Alexander v. Alexander ( 1846 )

Burnside, J.

Silas, Cyrus, and Joseph Alexander were the drawers of a note payable at the Lewistown Bank, to the order of James Alexander, who endorsed it. The note was discounted, and the proceeds paid to James Alexander. All this was in the usual course of business. It was not paid at maturity, was protested, the drawers sued, and judgment obtained against them. Cyrus Alexander paid the bank, and obtained an assignment of the judgment. Cyrus and Silas were partners, and they brought this action against James Alexander, the payee of the note, and offered Joseph, their co-drawer, to prove that the defendant was to. pay it to the bank at maturity, and on that condition they became the drawers of the note. The court below rejected the witness, and this is assigned for error. It is the only material question in the ease.

In Stille v. Lynch, 2 Dall. 194, it was ruled, that the endorsee, the original payee, who had become a bankrupt, could not be a witness to prove the want of consideration, in an action against the drawers.

.Joseph Alexander was one of the makers of this note, and engaged to pay it at maturity to the order of the defendant. This was done by his co-drawers, and now they seek to recover back the money in the teeth of their written engagement; and Joseph seeks to be discharged from contribution, by swearing that the payee of the note was to pay it to the bank when due.

I think, on the ground of policy, no release by his co-drawers will make him a competent witness against the very face of his written engagement. The rule, that a party shall not be a witness to invalidate his own instrument, is confined to negotiable notes, and when they are negotiated in the ordinary course of business before maturity, the rule has never been departed from in Pennsylvania. Bank v. Wallace, 9 Serg. & Rawle, 236.

To admit Joseph Alexander in this case as a witness, would enable two or more drawers of a note to combine, and to compel the payee, or any other endorser, to refund them the amount of the note which they had engaged to pay. It would be a worse principle to adopt, than permitting the assignor of a chose in action, to be a competent witness for the plaintiff. Patterson v. Reed, 6 Watts & Serg. 145.

It will not do to permit the drawers of a note to prove, by their own testimony, that they are not to be held liable to the payee. It would be fixing on the payee of a note a liability, which the drawers had assumed. When it is done, it must be by other evidence than their own testimony.

Judgment affirmed.