Ringgold v. Tyson , 3 H. & J. 172 ( 1810 )

Ckask, €h. J.

In this case, which isa suit brought by the endorsee of a negotiable promissory note against the drawer, three questions on bills of exceptions are broughí before this court for their decision.

The Jirst question is, whether the endorsor can be received ás a witness to prove payment of tíre money to the ylain tií?

The second question is, whether he is a competent witness tci prove the note was given on an usurious consideration?

The third question is, whether the endorsee of a promissory noté can recover in his own name on an endorsement in blank?

The two first questions are of the greatest importance, and have claimed the particular attention of the court, because on our judgment depends one of the principal rules of evidence which will be adhered to or relaxed accordingly, in this state, in future.

These questions have been ably discussed by the counsel for the parties, and all the cases and law relating to them have been brought before tiie court, and with great Strength of argument observed on.

The objection to the endorsor being received as a witness, is grounded on the rule laid down in Walton vs. Shelly, that no person shall be admitted as a witness to impeach or invalidate an instrument or writing which he has signed and given credit to.

This is acknowledged to be a rule of policy, and adopted by the court in that case in conformity to a maxim of the civil law, nemo allegam swam inrpitwdinem est awdiendus. This as. a rule of evidence was unknown in the-common law courts in England prior to that case. '

The rule that prevailed antecedent to that time, and as n rule of the common law, is, that every person not interested in the event of the suit was admissible as a witness,

' It is certain this rule was deviated from, and I think infringed by the decision of the court in that case; and the evils resulting from it as’ a general rule pressed so hard upon the court, and involved them in so many difficulties, by interfering with the decisions of the courts in other cases, as to induce them to modify it; and in three yearsafterwards they restricted it to the case of negotiable instruments; and after relaxing it from time to time, they exploded it in the case of Jordain vs Lashbrooke, 7 T. R. 601, and re-established the rule which prevailed according to the principles of the common law.

Unquestionably the rule in Walton vs. Shelly cannot prevail as a general rule, because in the cases of wills, deeds and bonds, the witnesses to them may be examined to impeach their validity; in the first case to prove the insanity of the testator, in the second caseto prove the deed was not sealed or delivered, and in the third case to prove the bond was given on an usurious consideration — or that the obligor was unlettered, and that the bond was not read or was misread to him. The witnesses in these cases, by their attestations, held out there was no legal objectiou to the.», and that they will prove those requisites which aha essential to their validity.

The\lecir;ion in Walton vs Shelly is overruled by the court in Jordaine vs. Lashbrooke, and the law considered as settled in England. The cases at nisi pr ¿ns conformed to Walton vs. Shelly, while it remained the ruling decision, although the courts indicated an inclination to modify and relax the restriction. -Lord Mansfield said, the rule is founded in policy, and on that ground it was adopted. It is the duty and province of the court dicere non legem, and if the rule was not known at that time as a rule of evidence at the common law, the court’s opinion as to its policy would not warrant them in the adoption of it.

An accomplice is a legal and competent witness against the principal, and in giving testimony must declare his own turpitude and participation in the crime, which is a circumstance that impeaches his credit. The maxim of the civil law, when considered with reference, to the common law, may be understood as affecting the credit of the witness, and declaring that he stands in that predicament which renders his testimony suspicious, and that he ought to be heard with caution.

At one time an underwriter on a policy, i« a suit against another underwriter on the same policy, was held to be au incompetent witness, and rejected from the supposed bias on his mind resulting from a community or similarity of interest. That doctrine has been exploded as a deviation from, or infringement of, the common law rule, of evidence, that every person who is not interested in the event of the suit is a competent witness. An heir at law is admitted as a witness in a suit brought by his ancestor, relating to the bounds of his land, notwithstanding the bias on his mind from the expectation of his inheriting the laud. All these cases indicate plainly, and recognize the rule; tliat a person not interested in the event of the suit is a competent witness, and cannot be incapacitated by the situation in which lie stands, from whence a bias’ on his mind is inferrable.

It is the peculiar and exclusive right arid province of the jury to decide on the credit of witnesses, and the court cannot declare them incompetent, from any conjectural influence on their minds inclining them to favour one party , more than the other; the jury, in forming their opinion; Will consider all circumstances attending the witness in. giving his testimony.

The common law is paid of the law of Maryland, and cannot be abrogated or impaired by any principle or maxim of civil law. The rule of evidence, so often recurred to, is a rule established by the common law, and was in full force and operation ini this state, at the time of the decision in Walton vs. Shelly, which introduced the maxim of the civil law, as an exception to that rule, on the ground of policy.

That decision has been the ground of the judgments in the courts of the states, and their decisions must rest on that authority, and cannot be entitled to more weight.

The maxim of the civil law may be considered as confined to the parties, and was so considered by the judges, (Gross and Lawrence.)

A plaintiff, whose action arises exturpi causa, shall not be heard in alleging his own turpitude in support of his action against a particcps criniinis.

To illustrate the position, A promises B a sum of money if he will grant him an office which concerns the administration of justice, or procure it to be granted, and the office is obtained, and A refuses to pay the money — B cannot recover it. So if A-gives . B a sum of money to procure him an office, and B so expends the money, and the office is not obtained, A cannot recover the money of B,' or the person to whom it was paid.

So in the case of simony, where A promises to pay B a sum of money if he will procure him to be presented and instituted to a chapel, which was a donative in the King's gift; and B does procure him to be thus presented and instituted, B cannot recover the money of A.

In support of such actions the plaintiffs cannot be heard because of the illegality and turpitude of the consideration.

As to the third question. The legal operation of an endorsement in blank, in cases iu which the sum is filled up in the bill, confers a right in the holder to consider it as a transfer to himself, or an authority, to receive the money from the drawee, for the use of the endorsor, and he makes his election accordingly, by filling it up as a transfer or authority; and as it has not been filled up as a transfer in this case, the plaintiff below cannot support the action.

Pome and Buchanan, J. concurred Gantt, J. dissented,