Martin v. Farnum

Assumpsit for money had and received will lie, whenever the defendant has money in his hands which the plaintiff ought to have, or has made a promise to pay a sum which the plaintiff is entitled to receive. It is a liberal, equitable form of action, and courts have been disposed to uphold it when no rule of policy or strict law-interferes to prevent. Wright v. Butler, 6 Wendell’s Rep. 290; Eddy v. Smith, 13 Wendell 488; Irvine v. Hanlon, 10 Serg. & Rawle’s Rep. 219; 2 Term Rep. 370; 3 B. & Pul. 169.

It lies by the holder of a note, whether payee or indorsee, *195against the maker. This is well settled. The note is evidence of money had and received by the maker of the payee, and also of an agreement on the part of the maker to hold the money for the nse of any one to whom the note may be legally transferred. Tenney v. Sanborn, 5 N. H. Rep. 557; Edgerton v. Brackett, 11 N. H. Rep. 218; Olcott v. Rathbone, 5 Wendell’s Rep. 495; 12 Johns. Rep. 90.

It may also be maintained by the indorsee against the indorser. The foundation of the action in such a case is an implied promise to pay the sum mentioned in the note, when the same is passed from the indorser to the indorsee. The presumption is, as each indorser passes the note to his indorsee, that he is paid the money therefor; and the contract of the indorser is, that he will, in default of payment by the maker or his previous indorsers, pay the money himself to his indorsee or to any one who may be the holder. State Bank v. Hurd, 12 Mass. Rep. 172; Wilson v. George, 10 N. H. Rep. 446; Hays v. Phelps, 1 Sandf. Sup. Ct. Rep. 64; Ellsworth v. Brewer, 11 Pick. Rep. 316. In Hays v. Phelps, the action was brought by a third indorser against the first, and is therefore precisely parallel with the case under consideration. In Ellsworth v. Brewer, the plaintiff was the sixth indorser and the defendant the fourth. In that case the court say: To maintain assumpsit there must be a privity between the parties, but it may be a privity in fact or in law; and as such negotiable contract is presumed to be a cash transaction, and as a money consideration is presumed to pass at the making and at each indorsement of the instrument, each party liable to pay is held responsible as for so much money had and received to the use of the party who is for the time the holder and entitled to recover.

We are not aware that this precise point has been raised in this State heretofore, but the tendency of the decisions in our own reports has been to sustain the ruling of the court below ; and upon an examination of the authorities and the reasoning of courts upon the subject, we discover no good objection to holding that the action can be maintained.

*196The practice in different jurisdictions upon the second point raised in this case has somewhat .varied. Ordinarily, two methods are adopted to show the interest of a witness. He may be interrogated on his voir dire, and his interest shown in that way, or it may be shown by evidence aliunde. What the evidence aliunde shall be, must depend upon the position of the point presented for the court to pass upon. Primarily it is evidence for the consideration of the court in deciding upon the competency of the witness; but if the question depends upon intricate questions of fact, the court may in their discretion take the opinion of the jury upon them. The evidence which is offered aliunde must evidently vary to a great extent to conform to the nature of the interest and the numerous ways in which it presents itself. As the evidence is addressed to the court, some authorities hold that the court-may exercise a latitude in receiving it exceeding the ordinary rules of evidence; and if they become satisfied that the witness is interested, he should be rejected; and hence, that the statements of a witness as to his interest are properly receivable in the discretion of the court in passing upon the question. Colston v. Nichols, 1 Harr. & Johns. Rep. 105; Dennis v. Jones, 1 Coxe’s Rep. 46; Patten v. Halstead, 1 Coxe 277. It is also said that the evidence is admissible, as analogous to the principle of showing the religious opinions of a witness by his statements, and thereby deciding upon his competency.

Other authorities hold that the statements or confessions of a witness in regard to his interest are mere hearsay, and are properly classed under that head as inadmissible in deciding the question of competency. Commonwealth v. Waite, 5 Mass. Rep. 261; Pierce v. Chase, 8 Mass. Rep. 487; Cotchet v. Dixon, 4 McCord’s Rep. 311; Young v. Garland, 6 Shepl. Rep. 409; Vining v. Wooten, 1 Cooke 127.

We also find, on comparing views, that a different practice has prevailed to some extent in the courts of this State; and the same question comes to us from another county upon the same ruling in another case. But after consultation in regard to the *197matter, we have arrived at the conclusion that the statements of a witness, that he is interested in the result of the suit, or that he is the party in interest, are not receivable for the purpose of excluding him. Upon general principles this is clear. The statements of individuals not parties to the record are not admissible to affect the interests of those parties ; and to show by others what they have heard such persons say, is but mere hearsay. In addition to this general principle, which is against the reception of the evidence, there is another consideration of some moment. The rights of a party would not unfrequently be sacrificed by the acts of an unfriendly and designing witness. It would be very easy for a witness to make loose statements out of court that he was interested in the result, and thereby put it in the power of the party that he wished to favor, but who would be seriously injured by his testimony, entirely to exclude him.

A witness may be put upon his voir dire and his interest tested in that way; or his interest may be shown by competent evidence aliunde; or he maybe cross-examined upon his general examination, and the usual course to contradict or impeach him may be pursued; but to exclude him by his own unsworn statements or confessions in regard to his interest in the case, would be sanctioning a practice which we think would not answer.

It is not necessary to decide the other question raised by the case. Ordinarily, the interest of a witness in the result of a suit may be released, or a sum of money deposited with the court, so as to make the witness competent. But there are cases where the interest is such that it is difficult to be removed. In this case, assuming that the witness had been proved to be the real plaintiff, we suggest that there was an interest which the mutual releases could not reach. The interest which the witness could release, was all his right and claim to the cause of action and the avails of the suit; and that which the nominal plaintiff could release, was all claim which he in any way had, or could have, upon the witness in consequence of the suit. But there is still an interest which is not removed. The witness and real *198plaintiff is, notwithstanding the releases, liable to the defendant for costs. At least such is the doctrine of many cases of high authority. Scott v. Lloyd, 12 Pet. Rep. 149; McKinley v. McGregor, 8 Whart. Rep. 369; Cox v. Norton, 1 Penn. Rep. 414; Lake v. Auburn, 17 Wendell’s Rep. 18; Gallagher v. Milligan, 3 Penn. Rep. 177; Ontario Bank v. Worthington, 12 Wendell 593. Perhaps a bond of indemnity against such costs from a solvent obligor might make the witness competent. Lake v. Auburn, 17 Wendell 18. But this is denied in Paine v. Hussey, 5 Shepl. Rep. 274. A deposite with the clerk of a sufficient sum to cover the liability might probably remove the difficulty. But, as before stated, it is unnecessary to settle this question. The verdict must he-set aside upon the second point, and a

New trial granted.