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Winton v. Saidler.

general proposition. I entirely agree with the distinction taken by my brother Buller, that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by his own testimony.” It is true, Lord Kenyon, some years afterwards, in the case of Rich v. Topping, (1 Esp. Rep. 176,) denied that he made use of the words imputed to him in Bent v. Baker.

In the case of Charrington v. Milner, (Peak. N. P. 6,) he again recognizes the same principle. It was an action by

the endorsee of a promissory note against the ma[*196] ker. *The endorser was called to prove that the

note had been paid. The witness was objected to, on the ground that a man should not be permitted to invalidate his own paper. Lord Kenyon admitted the witness, stating that he was competent, because his evidence did not go to prove the note originally void, clearly implying, that had the object of his testimony been to show that the note was originally void, he would not have been competent.

The same point was decided by Justice Buller, at Nisi Prius, in the case of Phetheon v. Whitmore, (Peak. N. P. 40.)

In the case of Humphrey v. Moxon, (Peak. 52,) Lord Kenyon again recognized the same principle, and speaks of it as a point well settled. He says, “the courts have laid down a rule, that a man shall not destroy his own security." Lord Kenyon, however, afterwards, in the case of Adams v. Lingard, (Peak. 117,) ruled otherwise, at Nisi Prius, and admiited the endorsee of a bill of exchange to invalidate it.

In the case of Jordaine v. Lashbrooke, the question again came before the court of king's bench, when Lord Kenyon, together with Justices Grose and Lawrence, decided that the payee of a bill of exchange, in an action by the endorsee against the acceptor, was competent to prove the bill void in its creation, Justice Ashhurst dissenting. Thus we find different decisions at different periods, in the court of king's bench; and, on so.ne occasions, I think it may fairly be said that Lord Kenyon has differed with himself. Under all

Winton v. Saidler.

these circumstances, this question seems to be unsettled in the English courts. No decisions have there taken place, that can, in any measure, influence the determination of this court. Believing, as I do, that to admit a party to a negotiable note to come forward as a witness to impeach that note, would greatly embarrass trade and commerce, and almost entirely prevent the circulation of this species of paper, and that if it did not have this *effect, it would open a [*197] door to innumerable frauds and impositions upon bona fide holders of negotiable paper, and that it would, in its consequences, hold out strong temptations to perjury and corruption, I think, on the whole, that principles of sound policy and morality demand the decision, that a party to a negotiable note ought not to be admitted as a witness to invalidate it.(a) I confine

(a) (Old note.] Peake, in his Law of Evidence, (3d ed. 190 in 1808,) and Chitty, in his Treatise on Bills and Notes, (2d ed. p. 282,) considers the rule laid down in the case of Walton v. Shelly, as no longer existing, after the solemn decision of the court, in the case of Jordaine v. Lashbrooke, and the competency of a witness seems to rest wholly on the question of interest. See also, Kent v. Lower, and Shuttleworth v. Stephens, (1 Campb. N. P. 177, 408,) and Maundrel v. Kennett, (Ib. note,) Stevens v. Lynch, (2 Campb. N P. 332.)

But in Coleman v. Wise, (2 Johns. Rep. 165,) Spencer, J. in delivering the opinion of the court, considered the rule laid down by a majority of the court, in the case of Winton v. Saidler, as too solemnly settled to be disturbed. The same rule appears to have been adopted, on the authority of Waiton v. Shelly, in the supreme court of Pennsylvania, in the case of Stille v. Lynch, (2 Dallas, 194,) and in the supreme court of Massachusetts, in the cases of Warren v. Merry, (3 Mass. Rep. 27,) and Churchill v. Sutter, (4 Mass. Rep. 156.) The supreme court of errors, in the state of Connecticut, in Allen ve Holkins, (1 Day's Rep. 17,) appears to have adopted the rule laid down in Walton v. Shelly, in its full extent, that a person was not a competent witness to impeach a deed or instrument in writing which he had subscribed. But in Webb v. Danforth, (1 Day's Rep. 101,) the same court held, that a party to a written instrument might be a witness to facts, subsequent to its execution.

So in Warren v. Merry, the supreme court of Massachusetts held, that the maker of a note was a competent witness to prove any facts happening after he negotiated the note, if he was not interested; and this court, in Baker v. Arnold, (1 Caines, 258,) held that the endorser of a note was a competent witness to prove that the endorsement was made after the note was due Winton v. Saidler.

myself, in this decision, to the particular case of negotiable notes, and do not mean to say, generally, that in no case whatever, a party to any instrument shall be permitted to impeach it.

Judgment for the plaintiffs.(6)

" The

though Livingston, J. and Thompson, J. thought the witness incompetent, within the principle laid down in Winton v. Saidler.

See further, Baring v. Reeder, 11 Hen. & Munf. 174,) in the supreme court of Virginia, the opinion of Lyon, J. who adopts the case of Walton v. Shelly as the best law. The supreme court of South Carolina, in the case of Canty v. Sumter, (2 Day's Rep. 93,) also adopted the rule of that case. Sed quære.

(6) Mr. Smith in his note to Bent v. Baker, (3 T. R. 27,) says: courts ever since Bent v. Baker, have evinced a laudable desire to let in truth wherever precedent will admit it, by holding objections to apply rather to the credit than the competency. Bent v. Baker was followed by Smith v. Prager, (7 T. R. 60 ;) and by the celebrated decision in Jordaine v. Lashbrooke, (7 T. R. 601,) which is remarkable because, while it recognized the general principles laid down in Bent v. Baker, it afforded Lord Kenyon an opportunity of correcting the report of that case, as to certain expressions there attributed to him. That was an action against the defendants, as ac. ceptors of the following bill of exchange :

“ Hamburg, 30th December, 1796, for 1001. At three usances, pay this my first bill of exchange, to the order of Messrs. J. Thynne and Co., 1001. sterling value in account, and place it to account of G. W., as advised by David Heur Meyer.

“ To Messrs. T. Lashbrooke and Sons, London.”

Accepted by the defendants, and indorsed by Messrs. Thynne and Co., the payees.

At the trial, Thynne was called by the defendants to prove, that although dated at Hamburgh, the bill was drawn in London, so that it was not receivable in evidence for want of a stamp. The witness was objected to on the ground of incompetency, but received by the L. C. J. Kenyon, and a rule for a new trial on that ground discharged. “ The proposition,” said Lord Kenyon," altempted to be established for the plaintiffs is, that for some techinal reason, or for some reason of policy, a court of justice must shut its ears, and not suffer facts to be laid before them by a witness who is not infamous in character, and who has no interest in the cause. If the law be so, there is some novelty in it. I have always understood the law to be, that where a witness is infamous, and his record of conviction is produced, or where he is interested in the event of the cause, he cannot be received; but to carry the rule beyond that, would be extending it further than policy, morality, or the interest of the subject requires. The rule contended for by the plaintiff is ibis, Winton v. Saidler.

that however infamously you, the defendant, may have been used, whatever may

be the rights of other persons, if I, the plaintiff, the party to the fraud, can get on the instrument the name of the person who may be the only witness to the transaction, I will stand entrenched within the forms of law, and im. pose silence on that only witness, though he be a person of unimpeachable character, and not interested in the cause.' But I cannot conceive on what ground such a proposition can be established. It is contradicted by every hour's experience. It would tend to show, that a party to an instrument shall not be permitted to contest its validity in a court of law, not only by his own evidence, but by any evidence whatever. But in actions brought on bills of exchange and notes of hand. it is permitted to the defendant to show that the bill, or note, was given on an usurious or gaining consideration ; that is proved by every day's experience; then the general proposition is not true. But does the policy of allowing such a defence to be made apply to this case as strongly as to those ? Precisely the same. And not finding any case prior to Walton v. Shelley, (1 T. R. 296,) in which such a defence was excluded, I cannot bring my mind to assent to the authority of that case.

This is one of the most important questions that can be discussed. On the rules of evidence depend the facts of every question that can be discussed, and, therefore, it is of the utmost importance to preserve those rules. It has been argued, that the defendant is estopped in this case ; but estoppels are odious, and not to be extended farther than the law has already carried them. The word estoppel does not apply to such a case as the present. When the drawee accepts a bill, he admits it to have been signed by the person by whom it professes to have been made ; but he does not thereby admit that the holder of the bill is in a condirion to enforce payment of it. Most of the cases cited I admit to be law. That of Bent v. Baker, is of great authority. It came here on a writ of error from the common pleas; and though a writ of error was afterwards brought to reverse our judgment, it was at length abandoned. But I wish to correct an expression imputed to me in the report of that case, ! that where a person has signed a negotiable instrument, he sball not be permitted to invalidate it by his testimony. Because having frequently weighed this subject in my mind, and having not only entertained a contrary opinion, but having also always acted on that opinion at Nisi Prius, I think I never could have used the expression imputed to me. The case of testamentary witnesses cannot, in my opinion, be distinguished from the present; and if not, there is abundant authority in support of my opinion. Sir J. Jekyll always permitted the subscribing witnesses to a will to give evidence to impeach the will, and the same thing was also done in Lowe v. Joliffe, (1 Bl. 365.)” The principle of Walton v. Shelley, (1 T. R. 296,) after being sustained in the principal case; Steinback v. Rhinelander, (infra, 269 ;) Colman v. Wise, (2 Johnson, 165 ;) and Mann v. Swan, (14 Johnson, 270;) and recognized in a number of other cases, was at length overthrown in New York, and the rule in Jordaine v. Lashbrooke, (7 T. R. 599,) adopted. (Williams v. Walbridge, 3 Wendell, 415. Stafford v. Rice, 5 Cowen, 23. Bank of Utica v. Hilliard, id. 153.) The decisions in Virginia, (Taylor v. Beck, 3 Randolph,

Winton v. Saidler.

316.) Connecticut, ( Townsend v. Bush, 1 Connecticut, 260.) Massachusetts, to prove defence of usury under the stat. of 1926, c. 27, 95, (Little v. Rogers, 1 Metcals, 108.) South Carolina, (Knight v. Packard, 3 M'Cord, 71 ;) Tennessee, (Stump v. Napier, 2 Yerger,35.) Maryland, (Ringgold v. Tyson, 3 Harris & Johnson, 172.) New Jersey, (Freeman v. Brittan, 2 Harrison, 191. Heath v. Everson, id. 245.) North Carolina, (Grey v. Hall, 3 Murphy, 151. Georgia, Stack v. Moss, Dudley, 161. But see Wendell v. George, R. M. Charlt. 51.) Alabama, (Todd v. Stafford, 1 Stewart, 199. Davidson v. Lone, | Alabama, 133. Griffing v. Harris, 9 Porter, 226.) Illinois, (Webster v. Vickers, 2 Scammon, 295.) And Missouri, (see Bank of Missouri v. Hull, 7 Missouri, 273,) agree with the later decisions in New York.

On the other hand the decisions of the United States courts follow the rule as laid down in Walton v. Shelley, (ut sup. Henderson v. Anderson, 3 Howard, 73. Bank of U. S. v. Dunn, 5 Peters, 51. 57. Bank of Metropo. lis v. Jones, 8 Peters, 12. U. S. v. Lifler, 11 Peters, 86, 94, 95. Scott v. Lloyd, 12 Peters, 149. Taylor v. Luther, 2 Sumner, 235. Per Story, J.)

And the decisions in Maine, (Clapp v. Hanson, 3 Shepley, 345. Buck v. Appleton, 2 id. 284. Deering v. Sautel, 4 Greenleaf, 191. Chandler v. Morton, 5 id. 374. See Lane v. Padelford, 2 Shepley, 94.) Massachusetts, (Thayer v. Crossman, 1 Metcalf, 416. Churchill v. Sutor, 4 Massachusetts, 156. Purker v. Lovejoy, 3 id. 565. Barker v. Prentiss, 6 id. 430, 434. Widgery v. Monroe, id. 449. Jones v. Cooledge, 7 id. 199. Mannin v. Wheatland, 10 id. 502. Fox v. Whitney, 16 id. 118. Packard v. Richard. son, 17 id. 122. Hartford Bank v. Barry, id. 94. But see Van Schaak v. Stafford, 12 Pickering, 565. American Bank v. Jeune88, 2 Metcalf, 288.) New Hampshire, (Bryant v. Rattlebush, 2 New Hampshire, 112. Hadduch v. Willmarth, 5 id. 187. Houghton v. Paige, 1 id. 60.) Vermont, (Chandler v. Mason, 2 Vermont, 198. But see Nichols v. Holgate, 2 Akin, 138.) Pennsylvania, (O'Brien v. Daris, 6 Watts, 498; Harrisburgh Bank v. Foster, 8 id. 304, 309. Ross v. Wells, 1 Stewart, 139. But see Todd v. Stafford, id. 199.) See a very complete review of the American decisions in Messrs. Cow. & Hill's Notes to Phill. Ev. 71-81; 1 Greenl. Ev. ed. 1842, p. 430. See also Smith's Leadg. Cas. by Hare and Wallace, Notes to Bent v. Baker. Mr. Hare in commenting on the rule in Walton v. Shelley, observes: "except in as far as it may be comprised in the common-law doctrine of estoppel, it has been everywhere decided to apply only to those instrnments which are negotiable in their character; though in the terms in which it was expressed by Lord Mansfield, it extended to all instruments in writing, of whatever description. (Pleasants v. Pemberton, 2 Dallas, 196; Barren v. Shippen, 2 Binney, 165 ; M'Ferran v. Powers, 1 Sergeant & Rawle, 107; Krank v. Krank, 4 W. & S. 128; Dickinson v. Dickinson, 9 Metcalf, 471; Blagg v. Phenix Insurance Company, 3 Washington C. C. R. 5; Loker v. Haynes, 11 Masachusetts, 498; United States v. Leffler, 11 Peters, 95.” See 1 Stark. Ev. ed. 1842, p. 164, et seq.; 2 id. 256, 257, and note a ; Chitty on Bills, Am. ed. 1842, 669, and n. 1.)

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