Ebenezer Pierce v. Luther Gilson, 9 Vt. 216

The opinion of the court was delivered by Williams, Ch. J. That an action of trover may be .maintained for a written security, is too well settled to admit of dispute. A paper, whether it be a lease, deed, note, or bill of exchange, is but evidence of a title, or of a contract; and,, if lost or wantonly destroyed, the title or the debt is not thereby destroyed.

The same objection, which has been insisted on here, might be urged as an objection to any action of trover for a written security, viz. that the same evidence, which would maintain the action, would supply the want of the paper, whenever it should become a subject of controversy. As evidence, such'papers have a value attached to them, and, therefore,, whoever illegally withholds them from him, who is entitled to the same, is liable to an action of trover.

A note is evidence of a sum of money due from the maker, and, as such, is of value to the holder, and because it is such evidence, it is of value to the maker to have it in possession, or cancelled, when he has paid the same, either as evidence of his having made the payment, or to suppress an evidence of his indebtedness, which ought not to exist. To compel a .person to deliver up papera to be cancelled, which would otherwise be evidence of their contents, but which ought not to be held for that purpose, is frequently asked for and ordered in chancery.

Suits in chancery, and writs of audita querela, may be instituted, quia timet, when the same evidence, which would sustain the bill or suit, if it could always be preserved, would prevent the fears from ever being realized. The right of the person, who has paid a note, to have'it delivered up to him, was recognized in the ease of Eastman v. Potter, 4 Vt. Rep. 313, and in several cases- there referred to. The very, question, whether an action' of trover can be maintained, for a note paid, at the suit of the person making the payment, has been settled by authority.

The cases, mentioned in 3 Starkie, 1503, as well as the decision in the case of Buck v. Kent, 3 Vt. Rep. 99, are decisive that such an action may be maintained. The case from 3 Johns; 432, is the only one conflicting with this principle. But while such an action is recognised, it should be so guarded as to prevent either inconvenience or injustice. It will not answer to permit a litigated question of payment to be decided in such an action. The action should %be permitted only where, not only the evidence of payment is unequivocal, but also where it was understood by both parties.

As long as that subject is in dispute,-and while the holder of the note claims that it is not folly paid, he has a right to retain the note as evidence of indebtedness. In this case, the evidence introduced tended to show that the note was paid and left, by mistake, in the hands of the defendant.

If such were the facts, the plaintiff was entitled to the note. -But, if, at the time the plaintiff paid the note, as he contends, the defendant insisted that something further was due, although he may have been under a wrong impression as to that fact, he could safely insist upon retaining the same, until the question of payment was settled.

On the other-'question, we recognize the rule, that whenever the credit'of a witness is to be impeached, by proof of what he has said, declared, or done, he is first to be asked, upon cross-examination, whether he has said, or declared, or done that, which is to be proved, and we think it not only a satisfactory one, but one, which must be observed. And the application of this rule would, in many cases, require, that the witness should be inquired of, on cross-examination, in relation to controversies.

Yet there are other cases of quarrels between a witness and party, where such an examination could not be necessary. A party has a right to have the jury know if there is any hostility or bad feeling existing between the witness and him, at the time of his testifying. For that purpose, it may be shewn that a law suit has existed, calculated to excite personal dislike; that a violent altercation has taken place, arising to personal violence. We can see no reason why, in some such cases, the inquiry should be first made of the witness. The aggression may have been on the part of the party, and not of the witness.

The witness may think that he entertains no ill will towards the party. The fact of the controversy is all, which is to be shewn; but the nature of the quarrel is not to be explained. In the case before us, the defendant gave evidence, tending to contradict one of the witnesses introduced on the part of the plaintiff, and then offered to prove, that a violent quarrel existed between the witness and the defendant. What the nature of the quarrel was, is not stated.

We think this testimony was proper, and we cannot see why it was incumbent on the plaintiff either to prove, or attempt to prove this, by cross examination of the witness. It was a distinct, collateral fact, not directly to impeach 'the witness, but to shew his feelings towards the party, and of the same character, as shewing the relationship, or connection between the witness and the party producing him. As the quarrel may have been of a nature, which did not require that the witness should be first inquired of, on cross examination, we think the county court erred in excluding the testimony offered.

Judgment reversed.