore, being regularly appointed, the remaining question is upon the sufficiency of his award. There was no.dispute as. to the title" to the land, and upon the issue joined in the case.;, therefore, the only matter in controversy was, whether the acts complained of- had been committed, and if they had, what damage was the defendant in error entitled to recover, This was the onlymat-ter' in variance referred. The written agreement filed by the parties states the principles upon which they mutually agreed that the amount of damages should be calculated ; and the award of the umpire ascertains and awards the amount upon the principles mentioned in the agreement. His award is'Upon the subject-matter referred. It covers the whole controversy submitted to. him, and nothing more; and upon that it is certain and final.

There is indeed in the written agreement for the reference a clause which provides that, upon the payment - for the damages awarded,-the defendant in error should convey to the company the land selected for permanént occupation; and the umpire has taken no notice of this agreement to convey. We think he very properly omitted to noticé it, for it was not put in issue by the pleadings, nor proposed to be referred in the argument filed. On the contrary, the duty of the' arbitrators was limited to the question of damage* - The' value of this land was indeed one of the items they were required to consider in calculating the amount of damage ; but they had no power to award-how or when it should be conveyed. Nor., does the fight of the canal company to the conveyance depend in any degree upon the award or direction of the arbitrators concerning it. Their right is absolute by the agreement, upon the payment of the damages, awarded; and the conveyance may be enforced like any other right acquired by contract.

Upon the whole, we are of ppinion that there.is no error in the judgment of the Circuí'. Court; and it must therefore be affirmed, with costs.

Order.

This cause carné on to be heard, on the transcript of the record from the Circuit Court of; the United States for the District of Columbia, holden in and for the county of' Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs nnd damages at the rate of six per cent per annum.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    Henry D. Bridges, John K. Mabray, James N. Harper, and Stern Simmonds, late Merchants and Partners in Trade, under the Name, Firm, and Style of Bridges, Mabray, and Company, Plaintiffs in error, v. William Armour, Henry Lake, and Felix Walker, Late Merchants and Partners in Trade, under the Name, Firm, and Style of Armour, Lake, and Walker, Defendants in error.
    A party upon the record, although divested of all interest in the event of the suit, is not a competent witness in a cause.
    If a person be declared a bankrupt at • a tíme when a suit is pending to which he is a party, his discharge would not be a bar to his liability for costs upon a judgment obtained, subsequently to his discharge. His liability for costs, therefore, excludes him as a witness upon the ground of interest.
    If the event of the suit may increase the effects of the bankrupt in the hands of the assignee, and thus increase the surplus which would belong to him, he is an incompetent witness.
    This case was brought up, by ifrrit of error, from the District Court of the United States for the Northern District of Mississippi.
    On the 26th of September, 1840, Bridges, Mabray, & Co., gave, their promissory note to Armour, Lake, & Walker, or order,, payable one, day after date, for $3,158.69, being balance of book-account, bearing interest at eight per cent per annum, from the 1st day of August, 1840, until paid.
    The note not being paid, a suit w^s commenced on the 12th of November following. As no question arises upon the pleadings, it will be unnecessary to refer to them. They resulted in several issues of fact.
    On the trial, in June term, 1844, the plaintiffs offered in .evidence the deposition of Walker, a coplaintiff on the record, taken in answer to interrogatories and cross-interrogatories before a commissioner in New Orleans, in pursuance of a stipulation between the attorneys ; and in which the attorney for the defendants agreed to waive any exception for want of issuing a commission, in due form, to take the testimony, or for want of notice of its execution to the defendants.
    It appeared on the trial that Walker had obtained a discharge under the bankrupt act, by which he was discharged from all his üébts owing by him at the time of presenting his petition, to wit, on the 30th of December, 1842. The discharge was granted on.the 12th of May, 1843.
    In one of the interrogatories in chief, the question was. put to the witness whether, or not he had any interest, in the event of the suit, and, if none, in what, manner his interest had ceased. To which he answered, that he had none,, and that his interest ceased on obtaining his discharge.
    The counsel for. the defendants objected to the admission of - the deposition, on the ground that Walker was a party to the record, one of the plaintiffs in the suit; but the objection was overruled, and the evidencé' admitted, to which the.counsel exdepted. The plaintiffs had a verdict.
    The cause waá argued by Mr. Coxe, for the plaintiffs in error, • and by Mr. Chalmers, for the defendants in error.

      Mr, Coxe

    contended,—
    T. That the deposition of Walker, then and still a party plaintiff on the récord, was inadmissible.
    2. That even if. his discharge, under the bankrupt act, could make him a eompetent .witness, it was necessary to establish that fact, as preliminary to the reading of his deposition, and by independent proof.
    Walker’s name is still - upon the record, and he is one of the defendants in error in this court. The general rule upon the subject is clear, and the exceptions are few. The plaintiff in error must bring himself within one of the exceptions. 1 Peters, 596.
    The case in 1 • Peters, C. C. R. 307, was overruled by this court in 12 Peters, 145, where" it is said that the circuit decision is not to be sustained upon any ground,;
    The only excéptíon to the general rule is in cases of tort where there are •‘several- defendants. The court will direct one' to be acquitted, if justice requires' it, in-order that he maybe a witness. 10 Pick. 18 ; 4 Wend. 453; 1 Bayly, S. C, 308; 10 Pick. 57 ; 2 Bayly,. 427.' As to the • extinguishment of his interest by the bankruptcy, see 10 Wheaton, 367, 375,'384. »
    An insolvent party cannot be a witness, but a certificated bank-. rupt may, provided his name be struck out of the record. 9 Cranch," .453, 158. . ■

      Mr. Chalmers, for defendants in error..
    The only question presented upon _,the record in this case is the competency of Félix Walker, a party to the record, whose -deposition had been taken, upon interrogatories, by consent, .after his dis-chargé'under the bankrupt act of Congress, of. the 10th of August; 1841. The suit was commenced 20th of November, 1840, by' Armour, Lake, & Walker (the witness1) against plaintiffs in error-; on the 12th of May, 1843, Walker was discharged ; and on the 24th of May, 1843, his deposition was taken, which upon the trial plaintiffs in error objected to being'read,upon the ground “that the said' Felix Walker is a party to the record,” which objection was overruled by the .court, and .the deposition was read ; to which opinion of the court a bill of exception was taken, and upon it the casé is before'this court. . \
    It will not be seriously urged that Walker, the witness, was incompetent on the ground of interest, he having received his discharge under the bankrupt act, by which his interest was extinguished and so far his competency restored. For whatever .interest he may have had, it was extinguished when'he. was sworn, and could form no objection to his competency. 1 Phillips on Ev. 133,by Cow. & Hill; Tennant -y. Strachan, 4 Carr & Payne, 31 ; 1 Mood. & Malk. 377. Indeed, if it did, plaintiffs in error waived the objection by failing to make it when the deposition was taken, — it being known to them at the time. United States v. One Case of Hair-pencils, Paine’s C. C. R. 400. So when a witness has been cross-examined by a party with a full knowledge of an objection to his competency, a court of equity will not allow the objection. . Flagg v. Mann, 2 Sumner’s C. C. R. 486. But the objection was to the competency of Walker as a party to the record.
    . It is a géneraí rule in all common law courts, that a party, on the record cannot be admitted to testify; the reason of this rule is the interest of the party called, and wherever that can be extinguished the rule ceases. In New York the rule, it seems, excludes the party without regard tó the question of whether he be interested ór ££ot; but see Stein v. Bowman, 13 Peters, 209, 219 ; Worrall n. Jones, 7 Bing. 395 ; Aflalo v. Fourdrinier, 6 Bing. 306 ; Bate v. Russell, 1. Mood. & .Malk. 332 ; Hart v. Heilner, 3 Rawle, 407 ; Scott v. '■Lloyd, 12 Peters, 145, 149 ; Henderson v. Anderson, 3 Howard, 73 ; Smyth v. Strader, 4 Howard, 404.
    In the case of Willings v. Consequa, 1 Peters’s C. C. Rep. 307, Washington, J., says “ the general rule of law certainly is, that a-party to a suit cannot be a competent witness^ ' But it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule, '‘and when that interest is removed the objection ceases to exist.” Mills,’ J., in Lampton a. Lampton’s Executors, 6 Monroe, 617, 618.. Upon a full view of all the. cases, the counsel for defendants in error respectfully contends, .that, the District Court did not err in permitting the deposition of the party, Walker, to be read to the jury, upon the ground of interest, or being a party, and that if incompetent for either cause the objection was waived by not having been made at the taking of the deposition.

       See.those collected in 2 Phillips on Ev. by Cowen & Hill, notes, pages 134-136, 260-266; Haswell v. Bussing, 10 Johns, 128; Schermerhorn v. Schermerhorn, 1 Wend. 125, citing3 Esp. & 3 Campbell; Supervisors of Chenango v. Birdsall, 4 Wend. 453 ; Duncan v. Watson, 2 Smedes & Marshall, 121; 1 Bing 444 ; 6 Binney, 16; 4 New York, 24; 2 Day, 404; 11 Mass. R. 527; 12 Ibid. 258; 16 Ibid. 118; 3 Harr. & McH. 152; 3 Staikie on Ev. 1061, note g.

   Mr. Justice NELSON

delivered the opinion of the court.

Whether a party on the record, divested of all interest in the result of die suit, and therefore- unexceptionable on that ground, is a competent witness or not in the cause, can scarcely be regarded as an open question in this court, after what has already fallen from it.

It is true, as stated by the counsel, in the argument, that in all the cases in which the question has arisen, the party was liable for the costs of suit, and therefore interested ; but whenever the. question has been presented, the language of the court has bpen uniform, that the witness was incompetent on the ground of his being a party on the record; De Wolf v. Johnson, 10 Wheaton, 367, 384; Scott v. Lloyd, 12 Peters, 145; Stein v. Bowman et al., 13 Peters, 209.

In Scott a. Lloyd the court referred to a case in 1 Peters’s C. C. R. 301, where-it had been held, that a party named on the record might be made a competent witness; by a release of his interest, and expressed its unqualified dissent; and in Stein v. Bowman et al. (13 Peters, 209), in winch Bowman, a party, had been admitted, the court, after noticing his liability for costs, remarked, that if he had been released, or a sum of monéy sufficient to cover the costs of suit brought into court, his competency would not have been restored.

The exclusion is placed on the ground of policy, which forbids a party from being a witness in'his own cause, and that this would be the practical effect and operation of a rule of evidence, which would enable a party to qualify himself for a witness by releasing his interest in the Suit. Though nominally discharged by the- release, he would,-usually, be.the real and substantial party to the suit in feeling, if not in interest; thereby holding out to litigants temptations to perjury,, and to the manufacturing of witnesses, in the administration of justice.

The question is one in respect to which different courts have entertained different opinions, and we admit that.the argument in. favor of the admission of the party, úpon the general' principles of evidence governing the competency of witnesses, is plausible, and not without force. But the tribunals which maintain the competency of the party, if divested: of interest, still hold that he cannot be compelled to testify, and, also, that he cannot be" .compelled to testify when called against.his interest; which, upon general principles, if consistently carried out and allowed to govern the question in the admission-of.the party, would lead them to an opposite result. They -should be compelled to testifyfor if the admission, is placed, as it undoubtedly is, upon principles applicable to the admission and rejection of witnesses generally, in the cause, and the party to be regarded as competent when without interest, or indifferent, or when called against his interest, then, like all other witnesses, he should be subject to the writ of'subpoena, and to the compulsory process of the court; and not left at liberty to withhold or bestow his- testimony at will.

There cari be ho distinction in principle, in this respect, in favor of á party to the record, if allowed as a witness at all; and the only ground upon which the court can stop short of going the length indicated, is, by giving- up general principles, and placing itself upon policy and expediency,, as upon the whole best subservjpg, in the instances mentioned, the interests of justice, and of all concerned in its administration,'— a ground which has been supposed, by those holding a different opinion upon' the question, quite sufficient to justify the entire exclusion of the party;

. But the witness in this case is also liable • to objection on the ground of interest. This suit was pending at the time he was declared a bankrupt and obtained his discharge ; and it is quite clear, if the defendants had eventually succeeded, the discharge would not have been a bar to his liability for the costs of' the suit. ''The. judgment would have been a debt accruing subsequent to .the- discharge, which could not have been proved under the act. Act of Congress, August 19, 1841, § 4 (5 Statutes at Large, 443) ; Haswell v. Thorogood, 7 Barn. and Cr. 705; Brough v. Adcock, 7 Bing. 650. His future effects, therefore, would have been liable.

And even if the discharge could have operated in bar of his liability for the costs, the witness was still' interested to procure a recovery in favor of the plaintiffs, as it would to .increase the effects of his estate in the bands of the assignee, to the extent of his interest in the demand in suit, and to increase the surplus, if any, which would belong to him. -

For this reason, a defendant, who has pleaded his certificate, ¡upon which a nolle prosequi has been entered by the plaintiff, is not a competent witness for his codefendant, without first releasing his interest in this fund. .' He would otherwise be interested in defeating a recovery of the demand, in suit, as he would thereby diminish the claims upon his joint and separate property, and thus increase the surplus, if. anyi in winding up .the estate. Butcher v. Forman, 6 Hill, 583; Aflalo v. Fourdrinier, 6 Bing. 306.

On all these grounds we think the witness was incompetent; and that the deposition should have been rejected.

It has been suggested that, the objection to the, witness came too late, and should have, been made before the commissioner and before the cross-examination. But the case shows that both parties were aware of .the legal objections-to his competency, and that the testimony.was. taken by an arrangement between them, for the purpose of presenting the question to the court. . The coiinsel for the plaintiffs assumed, as is apparent from his interrogatories in chief, that the witness, was -incompetent on the ground of his being a party in interest} and took upon himself the burden of removing the objections. For this, purpose, he produced his discharge in bankruptcy, and on the 14th inst., put the question to him whether he had any interest in the suit, and if not} to tell hów it had ceased.

The question suggested does not arise.in the case, and therefore it is unnecessary to examine it.

For the above reasons-, .we think the court below erred, and that the judgment must be reversed, with a venire de novo.

-Order.

This, cause Came on to be heard on the transcript of the record from the District Court of the United • States for .the Northern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by. this court, that the judgment of the said District Court, in this cause, -be and the same, is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said District Court, with directions to; award, a venire facias de novo.


author: Mr. Justice WA’iQ.VE

text:
    Henry A. Hall, Plaintiff, v. William Smith.
    Where there aré privies in a contract with the knowledge of a debtor to secure to his creditor the payment of a debt, the payment of it by any one of them other than the debtor, is a payment at his request, and is an express assumpsit to reim- ' burse the amount. . ,
    . Where the surety of a" surety pays the debt of a principal, under a legal obligation, from. ¡which the principal was bound to relieve him, such a payment is a sufficient consideration to raise an implied assumpsit to repay the amount, although the piyment was made without a request from the principal.
    This case came up ón a certificate of division from the Circuit Cdurt of the United States for the District of Maryland.
    The .United States of America, District of Maryland, to wit:— .
    At a Circuit Court of the United- States for the Fourth Circuit, in mid for. the Maryland District, begun and held at. the city of Baltimore, on the first Monday in April, in the year of our Lord one thousand, eight hundred and forty-four.
    Presentj the' Honorable Roger B. Taney, Chief Justice of the Supféme; Court of'the. United States ; tha Honorable Upton S. Hearn,. Judge of Maryland- District; Z. Collins Lee, -Esquire} Attorney-; Thoñias B. .Pottenger, Esquire, Marshall; . Thomas Spicer, Clerk...
    Among .other, were the following proceedings, to wit: —

      Henry A. Hall v. William Smith.
    District of Maryland, Circuit Court of the United States,'April term, 1844.
    The declaration in. this case contained counts, in the usual form, for . money lent and advanced, money paid, laid out, and expended, and money had and received, and an . averment that the defendant was á citizen of the State of .Mississippi, and the plaintiff oif the State of Maryland. Plea,- non-assumpsit, and issue upontit.. The, suit was instituted July 3d, 1843.
    At the trial of the case, the plaintiff offered in evidence the two notes hereinafter inserted, with the indorséments thereon, and fuiv ther offered in evidence to prove that the defendant being indebted. to a certain Philip ThoYnton in the sum of money hereinafter. mentioned, the' said Thornton brought suit against him in Baltimore County Court, in the State of Maryland, on the 18th of July, 1839; while the writ was in the hands of the'sheriff, and before the service thereof on the defendant, it was agreed between Smith and. the attorr ney of Thornton, that.Smith should be permitted on his honor to go. into an adjoining county to see his friends, to -procure security in. order to relieve himself from said suit. He went, and returned ; and on the 29th of July, 1839, in the State aforesáid, gave two promissory notes to Thornton; dated August 10th, 1839, one for ‡ 2,678.90, payable on the 1st qf April, 1840, and the other, for §2,669, payable on. the lstrof June., 1840 ; both of which notes were indorsed by a certain James S- McCaleb and a cfertain,James. Kent, as securities for the said Smith; and upon receiving these notes, So indorsed, Thornton discontinued the suit against Smith.. These notes were not paid at maturity, and were protested for nonpayment ; and in June, 184Ó, Thornton brought suit on both of them against McCaleb, the indorsef, in Baltimore County Court, upon which he, McCaleb, was ..arrested, and . being in the hands of the sheriff, he applied to a cértain Richard .Lemmon, of the city of Baltimore, to Recome his bail. McCaleb was. the son-in-law of Hemy A. Hall, the plaintiff, who resides in the State of Maryland, ■about forty miles distant from the city of Baltimore, and Lemmóñ being an intimate friend of the said Hall, and knowing McCaleb to be his son-in-law, agreed to become his bail, from the confidence, he had that the plaintiff would save him harmless ; and he entered bail accordingly in both of these suits.
    That at the first interview Lemmon afterwards had with the plaintiff, the latter introduced the subject, and without waiting , for any 'application from Lemmon, assured him that he, the plaintiff, would save him harmless ; and Lemmon having entire confidence in his verbal promise; did not ask any written security Pending thése suits 'Smith paid part.of one of the notes, and before judgment was». obtained upon either of them, Hall paid , the balance of the last mentioned note, and upon an agreement made with the attorney \of Thornton, a suit by Philip Thornton v, Henry Hall, the plaintiff, was docketed by consent on the 7th of September, 1840, in. the Circuit Court of the United States for the District of Maryland, and on the declaration was indorsed a direction to the clerk to enter judgment for the amount of the damages in the narration, to be released on payment of $> 2,669, with-, interest from the 1st of January, 1840, and costs, and stay of execution until the 1st of July, 1841 ; which was signed by the attorneys for the plaintiff and defendant. That, accordingly, at the next term of said court, in November, 1840, on the 4th jay of the month,-said judgment was entered, and the suits against McCaleb, in which Lemmon was bail, according to an arrangement between the counsel of Thornton, McCaleb, and Hall, were dismissed, having been, countermanded on-the 1st. of September, 1840, in consequénce of an agreement made between said parties, Thornton, McCaleb, and Hall, previous to said countermand, that said suit should be docketed by consent, and judgment confessed, as was afterwards done in the maimer above stated.
    The judgment was confessed in -the Circuit Court, in order-to create a lien upon the real estate of Hall, which being situated in a part of Maryland which was not within the jurisdiction of Baltimore County Court, it was supposed that a judgment in that court would not be a lien upon it.
    Upon the confession of this judgment in the Circuit Court, the notes above mentioned were delivered .to Hall by the attorney of Thornton; a 'part of this judgment was paid to the attorney of Thornton, by a draft of Smith in favor of McCaleb, upon a house in New Orleans, and the balance due upon it was paid by Hall on the 3'0th of June, 184J. James S. McCaleb died in the State of Mississippi, of which he was a citizen, in the summer of 1842, and letters of administration cn his estate were afterwards, on the 28th day of November, in the year 1842,-.granted by- the proper authority in that State to Jonathan McCaleb; and on the 20th of May, 1843, the administrator assigned to Hall, the plaintiff in this case, the notes aforesaid.
    The notes, with the several indorsements and assignments thereon, are as follows, to wit: •—
    $ 2,669 ' Baltimore, August 10th, 1839.
    On.the first day of January next, I promise to pay to the order of James S. McCaleb, twenty-six-hundred and sixtjlnine dollars, for value received, payable and negotiable at the Union Bank of Maryland. ■ Wm. -Smith.

      4th January, 1840. — J. G., JV. P. Non-payment.
    No. given..— H. &.S.
    Indorsements. — 651. Wm. Smith, $‘2,669. January 1.
    James S. McCaleb,
    James Kent.

      In consideration that the amount of the within note, with interest thereon, was paid by Henry A. Hall, Esq., in, behalf of James S. McCaleb, deceased, the indorser thereon, now I do hereby assign to said Henry A. Hall, said note.
    Joña. McCaleb, Administrator of May 20th, 1843. James S. McCaleb, deceased.
    $ 2,678.90. Baltimore, August 10th, 1839.
    On the first day of April next, I promise to pay to the order of James S. McCaleb, twenty-six hundred and seventy-eight dollars fop value received, payable and negotiable at the Union Bank bf Maryland. Wm. Smith.

      April 1. —Prot. non payment, 4th April, 1840.
    Indorsed. — Union, 583. Wm. Smith, $2678.90. April 1.
    Jas. S. McCaleb,
    James Kent.
    Baltimore, July 13th, 1840. $ 1,500. ■ By cash, received of Jas. S. McCaleb, on account, the within fifteen hundred dollars.
    Jno. M. Gordon, Attorney for P. Thornton.
    $400. July 24th. — By cash, $400. John M. Gordon.
    $ 200. By cash, two hundred dollars. August 3d, 1840.
    J: M. Gordon.
    I assign the within note to Henry A. Hall, for valúe received.
    Jonathan McCaleb, Administrator of May 20th, 1843. James S. McCaleb.
    The defendant offered to give, in evidence that Smith and McCaleb, the drawer and payee of the two notes given to Thornton, were citizens' of the State of Mississippi at the date of the notes, and that McCaleb continued to be so until his deáth, and th^at Smith still continues to be so.
    Upon this evidence the following questions occurred: —
    1. Is the plaintiff entitled to recover of the defendant the money, paid by plaintiff to Thornton, Or any part of it, as being money, paid'for his (Smith’s) use ?
    2. If the first question is answered in the negative, then can the defendant, upon the issue joined in this case, offer evidence that Smith and McCaleb were both citizens of Mississippi when, the notes stated in the testimony were given in order to bar the plaintiff of his action in this court as assignee of said notes ?
    And the judges being opposed in opinion upon each of these points, they are, at the request of the plaintiff, ordered to be certified-to the Supreme Court at their next session.
    Upon this certificate the case came up to this court.

      It was argued by Mr: Dulany, for the plaintiff, and by Mr. Giles and Mr. David Stewartj for the defendant.

      Mr. Dulany.

    As to the first question presented by the record, it cannot be, denied that the money paid by Hall to Thornton, was expended for the benefit of the defendant, Smith. It went “ pro tanto ” to extinguish the, debt due by Smith to Thornton ; it was money, therefore, advanced for the use of Smith, and of which, in fact, he ob-? tained the full benefit. What reason then can be alleged why an action for money laid out' and expended for the use of- Smith cannot lie to recover it again on the part of Hall ? The Circuit Court has jurisdiction over the subject-matter of such a suit, and over the parties ; for Hall is a citizen of the State of Maryland, and Smith of the State of Mississippi.
    But it is alleged that Smith became indebted to James S.. MeCaleb, on his, Smith’s, failure to pay the two promissory notes, on each of which .notes said MeCaleb was indorser; that Smith and MeCaleb were citizens of the same- State ; that, as such, MeCaleb could not have sued Smith in the courts of. the United States; and that, by the assignment of the notes to Hall, he was placéd in the shoes of MeCaleb, and could no more appear in the . courts of the United States as'plaintiff,'to enforce payment of the notes against Smith, thanMcCaleb himself could have appéared for that purpose.
    The principle.that the Circuit Court of.the United States has not jurisdiction; on account of the character of the parties, in a contest between citizens of different States, where the cause of action arises upon a debt, assigned, and originally contracted between citizens of the same State, is fully admitted.. But its application to the present case is denied. It is admitted that, when the assignor could not sue there, in an action on the debt assigned, the assignee is in no better situation than the assignor, although he may be a, citizen, of a different State from the original debtor.
    In the case npw under consideration the action is' not instituted upon the notes assigned, but for money expended for the use of Smith, and upon his implied request. The- money expended, which is the cau'se of action, was paid on the. 30th of June, 1841. The notes were not assigned until the 20th of May, 1843. The cause of action, tpen, .under the money counts of the declaration, arose long antérior to the assignments, and subsisted wholly independent of them; the notes, with the assignments upon them, being introduced in evidence to show in what manner the money. paid by Hall inured to the benefit of Smith, and were therefore collateral to the true cause of action, and designed merely as links in the chain of evidence to support it.
    The declaration shows that the suit is. between citizens of different States, and clearly therefore, within .the general jurisdiction of the Circuit Court, unless it falls within the restrictive clause of the eleventh section of the judiciary act of 1789, ch. 20, which declares, that the Circuit Court shall not “have cognizance of,any suit to recover the contents of any promissory note, or other chose in action, in favor of an assignee,- unless a suit might have been prosecuted in said court to recover the said contents if no assign-.ment had been made.”
    In Bean v. Smith and others, 2 Mason, 279, it is said,, speaking of thé abové clause, — “ Jt is perfectly clear that the statute never contemplated an exclusion of jurisdiction in cases where a negotiable instrument or chose in.action was mixed up in the ingredients of the. case; but where that chose in action constituted the sole cause of action, and the assignment the whole ground of the plaintiff’s right.”
    In the present case it is .manifest that the.assignment-,of the notes does not constitute the whole ground of the plaintiff’s action; but, on the contrary, that' the cause of action subsisted independent of, and anterior to, the assignments-, and at and from the moment when the money was paid, by the plaintiff to the attorney of Thornton, in discharge pro tanto of his claim against Smith. If this be so, then it is' clear that the restrictive clause of the judiciary act, above quoted, does not exclude the jurisdiction of the Circuit Court over the parties and the subject-matter of this cause.
    But it niay be replied, that if the money advanced by Hall is regarded as thé tru&’-eause of action, and not the assigned notes, then tiie plaintiff is .not entitled to recover; because the debt of Smith, to which the money was applied, was paid without his request or consent,- and was therefore a mere voluntary act,- from- which no cause of action can arise against him.'
    A' consideration of the evidence in this case, and the relation of the parties, will, we think, show that this, objection.cannot be sustained. - Smith was the drawer of ’both of the notes in favor,of James S. McCaleb, who became the accommodation indorser, and who redelivered them to Smith, who, iromhis own accommodation, and to relieve himself from a threatened arrest, gave them to Thornton, to whom, he was indebted, and at whose t instance the writ against Smith fed been issued. These notes were not paid at maturity, as ihejjf should have been, by Smith.; in consequence'of whose default ■ Writs were issued out df Baltimore County Court against James S'.' McCaleb, as indorser, under which he was arrested by the sheriff, and whilst in the hands pf that officer applied to Mr. Lemmon to become his bail, who consented to do so, in the confidence that he would be indemnified by .the :plaintiff, who was the father-in-law of the said McCaleb. Lemmon accordingly became bail iof McCaleb, who was then released by the sheriff.
    Afterwards, at the first interview :Lemmon had with the; plaintiff,- ' he assured him that he, the plaintiff, would save him harmless for having gone bail for his son-in-law. Pending these suits Smith had paid' part of one of the notes ; and before judgment was obtained Upon either of them Hall paid the balance of the other note. Suit was then docketed against Hall in the Circuit Court by Thornton, and judgment was confessed, to be released on payment of ‡ 2,669, with the. interest from the 1st of January, 1840. The payment of the balance of the note by Hall, and the confession of the judgment aforesaid, was the fulfilment, on the part of Half, of his agreement with Lemmon to save him harmless for having gone bail for McCaleb ; the suits against him in Baltimore County. Court being dismissed, upon the confession of the judgment by Hall in the Circuit Court, as had been previously agreed between the attorney of Thornton and Hall. At the same time that the' judgment was confessed the notes above mentioned were delivered to Hall by the attorney of Thornton.
    The argument upon the second question is omitted.
    Mr. Stewart and Mr. Criles

    made the following points : —
    ■ 1. That the plaintiff cannot recover of the defendant the amount of the payments so made, because, in making them, the plaintiff was a mere volunteer, so far as the defendant was concerned.

      2. That the plaintiff cannot recover upon the promissory notes referred to, because he claims title through an assignment made-by Jonathan McCaleb, administrator of James S. McCaleb, the payee of the said notes, both of whom were citizens of the State of Mississippi, of which State the defendant was also a citizen.
    3. That it was perfectly competent for the defendant, after the plaintiff h^d given the promissory notes in evidence under the declaration in this case, to rely under his plea, filed upon the defect of title in the plaintiff as assignee of the said notes, to recover in the Circuit Court.
   Mr. Justice WA’iQ.VE

delivered the opinion of the court.

Upon the trial of this cause in the Circuit Court, two points were made, upon which the judges differed in opinion ; ahd it has been certified to this court, as is provided for in the sixth section of the act of 1802, entitled £i An act to amend the judicial system of the United-States.” 2.Statutes at large, 159. From the evidence, we think, that all the persons in this transaction became privies in the same contract to secure the payment of a debt due by the defendant tó Thornton. The payment of it, therefore, by any one of them, other than the debtor, was a payment at his request, and an express assumpsit to reimburse the amount.

But suppose such a privity not existing between the parties, the evidence shows it also to be a case of the surety of a surety paying the debt of a principal, under a legal obligation, from which the principal was bound to relieve him. Such a payment is a sufficient consideration to raise' an implied assumpsit, to repay the amount, though the payment was made without a request from the principal. Tappin v. Broster, 1 C. & P. 112; Exall v. Partridge, 8 Term ft. 310; Child v. Morley, ibid. 610.

We shall decide the first point certified to be answered in the affirmative, which makes it unnecessary to notice the second.

Order.

This cause came on to be heard on. the transcript of the record from the Circuit Court of the United States, for the District of Maryland, and on'the points and questions on which the judges of the said Circuit Court were opposed in'Opinion, and which were certified to this' court for its opinion agreeably to the acts of Congress in such case made and provided, and was argued by counsel. In consideration whereof, it is the opinion of this court that the plaintiff in this case is entitled, to recover of the defendant the money paid by the. plaintiff to Thornton, as being money paid for his (Smith’s) use; Whereupon it is now here ordered and adjudged by this court that it be so certified to the said Circuit Court.