O'Brien v. Davis

The opinion of the Court was delivered by Gibson, C. J. We have long restricted the rule in Walton v. Shelly, to responsibilities from'endorsement in the regular course; and. the difficulty here, is in the apparent position of the witness as an indorser, called to prove the contest to be in fact, betwixt original parties appearing not to be such on the note; and this, in seenaing contradiction of Griffith v. Reford, 1 Rawle 196; in which, the drawer, whose name had given credit to the paper, was not suffered to make himself a witness against an endorsee, by proving the consideration usurious": The action there, however, was by an endorsee against an endorser; and the position of the witness as the drawer, furnished a prima facie- objection to his competency, which he himself was incompetent to remove. Here, his position is exactly the reverse. The action is by the first endorser against his immediate endorsee; and being in disaffirmance of the endorsement, it is not founded on that responsibility which it is the business of the rule to protect. The very nature of the demand rebuts the commercial character of the transaction, which prevailed in Griffith v. Reford. The plaintiff, who has again become the holder by payment to the bank, attempts, on the authority of Leech v. Hill, 4 Watts 448, to enforce paramount, the actual endorsement, a special agreement put in writing inaccurately, or rather not at all, by the unskilfulness of the scrivener; of which, the defendant’s name is proposed to be used as a part of the written evidence. Now the rule obtains for the protection only of a holder, and one who became so by endorsement, as is evident from, the fact that it has no place where the paper has not been negotiated; and it consequently disqualifies no one who did not precede him in the order of negotiation; for the policy which protects him, regards but those whose names induced him to become a party to the transaction. Why might he not obviate all pretence for objection by striking out, as he may do in other cases, the .name of the witness as a subsequent endorser? The defendant could not prevent it, or object to it, because he cannot have recourse to the witness on any event, and because, whatever of mercantile responsibility there maybe on the part of those who preceded him, would be unaffected by it. However that may be, it is more than questionable, whether the rule holds in any case where the action is collateral to the endorsement. The extension of. it is certainly not to be encouraged; for [500] that it continues to receive even a qualified allegiance, is due to the consideration that it originated in the notion of an extraordinary man. Its operation is restricted where it has not been abolished; and that it will in time become extinct among us, as it already is in England and most of the American states, requires but little skill in divination to predict; and though we are still bound to enforce it in proper cases, we are not bound to enlarge the field of its action. The other exceptions turn on the same point, and require no particular illustration. Judgment reversed, and a venire facias de novo awarded.