Elias v. Teill ( 1836 )

The opinion of the Court was delivered by

Pettit, President

(after stating the facts). If the only plea of the defendant were payment, the verdict upon the issue thus formed could be used as evidence in another action against the indorser, and would in such action be conclusive against the plaintiff. The in-dorser could not then be a witness in the present suit, as his interest would be direct and immediate. If, however, there were any other plea, with or without the plea of payment, the verdict in this action could not be so used, and the fact of payment would, in another suit, require other proof. The indorser could then be a witness in the case at bar, as he would have no disqualifying interest. Upon principle, tiie state of the pleadings would thus seem to furnish the criterion by which to admit or to reject the testimony of the indorser of a promissory note in an action by the indorsee against the maker. In Charrington v. Milner, Peake’s N. P. Rep, 8, lord Kenyon admitted the indorser to prove payment, the brief report of (he case not showing the state of the pleadings. In Humphreys v. Moxon, in the same book, page 72, his lordship, in a suit by the indorsee against the acceptor of a bill of exchange, thought the objection to the competency of the drawer to be a good one, where due notice had been given to him of the dishonour of the bill, inasmuch as by proving the bill paid he destroyed it, and would eventually discharge himself. But in Cooper v, Davies, 1 Esp. N. P. Rep. 463, which was an action on the case on a promissory note by the indorsee against the maker, where the plea was the general issue, the same learned judge, a few years afterwards (in 1735), overruled an objection to the competency of the indorser, and admitted him to prove payment of the note. Chilly, in his Treatise on Bills, &c., page 400, and Starkie, in his work on Evidence, vol. 2, p. 300, state the rule to be, that in an. action against the maker of a note the indorser is a good witness to prove it paid. They both refer to Charrington v. Milner, Peake’s JY. P. Rep. 8.

In the case before us the pleas were non assumpsit and payment. If the lest above intimated be correct, the witness was competent. If the decision of lord Kenyon, as recognised and adopted by Chilly and Starkie, has given a rule to the English courts, then by that rule the witness was properly received. Were the question an open one in Pennsylvania, this court might feel bound therefore to refuse to disturb the verdict.

But the point is found to have been at least twice determined by our supreme court, whose decisions furnish a rule different from that supposed to be a part of the English law. In Sterling v. The Marietta and Susquehannah Trading Company, 11 Serg. & Rawle 179, the action was brought by the defendant in error, the indorsee of a promissory note, against the plaintiff in error, the indorser, for whose accommodation the note had been drawn. The deposition of the drawer, one Skinner, was offered in evidence by the defendant and rejected by the court below. Chief Justice Tilghman, in delivering the opinion of the supreme court, says, “ the deposition of Skinner was rejected very properly. Skinner was interested as drawer of the note. It was an accommodation note, and if the defendant had succeeded in this suit, Skinner would have been altogether discharged, so that his interest was immediate.” As drawer of an accommodation note, Skinner there stood in the same relation to Sterling the indorser, who was primarily liable, as Dillinger did to Teill in this suit. Though the question now submitted was not the main one in that cause, yet it was distinctly presented and distinctly decided. In Rhodes v. Lentz, 3 Watts 365, the action was for work and labour, but the case turned upon the question whether a particular payment was made on account of work and labour, or on account of a certain promissory note held by the plaintiff, and of which one of the defendants was the maker. The indorser of the note was offered to prove that the payment was made on account of the note. The court below admitted the witness. Upon a bill of exceptions, the supreme court reversed the judgment, and awarded a venire de novo. They held the indorser to be incompetent, upon the ground that by having the money appropriated to the note, and that appropriation sealed by a verdict of a jury and judgment of a court, which rendered it unalterable, the plaintiff’s claim against the indorser would be thereby paid and satisfied.

The distinction as to the plea of payment, which, with the utmost deference to superior wisdom and authority, we have ventured to suggest, was not adverted to in either of the two cases just cited. As adjudications upon the very point, those cases are conclusive upon this court. It only remains for us to say, therefore, that the witness should have been rejected.

Rule absolute.