United States v. Leffler

ERROR to the Circuit Court for the Eastern District of Virginia. The United States instituted an action of debt, on a joint and several bond, executed on the 8th of December 1816, by Salathiel Curtis, Jacob Leffler, Isaac Leffler, Benjamin Biggs and Reuben Foreman, conditioned for the faithful performance by Salathiel Curtis, of the duties of collector of taxes, then held by him. The cause abated as to Biggs and Foreman, by their deaths.

After the institution of the suit, and prior to the trial of the same against Jacob and Isaac Leffler, the defendants in error, Salathiel Curtis, who had appeared and pleaded to the action, by his attorney, withdrew his plea; and having said nothing in bar to the action of the plaintiffs, the court, on consideration thereof, gave judgment for the plaintiffs against him, for the debt mentioned in the declaration, with costs. Afterwards, the United States sued out an execution on the judgment, against the body of the defendant, who was taken, and was in the custody of the marshal; when, he being in such custody, under a warrant from the president of the United States, bearing date on the 8th day of May 1824, he was duly discharged from custody, under the insolvent laws of the United States, he having complied with the requisitions of those laws.

The United States proceeded to a trial of the suit against the defendants, Jacob and Isaac Leffler, in December 1835, upon issues joined on two pleas of Jacob Leffler; the first being a plea of non est factum, and the second a special plea, to the same effect, setting forth that he had executed the bond in question, as an escrow, and on the condition, that it should be executed by certain other persons, as co-sureties for Salathiel Curtis, who did not execute the same.

On the trial of the cause, the defendant, Jacob Leffler, to support the issue of non est factum, offered in evidence the deposition of Salathiel Curtis, which deposition was objected to by the district-attorney of the United States. The deposition stated, that Jacob Leffler and Reuben Foreman executed the bond, under the impression, and on the condition, that the deponent could procure the signatures of other persons to the same, and they were not so procured. The competency of the witness being so objected to on the part of the United States; evidence of the proceedings against him to judgment and execution, and of his discharge under the insolvent laws of the United States, was given by the defendant, Jacob Leffler; and the circuit court having overruled the objection, the deposition, taken after the said proceedings, was admitted in evidence. The jury found a verdict for the defendant, on which judgment was given, and the United States having taken a bill of exceptions to the evidence, this writ of error was prosecuted on their behalf.

The case was argued by Butler, Attorney-General, for the plaintiffs in error; and by Webster, for the defendants.

Butler contended, that the deposition of Salathiel Curtis was not admissible in evidence; and that the judgment of the circuit court should, therefore, be reversed, and a venire de novo awarded. The precise question involved in the case before the court arose in the case of Pauling v. United States, 4 Cranch 219; but it was not decided. The United States now insisted, that the principal obligor in a bond is not a witness to invalidate it; he having affirmed it, by executing it; and having, by his own falsehood and fraud, involved the public in the losses they sustained, by entering on his duties as the collector of taxes, under such circumstances. The case of Walton v. Shelley, 1 T. R. 296, was the first case which decided the principle on which the admission of this evidence is resisted. While it is admitted, the decisions of the courts of the different states vary, as to the rule adopted in the case referred to; this court, in the case of the Bank of the United States v. Dunn, have asserted and applied it. 6 Pet. 57. In Virginia, in a case in 3 Rand. 316, it has been expressly repudiated.

It makes no difference where the bond was executed; and although executed in Virginia, it looked to the city of Washington for the performance of the conditions imposed by it; the principal obligor being a collector of taxes, and required by the law under which he acted, to account for the taxes collected by him at the treasury department. This was so decided in the case of Cox v. Dick, 6 Pet. 173, 202. A bond executed in Louisiana was to be considered as made in the district of Columbia. There is a slight difference between the condition of the bond, in the two cases, but the difference is more favorable to the principle claimed. In this case, the duties of the officer were to be performed according to law; in Cox's case, the money was to be paid as the officer might be directed. If the law of this district is to prevail, the case is decided; for this court has said, that no one who has put his name to an instrument shall be permitted to discredit it. It is admitted, that the case referred to was like that of Walton v. Shelley; in which the instrument was negotiable.

But if the law of Virginia is to prevail, it will be shown, that the witness was a party to the suit, was interested in it, and could not, by the defendant's release, be made a witness. The suit was brought on a joint and several bond, but the plaintiffs have united to treat it as a joint bond. It is a rule, in Virginia, that in an action on a joint and several bond, the plaintiff may treat it as he pleases; but if he treats it as a joint bond, he must sue all; he cannot sue only a part of the obligors. 1 Hen. & Munf. 61; 1 Munf. 406. This suit is against all the five obligors, and if the United States fail to make out a joint obligation, they will be defeated.

Anything which may serve an individual for his own defence, may be given in evidence, as in cases of bankruptcy, in England, and cases of infancy, there and here. But such evidence will be applicable to the person of the individual obligor, after its execution; and not to the execution of the instrument, as it might defeat the whole action, by destroying the joint action.

If it should appear, that one of the obligors executed the bond on a condition that made it void, the bond would be void. This is distinctly stated in 4 Cranch 223. In the case of a forged signature to a joint bond, the whole action on it would fail, on proof of the forgery; not so, when the action was several. A joint action, or a joint and several one, is defeated as to all, when it is defeated as to one. 2 Munf. 33; 2 Binn. 195; 3 Rand. 316, 327, 334, 340, 351, 357, 360. In this case, it was held, that a defendant, or a party to a joint bond, could not be released by his co-obligor, as he is liable to costs, notwithstanding his release. 3 Leigh 590. These cases are in conformity with the rules of the common law. One defendant cannot give judgment against himself, to make himself a witness, and defeat the whole instrument.

A party to a suit cannot be called as a witness. He is incompetent, because he is a party to the record. This is a general rule of the common law; and the only case in which such party can be a witness, is, where his testimony will not affect the original contract. The rule which excludes a party to the record from giving evidence, is peculiar to the common law; in equity, it is otherwise. It is, therefore, only necessary to show that Salathiel Curtis was a party to the record. This is apparent on the face of the proceedings; he was so originally, and he continued to be so. As to the judgment entered against him having made him no party to the subsequent proceedings; it is contended, that the judgment was irregular. The practice in all courts is, to continue the case as to a defendant who is in default, until the cause shall be determined against all; this shows the proceeding to have been irregular. The fact that the attorney of the United States made no objection to it, and afterwards issued execution on it, does not alter the case. It was irregular; it was void, and could not be made valid. It could have been set aside. That Curtis suffered imprisonment does not cure the defects of the judgment. The discharge of Curtis by the United States has no influence in this case. The discharge was no of his debts, but from the imprisonment. 5 Pet. 186; 1 Ibid. 573; 1 Gallis. 82.

In any view which can be taken of the case, Curtis was not a witness. He was a party to the suit; a party named in the record; he had a dormant, but a substantial, interest in its result, both as to the amount of the recovery, and between the parties for costs, and for costs to the United States on a general judgment, to the parties to the bond.

If there is any case in which the moral purposes of the rule will apply, it is this now before the court; as public policy, the rule which excludes a party to an instrument from discrediting it, should be extended, emphatically, when a public officer who has given currency to an obligation, and has by it obtained the confidence and the funds of the government should not be allowed to defeat it. The government is obliged to act through agents, and will be exposed, extensively, to frauds, unless protected by the application of the principle to such cases. This is not a reason for asking the court to vary an established rule of law, but it is a sufficient reason for asking the court to extend a principle, declared by it to be the law in the case of the Bank of the United States v. Dunn, to a case which requires it.

No decision of this court has been given, which allows a party to the record to be a witness. In New York, the supreme court has decided, that the rule is inflexible, and he is always excluded.

Webster, for the defendant.-The case in the court below was on a bond executed by five persons, four of whom were the sureties of the other, for the performance of the duties of collector. When the trial took place, the state of the pleadings was as follows: Two of the obligors were dead; one had made 'a cognovit,' and the United States had chosen to take a judgment against him and had proceeded to execution; he could not have compelled them to go on. The other two pleaded non est factum, and that the bond was an escrow. The case was tried on these issues; and before the trial, the witness against whom judgment had been taken, had been released by the defendants; his testimony was admitted, to prove that the bond was executed on a condition which was not performed.

The objections to the witness are: 1. That he repudiated the instrument. 2. That he had an interest in the result of the suit. 3. That he was a party to the record, at the time of the trial, and as such cannot be permitted to testify.

As to the first objection, the cases of Walton v. Shelley, and Bent v. Baker, and all the subsequent cases apply this principle to negotiable instruments, and to them only. This is expressly said by this court, in the Bank of the United States v. Dunn, 6 Pet. 55. No decision in any court of the United States has extended the rule beyond negotiable instruments; and in England, the same qualification has prevailed. The doctrine never applied to a bond.

The second objection is to the interest of the party in the suit. To sustain this objection, an attempt has been made, to show that the whole proceedings against Salathiel Curtis, the principal in the bond, are void; and that a judgment cannot be taken against one co-obligor, when it is not obtained against all who are joined with him. This position cannot be maintained. After the party has elected to proceed against one, he cannot afterwards treat the case differently. He has made the bond several as to him against whom judgment has been entered. Whether, when the pleas are several, and one defendant pleads that the bond was an escrow, the plaintiff may not proceed against the other obligors, it is not necessary now to decide. The case cited from 4 Cranch gives no support to the position for which it was referred to. How can Curtis be interested in the result of this suit? A judgment had been entered against him, and the plaintiff had proceeded by execution. No other judgment can be obtained; the United States had made its election, and what other proceedings can be had against him? The judgment remains in full force; if it had been defective, it should have been opened. Could any judgment be entered against him for costs, in this suit against Leffler?

Curtis is not a party to this suit; he is, in no part of its pleadings, named as a party. He could not have made a motion on the cause; he had no day in court. The suit was simply one against the defendants in error. In the case of Worrell v. Jones, 7 Bing. 395, it was held, that a party to the record may be a witness, if he has no interest in the suit. Here, Curtis had no interest; or if he had, it was, until he was released by them, an interest against the sureties.

BARBOUR, Justice, delivered the opinion of the court.