Harding v. Mott

The opinion of the Court was delivered, by Black, C. J. The principal point argued in this case is, whether the endorser of a promissory note is a competent witness for the defendant in an action by the endorsee against the maker, to prove that the note was without consideration, and that 'the endorsee knew that fact when he took it. In Walton v. Shelley (1 Term Rep. 296), it was ruled that a witness could not be heard to impugn a paper to which he had set his own hand. Ten years afterwards this rule was repudiated by the same Court which established it (Jordaine v. Lashbrooke, 7 Term Rep. 600). In New York it was adopted in Winton v. Saddler (3 Johns. Cases), and abandoned afterwards in Stafford v. Rice (5 Cowen 25), Bank v. Hilliard (5 Cowen 158), Williams v. Walbridge (3 Wendell 416). But several of the other states have received the doctrine in a modified shape, and maintained it steadily; for instance, Massachusetts, Maine, and New Hampshire. It has received the express endorsement of the Supreme Court of the. United States, in the Bank v. Dunn (6 Peters 51), and in the United States v. Leffler (11 Peters 95). In Pennsylvania it was recognised in Pemberton v. Pleasants (2 Dall. 196), and has been adhered to by this Court ever since, in a great number of cases, [472] though in Griffith v. Reford (1 Rawle 197), it escaped an overthrow very narrowly, Huston and Todd, Justices, being both opposed to it. Since the last-mentioned case, which was decided in 1829, the question does not seem to have been considered an open one (Gest v. Espy, 2 Watts 268; Parke v. Smith, 4 W. & Ser. 289; Gilpin v. Howell, 5 Barr 51; Bank v. Fordyce, 9 Barr 276; Wilt v. Snyder, 5 Harris 77). It must be remembered that the rule, as understood in this state, is confined strictly to negotiable instruments, and does not apply even to them unless they have been actually negotiated, and that in the regular course of business, previous to their maturity (5 Harris 77). The note before us appears on its face to have been so negotiated, and the offer is to prove that it was not by a witness whose name is on the back of it, and then to establish by the same witness certain facts which made it worthless at the time he transferred it to the plaintiff. But he cannot be received for that purpose. The transaction, as it stands, presents an apparently well founded objection to his competency, which he cannot remove by his own oath. If he is primd facie within the rule that forbids him to invalidate an instrument which he has passed to an innocent holder, he cannot swear himself out of it by testifying that the holder is not innocent. If evidence of any irregularity in the transfer had been given aliunde, then the way would have been open to prove the other facts by an endorser of the instrument as .well as by another. We are not insensible to the reasons ui'ged against this rule in the argument of the counsel for the plaintiff in error. The force of Judge Huston’s dissenting opinion in Griffith v. Reford is also felt, and the strong attack upon the whole doctrine contained in Mr. Hare’s note to Bent v. Baker (2 Smith’s Lead. C. 57), is fully appreciated. But how are we to set ourselves against an unbroken current of decisions which have lasted for half a century, and which have been concurred in generally by all the judges without a murmur of dissent? The authority of our predecessors ever since the revolution, constantly repeated, at intervals of five or six years, is not very easily set aside, even though the rule it establishes was not, in our opinion, quite so well founded in pi'inciple, convenience, or policy as they believed it to be. It is not necessary to decide what would have been the effect of the evidence if it had been given. It was offered to prove that the note had np validity at the time of the transfer. In assuming that it was sufficient for that purpose we but take the plaintiff' in er-ror at his word. But, having proposed to show it by an incompetent witness, it was rightly rejected, whether it would have been admissible through another medium or not. Judgment affirmed.