Evans v. Dela

The opinion of the court was delivered by Strong, J. Post v. Avery, 5 W. & S. 509, in which the first, departure was made from the doctrine of Steele v. The Phoenix Insurance Company, 3 Binn. 306, certainly never was intended to render persons incompetent as witnesses who wer.e competent at common law. Had it been, it would have been a step in the wrong direction. The results of experience have been such that courts have been constrained, as far as possible, to regard objections as affecting the credibility rather than the competency of witnesses. Indeed, it seems not to have been contemplated, when Post v. Avery was decided, that thereby the general rule, established in Steele v. The Phoenix Insurance Company, was unsettled.. All that was designed was a qualification. The consequences of the decision were not foreseen, but, like the letting out of water, that which was a streamlet at first, soon became a flood, until in McClelland v. Mahon, 1 Barr 364, the rule was entirely [458] swept away. Numerous other decisions followed, perhaps not all entirely accordant with each other. They profess, however, to aim only at a return to the common law rule, not to introduce new reasons for excluding a witness, or to recognise objections to competency which were unknown to the common law. It is ■not to be doubted, that in England, even without her recent legislation, and in our sister states, Tilden would be held to have been a competent witness. He was not a party to the suit, and he had no interest in it; he had passed the note to the plaintiff, it is true, but his name did not appear upon it; he had passed it by delivery, not endorsement. Nor was the plaintiff compelled to make title through. Tilden, as was the fact in the cases generally which have followed Post v. Avery. His right to sue was complete, as endorsee of the payee. ■ Unless, therefore, in departing from Steele v. The Phoenix Insurance Company, we have drifted in the opposite direction far beyond the doctrine of the common law, the testimony of Tilden was properly received. "We do not propose to review the cases adjudicated since Post v. Avery. It may suffice to'observe, that most of them have in view common law contracts. None of them have ruled that an endorser of a promissory noté'’(being released) is not a competent witness for the endorsee, in a suit against the maker, except Hatz v. Snyder, 2 Casey 511. Bailey v. Knapp is sometimes supposed to be another, but erroneously. There the witness was excluded, but the contract upon which suit was brought, was not, in fact, a promissory note. ■ It was rather an oral agreement alleged to have been made by the defendant with the witness. Without his testimony there was not even a primd facie case. He was, therefore, held to be incompetent under the ruling in Post v. Avery, and he would have been incompetent at common law. Between parties to promissory notes or other negotiable instruments, and parties to other contracts, the law always made a wide distinction. The assignee of the former may bring suit in his own name; not so with the assignee of the latter. He must use the name of the legal party, and the law recognises no other. Hatz v. Snyder, it must be conceded, did decide that the payee of a promissory note was, even after release, incompetent to testify for his endorsee, in a suit against the maker. Yet even that case did not go to the great length of ruling that one who never was a party to a note, who never endorsed,-but simply transferred it by delivery, is to be excluded. Nor can we so hold without introducing new rules of evidence more stringent than any the common law ever adopted. The witness was, therefore, properly permitted to testify. There is nothing in any of the other errors assigned, and none of them require particular observation. If Tilden was a competent witness, his testimony, if believed, established the right of [459] the plaintiff to recover, and the evidence offered and rejected was immaterial. And even without Tilden’s testimony, it could not have availed the defendant. It could not avail to prove that the note upon which the suit was founded was anything other than a business note, such as the law presumed it to be.' Nor do we discover in the case evidence of any fraud to affect the holder of the note, or of anything which interposed an obstacle in the way of his recovery. The judgment is affirmed.