Davenport v. Freeman

The opinion of the Court -was delivered by Sergeant, J. Both the objections made in the court below to the competency of Earl as a witness, have been already repeatedly decided by this court to be sufficient. The first is, that he is interested in procuring a verdict for the defendants; for, although he would be liable to a suit by the plaintiffs on his note, notwithstanding they should fail here, yet if they succeed, he would be liable over to the defendants, the endorsers, for the costs of this suit, in addition. He has therefore more to gain by the defendants’ success, than by the plaintiffs’. This point has been decided in the cases of The Bank of Montgomery v. Walker, (9 Serg. & Rawle 239), and Smith v. Thorne, (9 Watts 144). The other ground of objection is, that he is the maker of a negotiable note, which passed into the hands of the plaintiffs in the common course of business, as is proved by S. P. Johnson, the witness for the plaintiffs, who says it was delivered to him, as agent for the plaintiffs, as a collateral security for a judgment [558] which the plaintiffs had obtained against Earl. Earl is then offered by the defendants, to show that it was not so; but that it was delivered to the plaintiffs, on condition that they would enter satisfaction to that amount on their judgment against Earl, and that they failed to do so. The tendency of this evidence is to change the consideration on which the note was delivered to the plaintiffs, and to invalidate the note, by reason of their not complying with the condition. This brings the case directly within the point repeatedly decided, that a party to a note shall not be permitted to invalidate it, in the hands of the holder, by showing it was not received in the course of business; and that it was given for a consideration, which has failed. In Gest v. Espy, (2 Watts 268), Mr Justice Rogers, in delivering the opinion of the Court, says, the rule in Pennsylvania, whatever it may be in our sister States, is, that a party to a note cannot be a witness to invalidate it when it is strictly negotiable, and has been actually-negotiated. This rule is founded on policy, which protects holders of negotiable paper, who have become so in the common course of business. See also Hepburn v. Cassel, (6 Serg. & Rawle 115); Baird v. Cochrane, (4 Serg. & Rawle 399); Cromwell v. Arrott, (1 Serg. & Rawle 183); Bank of Pensylvania v. M’Calmont, (4 Rawle 311); Harrisburg Bank v. Forster, (8 Watts 309). In Griffith v. Reford, (1 Rawle 196), in a suit by the holder against the endorser, the maker was called by the defendant, to show that the consideration on which the notes were received by the plaintiff, was usurious; and it was determined that the witness could not remove an apparently well-founded objection to his own competency, by his evidence tending to destroy the validity of the note. This case is confirmed iñ Jarden v. Davis, (5 Whart. 338), and Emerick v. Harley, (2 Whart. 50). After so many decisions, it is surely time to cease to agitate the point, or else it is a vain effort to attempt to settle any point of law by the decisions of the court. ' In the charge of the court on the other points, I perceive no error. The question, whether demand and notice of non-payment of the note was waived by the defendants, was properly left to the jury as a question of fact. And if the jury believed that the note was endorsed by the defendants, and delivered to the plaintiffs, on condition that the plaintiffs should satisfy the judgment against Earl to the amount, as is sworn to by Earl, and the plaintiffs afterwards refused to perform that condition, it seems to me to be sufficient to defeat the plaintiffs’ recovery on the note. Judgment reversed, and venire facias de novo awarded.