St. John's Administrator v. McConnell , 19 Mo. 38 ( 1853 )

Scott, Judge,

delivered the opinion of the court.

Darby brought an action on a promissory note against McConnell, which was executed by J. Y. Munn, for M. McConnell & Co. There was a judgment for the plaintiff. The only question in the case is, whether Munn, the agent, who executed the note for McConnell & Co., was a competent witness for the defendant, Murray McConnell.

1. This suit was begun before the late law concerning practice went into force; the competency of the witness, therefore, must be tested by the rules of the common law. An assumed agent may be received either to prove or to negative the fact of his being such agent. Hill & Cowen’s Notes, 255. Cox’s adm’r v. Hill, 3 Ohio, 423. Paley on ’Agency, by Dunlap, 387, note 13. The rule in Walton v. Shelley, 1 Term, 296, that nemo allegans suam turpitudinem est audiendus, has never been received in this state. Bank of Missouri v. Hull, 7 Mo. 276. As it has been suggested that Collins is dead, we will not examine the question as to his competency.

The other judges concurring,

the judgment will be reversed and the cause remanded.