Page images
PDF
EPUB

Opinion of the Court.

the decree would be hard to support either on the other evidence to the same point or on the suggestion that the appellants had not proved what the burden lay on them to prove.

So far as the cross-examination of Martindale goes, we see no occasion for reversing the decision of the court. Wills v. Russell, 100 U. S. 621, 626. Nor do we think the suggestion material that the defendant thereby made Martindale his own witness. The evidence of Martindale's declarations was put in not merely to contradict what he said on the stand, but as evidence largely relied on to prove the facts which he declared.

It is said that as soon as the appellants' interest under the later assignment had vested Martindale could do nothing to destroy it; that he could not release it, and that therefore he could not end it obliquely by a declaration. The conclusion does not follow from the premises, granting those premises for the purpose of argument, although they presuppose the rights of the appellants under the later instruments to be established. To destroy by release is one thing, to destroy in the sense of disproving or qualifying by proof is another. The latter is free to any one who knows the facts. There is no doubt, of course, that Martindale had a right to testify to what he was shown to have declared, however bad it might be for the appellants. Therefore the only question is whether his declaration was some evidence as against them of facts which certainly might have been established by his oath.

If ever a declaration not made under oath is to be admitted against any other than the person making it, it should be admitted in this case. The declaration was obviously against interest. It was the only evidence in the nature of things that could be had, when Martindale haltingly denied the fact upon the stand. If we were to take it very nicely, it simply did away with a qualification engrafted by Martindale upon his testimony that the instrument was security for the bank, and made it easier to accept the principal fact without the qualification. The appellants say that they have a standing under the instrument independent of Martindale. So no doubt they have for some purposes, if we follow the somewhat sweeping and undiscriminating notion of equity embodied in many decisions to be

Opinion of the Court.

found. Nevertheless, they claim in Martindale's right as against the estate of Cross or any prior assignee. The fact that equity gives them a right to have the security applied does not enlarge or change the character of the security, and that was, as we have quoted, to enable Martindale "to pay himself for any paper" on which he was liable with Cross. The appellants get their rights from and through Martindale. Their right is only to have Martindale's right enforced as it was on July 15 or November 15. Cunningham v. Macon & Brunswick R. R. Co., 156 U. S. 400, 419. It even was argued on this ground that it appeared from other evidence that Martindale had no equity as against the Emporia bank, and that therefore the decree could be upheld. But, as we have said, the evidence objected to was too important not to have had an influence on the decision, and therefore we confine ourselves to the consideration of that.

It may be urged that, even if the appellants get their rights by subrogation, (and it is to be noticed that the only claim made in their pleadings is to be subrogated to the rights of Martindale,) still their rights are independent when the subrogation is complete. In reply we fall back upon the distinction between admissions and an attempt to release the rights. The distinction was recognized in England in the case of a suit by a naked trustee. If he undertook fraudulently to release the cause of action and his release was pleaded, the plea would be ordered off the files. Innell v. Newman, 4 B. & Ald. 419. See Payne v. Rogers, 1 Dougl. 407; Anon., 1 Salk. 260; Troeder v. Hyams, 153 Massachusetts, 536, 538. But his admissions were evidence for the defendant. Bauerman v. Radenius, 7 Term Rep. 663; Craib v. d'Aeth, 7 Term Rep. 670, n. (b). The analogy by no means is perfect, but it is sufficient. In these days, when the whole tendency of decisions and legislation is to enlarge the admissibility of hearsay where hearsay must be admitted or a failure of justice occur, we are not inclined to narrow the lines. The interest of Martindale continued, the appellants claim through it, and we are of opinion that, under the circumstances, admissions by Martindale contrary to that interest properly were let in. Cases of admissions by a trustee having no interest in the suit may stand on different ground. VOL. CLXXXVIII-47

Opinion of the Court.

The decree is objected to as granting affirmative relief to Albaugh against his co-defendant Newman. As the appellants are dismissed out of court, the error, if it was one, does not concern them.

Decree affirmed.

MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.

Decisions on Petitions for Writs of Certiorari.

OPINIONS PER CURIAM, ETC., FROM JANUARY 19, TO MARCH 1, 1903.

No. 68. JOHN S. SWANN ET AL., TRUSTEES, ETC., PLAINTIFFS IN ERROR, v. STATE OF WEST VIRGINIA. In error to the Supreme Court of Appeals of the State of West Virginia. Submitted December 8, 1902. Decided January 26, 1903. Per Curiam. Decree affirmed with costs, on the authority of King v. Mullins, 171 U. S. 404. Mr. George E. Price and Mr. S. S. Green for the plaintiffs in error. Mr. W. Mollohan, Mr. Geo. W. McClintic and Mr. Murray Briggs for the defendant in error.

No. 153. THEODORE READ, PLAINTIFF IN ERROR, v. MISSISSIPPI COUNTY. In error to the Supreme Court of the State of Arkansas. Submitted January 28, 1903. Decided February 2, 1903. Per Curiam. Judgment affirmed with costs, on the authority of Morley v. Lake Shore, etc., Railway Company, 146 U. S. 162. Mr. William H. Carroll for the plaintiff in error. No appearance for the defendant in error.

Decisions on Petitions for Writs of Certiorari. From January 19 to March 1, 1903. See vol. 187, p. 639.

No. 433. WILLIAM E. HALE, RECEIVER, ETC., PETITIONER, v. JAMES A. HILLIKER. January 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. M. H. Boutelle, Mr. Wm. E. Hale and Mr. A. L. Pincoff's for the petitioner. Mr. Charles E. Patterson and Mr. Alpheus Bulkeley for the respondent.

No. 443. RICHARD A. BURGET, PETITIONER, v. HORACE R. ROBINSON. January 19, 1903. Petition for a writ of certiorari

Decisions on Petitions for Writs of Certiorari.

to the United States Circuit Court of Appeals for the First Circuit denied. Mr. John W. Corcoran and Mr. P. A. Collins for the petitioner. Mr. Stiles W. Burr and Mr. John W. Saxe

for the respondent.

No. 546. STANDARD SEWING MACHINE COMPANY, PETITIONER, v. ARTHUR M. LESLIE. January 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. Charles S. Holt and Mr. John Dane, Jr., for the petitioner. Mr. Charles K. Offield and Mr. Charles C. Linthicum for the respondent.

No. 548. HORACE M. DUPEE, PETITIONER, v. CHICAGO HORSE SHOE COMPANY. January 19, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. William M. Jones and Mr. James E. Munroe for the petitioner. Mr. Le Roy D. Thoman for the respondent.

No. 549. WASHINGTON NATIONAL BUILDING AND LOAN AssoCIATION, PETITIONER, v. BERTHA L. FISKE AND HUSBAND. January 26, 1903. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. George E. Hamilton, Mr. M. J. Colbert, Mr. J. H. Ralston and Mr. F. L. Siddons for the petitioner. Mr. Maurice D. Rosenberg, Mr. Alexander Wolf and Mr. D. W. Baker for the respondents.

No. 553. SIMON ROTHSCHILD, PETITIONER, V. MEMPHIS AND CHARLESTON RAILROAD COMPANY ET AL. January 26, 1903. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Heber J. May for the petitioner. Mr. Francis Lynde Stetson, Mr. F. P. Poston and Mr. Fairfax Harrison for the respondents.

« PreviousContinue »