Routh v. Helm , 7 Miss. 127 ( 1842 )

Mr. Justice Turner

delivered the opinion of the court.

The only question presented for the consideration of the court, is, whether the maker of a promissory note, against whom the holder has obtained judgment, is a competent witness, in a suit brought by an indorsee against the indorser, to prove that the note has been paid. The circuit court decided that he was incompetent.

It is laid down in the case of Bank of Utica v. Hillard, 5 Cow. Rep. p. 159, that before the case of Walton v. Shelly, 1 T. R. 296, A. D. 1786, the rule and its exceptions were, that every person is a competent witness who was not interested in the event of the cause, rendered infamous by crime, or excluded for infidelity. By that case, a new exception was introduced, “that no party who has signed a paper or deed shall ever be permitted to give testimony to invalidate that instrument, which he hath so signed.” This exception continued to be a prevailing one in England, though not universally so, till it was overruled in Jordaine v. Lashbrooke, 7 T. R. 597, 601, A. D. 1798, where the reasoning in Walton v. Shelly was considered, and the ancient rule re-established; Ashurst, Justice, still adhering to the opinion he had given in Walton v. Shelly. He was the only judge on the bench, in 1798, who had also been there in 1786. The doctrine advanced by Lord Kenyon in the latter case, is, that when a witness is infamous, and the record of his conviction is produced, or when he is interested in the event of the cause, he cannot be received; but, to carry the rule beyond that, would be extending it farther than policy, morality, or the interests of the public require. This has ever since been the law in England. But the court in New York, in Winton v. Saidler, 3 Johns. Cases, 185, A. D. 1802, adopted the rule in the case of Walton v. Shelly, which has also been adopted in most of the United States. The question is ably discussed by the judges, who delivered their opinions, and the decision was made by a bare majority of the court. Lord Mansfield and Lord Kenyon differed on this rule, and the argument of the one or the other of those learned men have been urged by those contending for the one or the other of those rules. Lord Mansfield seems tó have founded his argument on the maxim of the civil law: “nemo aligans suam turpitudinem est audiendus,” applying it in this way, every person who has signed an instrument has thereby declared that he knows of no objection to it; and should not afterwards be permitted to contradict this declaration. The allegations of the frauds, which might thus be practised, is met by Lord Kenyon, with supposing that greater frauds may be practised on parties and strangers, by getting the names of all who may be witnesses of fraudulent paper, signed thereto, and then the guilty will stand entrenched in the forms of law. Supposing the danger which we are to apprehend on the score of fraud, to be equally great on the one hand as-on the other, I can see no reason, (says Chief Justice Savage,) for refusing to parties who may be innocent, the benefit of disclosing the whole truth. I cannot believe that justice will be promoted, or the morals of the community be improved, by permitting those, guilty of frauds, to protect themselves from the only witnesses who are supposed to have a knowledge of the facts.

Chief Justice Savage farther says, that the court in New York had been gradually receding from the decision in Walton v. Shelly, and that he was free to declare that he entirely denied the propriety of the exception adopted in that case; and that he considered the old rule, with its ancient exceptions, the only correct one. See Stafford v. Rin, 5 Cowen, 23. That rule is, that every person, not interested in the event of the suit, nor incapacitated by his religious tenets, nor by the conviction of an infamous crime, is a competent witness. All other circumstances affect his credit only.

In our opinion, from all the authorities, the court erred in excluding the witness. He was not called to discredit the paper, or to invalidate the consideration thereof, but to prove matter subsequent to its execution, and a new trial should be granted. Walk. Rep. 540, L. Drake v. J. P. Henley.

Judgment reversed, and cause remanded.