Allen v. Hawks

The opinion of the Court was afterwards drawn up by

Whenever an act is made subject to a penalty by statute, it is of course considered as prohibited and forbidden, and no right or legal obligation can grow out of an act wilfully done in violation of such law. Wheeler *83v. Russell, 17 Mass. R. 258. The charges sued for were, fees for the collection of debts, and the defence was, that this claim was founded upon an agreement, expressly made penal by St. 1811, c, 62. This statute prescribes a penalty against any person, who shall give or promise any valuable consideration whatever with an intent to procure and obtain any note or demand, for the purpose of making a gain or profit from the fees arising from the collection thereof by suit. The whole subject matter of the contract was the collection of the demands due to Erastus Hawks, for whom the defendant was agent, by suits at law, and the evidence tended to show, that for the purpose of being thus retained and employed by the defendant as such agent, the plaintiff promised to pay over to him one half of the fees which the plaintiff should obtain. This of course embraced his emoluments, whatever they were, and whether arising from retainers, taxable costs, or otherwise. It may be very questionable whether this was not a collusive and dishonest bargain on both sides, and so void at common law, it being an agreement by the defendant, acting as agent, to receive a personal emolument to himself, to induce him to put the demands of his principal in suit, when it might not be for Ms interest to do so. But whether it xvas so or not, we think this contract directly within the statute, that the law will afford no aid, in giving effect to it, and that the jury were rightly instructed, if they should find such bargain proved, to return a verdict for the defendant. And we are also of opinion, that the parol evidence was admissible. Russell v. De Grand, 15 Mass. R. 35.

But the principal and by far the most important question in the present case is, whether, under the circumstances stated in the report, the competency of the witness, who had given his receipt for the attached pioperty, was restored by placing in his hands an amount of money equal to the xvhole amount for which he could by possibility be liable on his receipt.

The case shoxvs that the property receipted for, had been restored to the defendant in the action, so that he could have no claim upon the officer, and of course the only lia*84bility of the witness on his receipt to the sheriff, was fox such claim as the plaintiff might have. It has lately been decided, that where a receipt is taken by the sheriff for attached goods, which are specifically valued in the receipt, such valuation is to be taken prima facie as the agreed value, and fixes and limits the extent of the receipter’s liability. So that in the present case, the witness could not be responsible, beyond the sum of three hundred dollars. The Court are of opinion, that the deposit of this sum with the witness, with a written authority provisionally to discharge his obligation out of it, without the intervention of any other act, did, to all practical purposes, extinguish the interest of the witness and restore his competency.

In all analogous cases, where a party has become interested, in consequence of having given some obligation or suretiship, connected with the prosecution of the cause, the court will, where they have the power, permit such obligation or suretiship to be changed, in order to take off the pecuniary interest of one who is required as a witness.

Bail will be discharged, and new bail taken in court, instanter, in order to admit the surety on the bail bond, as a witness. Leggett v. Boyd, 3 Wendell, 376.

Sureties in a replevin bond, will be discharged and new sureties taken, although possibly the defendant in replevin may have his right of action against the sheriff for taking insufficient sureties. Bailey v. Bailey, 1 Bingh. 92.

If a witness for the defence is one of the bail, his name will be struck out of the bail-piece in order to render him a competent witness, upon the defendant’s depositing a sufficient sum with the associate. Bailey v. Hole, 3 Carr,. & Payne, 560. Surety on an appeal bond will be discharged and a new bond taken in court. Tompkins v. Curtis, 3 Cowen, 251. It has, indeed, been decided otherwise, in regard to an attorney who has indorsed a writ; but, this decision was made upon the construction of the statute, which was supposed to give a remedy for costs, only against ari original indorser, and not against a substituted indorser received in the progress of the cause, whether by order o! court or otherwise. But by the recent revised statute, on *85this subject, the court is expressly authorized to permit the name of any indorser to be stricken out, and a responsible new indorser substituted. St. 1833, c. 50, § 4.

In New York, in a recent case, it was decided, that an attorney, though by law liable for the costs of the suit, was nevertheless a competent witness, he declaring on the voir dire that he was fully indemnified. Chaffee v. Thomas, 7 Cowen, 358. That case goes somewhat farther than the present, if it went on the ground that he had a contract of indemnity, which he considered as ample security, because he might be obliged to resort to a suit, to avail himself of it. But if he had funds of his principal in his hands, out of which he could pay and discharge the costs, and thus avoid his liability, it was precisely analogous to the present case.

We do not decide, that any bond or contract of indemnity shall be deemed equivalent to a release, (and upon that question we give no opinion,) but only that when a sum of money, which is the universal medium for the payment and discharge of obligations- can be so placed as, in effect, fully to meet and obviate any responsibility which creates the interest of the witness, it shall be considered sufficient to restore his competency.

We are aware of the distinction pressed in the argument, that such an appropriation of money, does not, like a release, extinguish the interest. But it is not to be overlooked, that this is one of those technical and artificial rules, devised for the purpose of preserving the purity of testimony and promoting the investigation of truth, and ought not in practice to be pushed to such an extent as to defeat its own purposes. The. law looks at the substance and reality, not the semblance and shadow of things, at the real and actual interest which would be likely to influence the mind and pervert the testimony of the witness, and not at a possible or ideal responsibility which cannot subject him to any real loss or damage. The object of the release is, to exempt the mind of the witness from the bias arising from pecuniary interest. All other interests are overlooked. The member of a corporation, who perhaps has been the most efficient agent in conducting the controversy, out of which the suit with the *86corporation has arisen, is yet made competent by the transfer of his stock, or other disfranchisement, at the moment of the trial, because at the time of testifying he has no pecuniary interest. The debtor, who, if one party prevails, will stand liable to one who may be a harsh and grinding creditor, but who, if the other prevails, will stand liable to a friend who will treat him with all mildness and forbearance, is still competent, because his responsibility is equal and his pecuniary interest, therefore, not affected. If such bias from pecuniary interest, can be effectually removed by the appropriation of a sum of money to meet and obviate the witness’s responsibility, we think it satisfies the rule substantially, although it does not technically extinguish the obligation out of which such pecuniary interest arises.

Judgment on the verdict.