Ellis and others v. Bervellier.

IN BANK. dorsement; that it is therefore not a legal payment, and that, Dec. Term, instead of releasing the indorser upon his implied warranty, it

1846.

is the very thing that goes to fix it upon him. The books hold but one language on this subject. Chitty on Bills, 286, and cases cited; 32 E. C. Law Rep. 94; 1 Hill, 287.

If the principle for which counsel contends be true, as between Ellis & Vallette, it is equally so between the latter and Bervellier; and, in that event, the plaintiff below had no right to maintain his action against the defendants. The argument requires only to be stated to demonstrate its absurdity.

If, then, the witness was liable to the defendants below, in the event of a recovery against them, was he incompetent, from interest, to testify in their behalf?

We adopt the general and well settled principle, that the true test of the interest of the witness is, that he will either lose or gain by the direct legal operation or effect of the judgment, or that the same will be legal evidence for or against him in any other action. 1 Greenleaf's Ev. 434, and cases cited; 5 Ohio Rep. 283.

It is not proposed to review at length the cases cited by plaintiffs' counsel. They are all cases in contract; and this being an action of tort, they are not applicable to it. In this case the witness occupies a very different position from any that is put in the authorities quoted-one that excludes him, as well from interest as upon sound principles of legal policy.

The servant is not a witness for his master, in a case for damages caused by the negligence or misconduct of the former. 4 Mass. Rep. 349; 12 Ibid. 163.

The pilot cannot be called for the captain, who is sued for running down a vessel. 3 Car. & Payne, 305.

The guard of a coach is incompetent, in a like charge, against the proprietors. 4 Car. & Payne, 383.

A broker cannot be called by his principal, in an action for misconduct, in the purchase of goods made through the broker; 6 Esp. 71. See, also, the general rule, and cases cited in 1 Greenleaf's Ev. 439, sec. 394.

Ellis and others v. Bervellier.

Dec. Term,

1846.

The action here proceeds upon the ground, that defendants IN BANK. below committed a tort to the plaintiff. They reply not guilty. If they be guilty, Justice is liable to them; and the record in this case, if it went no farther, would be evidence to fix the amount of that liability, and for that reason, by the whole current of authority, he is excluded.

But further: The liability of Justice to Ellis & Vallette is to be determined by a recovery against them in this action, and that rests upon the fact, whether the signature of the plaintiff below, which Justice has impliedly warranted, is forged or genuine. If the former, his liability is fixed; if the latter, it is removed: and, to determine this point, he is called as a wit

ness.

In Herrick v. Whitney, 15 Johns. Rep. 244, the payee of a promissory note was held incompetent in an action against the maker, although he had transferred it without recourse, and for the reason, as the Conrt say, that he was liable upon his warranty that the note was not forged. "He has a direct interest in establishing the fact which he is called to prove." 5 Wend. Rep. 184; 6 Cow. Rep. 471; Ibid. 484; 16 Johns. Rep, 201; and 3 Cow. Rep. 252, are cited.

Equally so has Justice a "direct interest" in this case to prove that the signature of Bervellier is genuine, or attached in such manner as to be binding upon him.

It is claimed, however, that the witness being released, as to costs, has a balanced interest; that he stands perfectly indifferent between the parties, which, if it is the fact, renders him competent, and the plaintiffs' counsel goes into an elaborate examination of authorities to sustain this position. The gen eral principle is not controverted, but the assumption that the witness is within it, is denied. "Justice having indorsed the 'draft to Ellis," says the counsel for plaintiffs, "would, it is 'said, be liable to Ellis on his indorsement as a warrantor; but if Bervellier lost the suit, he would have the right to recover " against Justice." Not so. If Bervellier recover against Ellis and Vallette, he may, also, have his action and recover against

Ellis and others v. Bervellier.

IN BANK. Justice; but he can have but one satisfaction.

Dec. Term, 1846.

But if he fail

in this action, his right to recover of Justice fails with it.

The action is trover, and the defendants below put in issue the title of the plaintiff to the bill of exchange, claiming that he was legally divested of it, and that it was in themselves. A verdict for the defendant, upon the pleadings and the testimony, must find this fact if it find any thing. It must find that the indorsement of Bervellier, if not made by himself, was put there in his presence, and with his knowledge and consent, in such a manner as legally to pass his title to the property; for this is the fact in issue.

What then would be the effect of the record in this case, in a subsequent action by Bervellier against Justice, as a prior indorser of the same bill? Would it not, either pleaded or offered in evidence, effectually estop the plaintiff?

"If the title to the property was set up by the defendant in the first action, and it was found for him, it is clearly a bar to a second action for the same chattel, even though brought ' against one not a party to the former suit, but an accomplice in the original undertaking." 1 Greenleaf's Ev. 571, sec. 533, and cases cited.

"It is not necessary to the conclusiveness of the former 'judgment, that issue should have been taken upon the precise 'point which is controverted in the second trial; it is sufficient "if that point was essential to the finding of the former verdict." 1 Greenleaf's Ev. 572, sec. 534; See, also, same authority, page 568, note 1, and authorities cited.

BIRCHARD, J. Our first inquiry is, was the interest of Jesse Justice such as to render him an incompetent witness for the plaintiff? To solve this, it is necessary to consider whether he could derive any advantage from a determination of the suit in favor of Ellis & Vallette. As he was an indorser of the obligation to them, the most that can be claimed on behalf of defendant is, that he might be made liable in the event of a recovery against Ellis & Vallette, for the amount of the bill

Ellis and others v. Bervellier.

of exchange, and for no more.
cuted and delivered to him, would exhonerate and discharge
him from any claim for costs by the plaintiff in error.

The release which was exe- IN BANK.

How stands the interest in the event of a recovery by them? If the position assumed on behalf of Bervellier be correct, (and he was not at liberty to deny its correctness,) his failure to recover of Ellis & Vallette would not defeat his right to recover the amount of the bill against Justice. He was the indorser, had negotiated the paper, and if the name of Bervellier was a forgery, the act of Justice was an unlawful conversion, for which trover against him could be maintained, and the recovery would still be the amount of the bill. This state of the case so placed him, that he could neither gain or lose by the event of the suit, and shows that his interest was equally balanced, and that he ought to have been permitted to testify, unless there shall be found some other obstacle. What, then, are the remaining reasons offered to sustain the ruling of the Court of Common Pleas? The first, in point of importance, is, that the indorsement by Justice being, on its face, unconditional and unambiguous, parol evidence is inadmissible to vary or contradict the legal import of the instrument. In answer to this, it is sufficient to say that his testimony was not offered to vary or alter the effect of his indorsement. The object was not to change the contract made and supposed to subsist between him and Ellis & Vallette. A like answer may be given to another position, which counsel insist upon, that he could not give evidence to destroy the title of the holder, by proving facts or circumstances preceding or concurrent with the indorsement. We reply, that he was not offered to establish a fact inconsistent with his indorsement, and which tended to destroy its force. On the contrary, the evidence sought from him was perfectly consistent with and tended to sustain it.

Another argument is, that in a suit by Bervellier against the witness, the record in this case, showing a recovery against Bervellier, would be a bar. It would be strange, indeed, if one

Dec. Term,

1846.

Edwards v. Owen,

Dec. Term,

1846.

IN BANK. having a good cause of action in trover against A, should lose it entirely by attempting and failing to recover of B, against whom he had no right of action. The only authority cited in support of this singular doctrine, is from Greenleaf's Evidence, which is misapplied, and by no means sustains it, as will be seen by recurring to and carefully examining the reported cases referred to by that author.

Judgment reversed and cause remanded.

DORSON EDWARDS vs. GEORGE OWEN.

A special action on the case may be sustained against a debtor, for fraudulently representing himself insolvent, and thereby inducing his creditor to discharge a promissory note for less than its value.

Proof of general representations, made at the same time to others, by which they were defrauded, may be given in evidence to show the intention of the debtor in making the false representations complained of.

But it is error to instruct a jury that proof of false and fraudulent declarations, thus made, to other creditors, would sustain a declaration, counting upon representations made directly to the plaintiff.

THIS is a WRIT OF ERROR to the Court of Common Pleas of MONTGOMERY County.

The original action was case. The declaration averred, in substance, that Owen held a note against Edwards for $278, due November 5, 1841. That on the 17th of June, 1841, Edwards fraudulently, &c., represented himself to Owen as insolvent and unable to pay his debts, and thereby induced him to give up said note and receive, in satisfaction of it, certain property worth not over $75, by which he was defrauded out of and lost $203, when in fact said Edwards was solvent.

To this declaration there was a general demurrer, which was overruled. The plea of the general issue was then filed, upon which was a trial by jury and verdict for plaintiff.