Nichols v. Holgate

The opinion of the court was pronounced by Skinner, Chancellor. The testimony of Lamb is conclusive as to the usury, and the only material question in the case, is whether he is a competent witness. The orator insists, that his deposition ought to be suppressed, upon the ground of interest, and also upon the ground of policy, he having endorsed the note described in the bill, to the orator. It is admitted, that Lamb, after having mortgaged the premises to Smith, the assignor of the orator, conveyed to Holgate for the consideration of 1800 dollars, from which was deducted the nominal sum of the incumbrance, viz. 411 dollars and it is urged, that if Holgate succeeds in reducing that sum, Lamb will be entitled to recover of him the amount of the reduction, but it is not perceived upon what principle such claim can be maintained. It does not appear that Lamb was deceived ; on the contrary, he had a perfect knowledge of all the facts. As well might he set up a claims against Holgate, if Nichols, by reason of having lost, cancelled, or altered, the note, should fail to obtain a decree against him. Indeed, if Lamb has any interest, it is to fasten the whole sum upon Holgate, and thereby secure himself from any demand Nichols might otherwise be induced to make against him upon the notes. Although an action will lie in favour of the orator against Lamb upon the notes, notwithstanding the foreclosure, the sug [140] gestion, that the decree in this case may be given in evidence, is not correct. Lamb is a stranger to the bill, and his rights cannot be affected by the decree, should the. whole sum of 411 dollars be here charged upon Holgate. In an action against Lamb upon the notes, no one can doubt his right to set up the defence of usury, or any other proper matter, and ibis a settled rule of law, that po„ judgment can be given in evidence, but such, whereof the benefit may be mutual. It appears, that Lamb has upon mesne process against Hol-gate, attached the premises, and it is contended, that thereby he is interested. Admitting the existence of a claim in his fa-vour, the interest cannot be recognized in law, it is certainly contingent and very remote. He may succeed in recovering a judgment, or he may not; he may take the estate in execution, or he may take other property, or the body; he may omit execution altogether, or Holgate may pay the debt. But what is conclusive in the case is, that the attachment furnishes no evidence of any existing debt. The delaration of Lamb, (as testified to by Davis,) that Holgate had agreed to give him security upon the land, if the incum-brance was cleared off, furnishes no evidence of interest; proof of the admission of the parly, as to the interest of the witness, is proper evidence; but his right to the testimony of the witness cannot be defeated by declarations of the latter. Upon the other point in the case it is urged, (principally on the authority of the case of Walton and Shelly, 1 T. R. 296,) that upon principles of publick policy, a party who has signed a note, deed, or other paper, shall be excluded from giving testimony to invalidate the instrument. The question is, does the law regard such person as incompetent ? The causes for which a witness shall be excluded are very correctly stated by Lawrence, justice, in the case of Jordan vs. Lashbrook, 7 Term Rep. 601, in which he says, “I find no rule less comprehensive than this, that all persons are admissible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and are not influenced by interest.” The case in which the rule contended for by the orator’s counsel is to be found in that before named, viz. Walton vs. Shelly, and this has not been supported by later decisions. It was overruled by the case already mentioned of Jordan vs. Lashbroolc, and has never to our knowledge been sanctioned in this state. In several recent cases in England, the courts recognize the admissibility of such witness. In the case of Jones vs. Brook, 4 Taunt. 466, chief justice Mansfield says, that it is now the practice to receive persons, whose names are on bills of exchange as witnesses to impeach such bills. The witness, it is true, was in that case held incompetent, but upon the ground of interest, which was not balanced between the parties, the holder being entitled to recover the amount of the bill only, while the claim of the acceptor was for costs also, and all spe [141] cial damage. We believe, with a view to the exclusion of testimony, there is no sound principle of policy that requires the recognition of additional causes. That by the application of the rules already adopted, more evil is experienced from shutting out testimony entitled to credit, and approved by well balanced principles of policy, than would be prevented by seeking for new causes as a ground for excluding that which may be regarded as suspicious or opposed to some principles of morality or policy. The usury must therefore be deducted from the notes and a decree against Holgate for the balance, the usual time for redemption being allowed; and no costs will be allowed to either party. Brown, the other defendant, is entitled to full costs, in as much as he acquired no interest in the premises by the attachment which the mortgagee was bound to notice.