
    Stephen Duncan vs. James Watson, Administrator of Benjamin. Blanton, deceased.
    Where the record of a deceased notary, of a protest of a promissory note made by J. W. contained the words, “ Notices to J. W. G. Port:” Held that these words were properly admissible to the consideration of the jury, to prove notice of the protest to J. W.
    It is incompetent to prove, by the clerk of a deceased notary, what was the meaning intended by the notary, of the words, “ Notices to J. W. G. Port,” indorsed upon the notarial record, in the hand-writing of the notary.
    A letter from the defendant, the indorser of the promissory note, sued on, oh the subject of arranging a note with the plaintiff, is competent testimony, coupled with other proof, for the consideration of the jury.
    Where an executor or administrator is sued upon an indorsement of a note, made by his testator or intestate, that matured after his death, and since their appointment, it is competent to prove the admissions of the executor or administrator, that he received notice of the protest, unless the executor or administrator is in readiness at the time of trial, and announces his willingness to testify in the case.
    A party to a record, cannot, in any case, be compelled to testify, for or against his interest. It is only when he consents to be examined, that he is admissible in any case.
    In error, from the Claiborne circuit court.
    Stephen Duncan sued James Watson, as administrator of Benjamin Blanton, on a note of C. Jefferson, indorsed by Blan-ton, for $ 1100, due Jan. 1, 1836.
    At May term, 1842, judgment was rendered for the defendant on the verdict of the jury in his favor; bills of exception were taken at the time of the trial.
    The bill of exceptions shows that on the trial, the plaintiff read in, evidence the note sued on, and the indorsement of B Blanton, and the protest of Joseph B. Lyons, notary.
    The plaintiff then produced the original record of protests . and notices kept by Lyons, and offered W. R. C. Ternon, a witness, who testified that Lyons died in February 1837, in Natchez; that he was a notary public; and that witness was a relative, and boarded in the house with him on the 4th of January, 1836, and assisted him in making his protests and notices on that day. That the record and protest and memorandum of notices of the protest, of the note in suit, in the record, are all in the hand-writing of Lyons. That Lyons kept a regular record of his notarial acts, and universally entered in said record, kept by himself, exact copies of notes or bills protested; and in the margin, or on the back of the record of protests, he made memorandums of the manner of giving notices, after notification to the indorsers, whenever his health and business would permit him to do so; ;and that the record before the court, was the original record of protest and notices kept by Lyons; and the entire record of the protest and notices of the note in suit, and every memorandum on the same, are in the hand-writing of Lyons.
    The plaintiff then offered in evidence, said original record, and copy of the note, and the following memorandum on the back of the leaf: “Notice to James Watson, administrator of B. Blanton, G. Port,” which was ruled out by the court.
    Plaintiff then offered to prove by Ternon, that it was the universal custom and habit of Lyons, to send notices of demand and protest to the indorser, on the day next succeeding that of the protest of notes and bills, which was objected to, and ruled out.
    Plaintiff then offered to prove by Yernon, that he understood by the memorandum, on the back of said protest, in said record, that notice had been regularly sent to said Watson, as,administrator of said Blanton, on the day after the day of the protest to Port Gibson, by mail, which was also objected to, and ruled out by the court.
    Plaintiff then offered a letter, admitted to be in the hand-writing of defendant, Watson, in these words :
    
      “ Claiborne county, March 15, 1837.
    MESSRS. Watt, Buree & Co.
    Gent. — Mr. Lewis Watson goes down to arrange a note with Dr. Duncan, which Mr. Blanton is indorser on, for C. Jefferson, deceased ; and we have this note to arrange with Dr. Duncan, in order to get possession of the note to- bring suit on, in Louisiana. It may be that he will have to call on yon to accept for the amount to Dr. Duncan, at twelve months, if it cannot be otherwise arranged. Please to assist him in taking it up on the best terms, and it will oblige me, and I will consider myself responsible.
    Yours respectfully,
    James Watson.”
    Which letter was also objected to, and ruled out by the court.
    The plaintiff then offered the deposition of Hugh Montgomery, to prove that Watson, in March or April, 1837, acknowledged that he had received legal notices of the protest of the note sued: that he got the notice at Port Gibson, which was •his nighest post-office, &c. It was agreed on the face- of the deposition by counsel, that so much of the deposition as would be legal evidence, if given in open court, might be read.
    This deposition was objected to, and was also ruled out by the court.
    All of which decisions of the court were excepted to.
    The plaintiff now assigns for error,
    1. The ruling out the original record of protest of the notary, and the memoranda thereon.
    2. The ruling out of the testimony of Vernon, as stated in the bill of exceptions.
    3. The ruling out letter of Watson, to Watt, Burke & Co.
    4. The ruling out Hugh Montgomery’s deposition.
    
      J B. Thrasher, for plaintiff in error.
    This was an action of assumpsit, brought against James Watson, as administrator of Benjamin Blanton, deceased, and founded on the indorsement of said Blanton, of a promissory note made by C. Jefferson, for $1100, dated 1st January, 1835, and payable at the Bank of the State of Mississippi, at Natchez, twelve months after date. The note matured on the 1st and 4th of January, 1836, after the death of said Blanton, and was regularly protested, for non-payment, by Joseph B. Lyons, a notary public, since deceased. The declaration avers presentment and protest of the note, after the death of Blanton, and due notice to James Watson, as his administrator, in consequence of which the said James Watson, as administrator, became liable to pay and being so liable, as administrator, undertook and promised to pay. The issue joined was on the promise of Watson, as administrator, upon which judgment was rendered in favor of the defendant, Watson.
    Four errors are assigned, to reverse the judgment of the court below. 1st, That the court erred in ruling out, and in refusing to permit the plaintiff to read in evidence to the jury, the original record, kept by the notary public, Joseph B. Lyons, of the protest and memoranda of notice to the defendant, of the note sued on.
    That the court erred, in refusing to permit the record to be read in evidence, is clearly demonstrated, by reference to a copy of it, contained in the bill of exceptions, and to the testimony of W. R. C. Vernon, who deposed, that Joseph B. Lyons died in February, 1837, in the city of Natchez; that he was a notary public; that witness was related to him, and boarded in his house, on the 4th of January, 1836, and acted as assistant, in preparing the protests and notices made by him on that day; that the record and protest, and memoranda of notices of the protest of the note in suit in said record, were all in the handwriting of said Lyons, the deceased notary; that said Lyons kept a regular record of his notarial acts, and universally entered in said record, kept by himself, exact copies of all notes and bills so protested by him, and in the margin, or on the back of the record of said protest, he made memoranda, as to the manner of giving notice, after notification to the indorsers, whenever his health and'business would permit him to do so ; and that the record before the court was the original record of protest and notice kept by said Lyons, and that the entries, record of the protest, and notices of the note in suit, and every memorandum on the same, were all in the hand-writing of said Lyons. The memorandum of'notice was, “notice to James Watson, administrator of B. Blanton, G. Port.”
    This record, we contend, ought to have been admitted in evidence to the jury, for what it was worth, according to the universally acknowledged principles of law, and especially by virtue of the principles settled by this court, in the case of Barnard v. Planters Bank, 4 Howard’s Rep. 104. Nicholls v. Webb, 8 Wheaton, 326. Welsh v. Barrett, 15 Mass. 380. Holliday v. Martinet, 20 Johns. 172.
    The foregoing authorities, also, sustain the second assignment of errors, to wit, that the court erred in ruling out, and in refusing to permit W. R. C. Yernon to depose, as set out in the bill of exceptions.
    The third and fourth errors assigned are, that the court erred in ruling out, and in refusing to permit the plaintiff to read in evidence to the jury, the deposition of Hugh Montgomery, taken by consent, and the letter of the defendant, James Watson, addressed to Messrs. Watt, Burke & Co., on the subject of the note and indorsement in controversy. The deposition of Hugh Montgomery, and the letter of James Watson, the defendant, were both admissible evidence, and tended to prove the issue directly, but were ruled out by the court, upon the ground that the defendant could give better testimony.
    In the case of Stewart v. Eden’s Executors, 2 Caines’s Rep. 121, it was decided by the court, that if the indorser of a note die, before it become due, then, in an action against his executor, by the holder, the declaration should allege the promise to pay, to be by the executor, and not by the testator; otherwise, it would be a fatal variance. This, method of alleging the promise by the executor, or administrator, as such, is also sustained in 6 Johns. 112, 8 Johns. 343.
    It is a general rule in pleading, without exception, that the affirmation of the issue must be proved. When an issue is joined in a cause, the affirmative averments it contains, must be proved by the party making them; and’ the plaintiff and defendant are equally bound to prove such averments, in their respective pleadings, provided they are material, or affect the grounds of the action or defence. 1 Saunders on Pleading and Evidence, 490. Blanton, the indorser, died before the maturity of the note. A demand and notice, therefore, to his administrator, was necessary, in consequence of which the administrator, as such, promised to pay. The issue is material and direct, whether the administrator did, or did not, receive notice, and promise to pay. Then, to confine the plaintiff to the testimony of the defendant, to prove the issue between the defendant and himself, would involve an absurdity in pleading, unsustained by any authority, and not taught by any court. It is a general rule, in all common law courts, that a party on the record cannot be received to testify, either in his own favor, if objected to by the opposite party, or against himself, if he object. 10 Johnson, 128. 2 Dallas, 77. 4 Wendell, 453. 7 Mass. 398. 16 Mass. 118. 7 Pick. 62. 12 Mass. 358. Charl-ton’s Rep. 303. 6 Monroe, 616, 619. 5 Mon. 212, 215. 2 J. J-Marshall, 28. 7 Binney, 398. 4 McCord, 24. 2 Yernon, 143. 10 Pick. 57, 58. 2 Phillips on Evidence, 134. 11 Mass. 527-2 Day, 404.' 2 Har. & McHenry, 152. 1 Binn. 444. 6 Binn. 16. 9 Wend. 286. 17 Johns. 335. 20 Johns. 142. 7 Cowen, 174, 178.
    In New York, the rule excludes the party as a witness, on either side, without regard to the question whether he is interested or not. 2 Phillips on Evidence, 135, cites the cases of 4 Wend. 453, 457. 1 Wend. 119. 7 Cowen, 174, 177, 650. 20 Johns. 142. 16 Mass. 118, 121. And such is the rule in Kentucky, and most of the other states. In the case of De Wolf v. Johnson, et al., 10 Wheaton, 384, the supreme court of the United States lay down the rule, without exception, and say, that upon no principle can a party to a suit be made a witness, while he is himself a party. He may have little or no interest in the event of the suit, except as to the costs; but still, while a party to the record, he could not be examined. We know of no exception to the rule, whatever be the court in which the question occurs, except it be in the administration of certain branches of the admiralty jurisdiction. In the case of Lamp-ton v. Lampion's Executors, 6 Monroé, 617, the court carry the doctrine still further, and say, that though the party be an administrator, executor, trustee, guardian, prochein arny, or otherwise, stand in auter droit, he is not competent to testify in favor of the interest he represents. But even admitting that the defendant could have testified, still it was not better testimony than the depositions of Hugh Montgomery, and the written acknowledgments of the defendant, contained in his letter, especially in an issue forming a question of veracity, between the plaintiff and the defendant.
    
      Elicit & Coleman, for defendant in error.
    The first error assigned, is the ruling out of the original record of the notary, and the memoranda thereon.
    To determine whether this was error, we must ascertain the purpose for which the record and memoranda were offered.
    They were introduced to prove that legal notice of the demand and non-payment of the note, had been given to Watson, the administrator of Blanton, the indorser.
    To constitute legal notice, it was incumbent on the plaintiff to show that notice had been forwarded to the administrator by the first mail of the day succeeding that of the protest, directed to his nearest post-office. Bayley on Bills, 262, 4. 4 How. R. 98. Chitty on Bills, 400, 401. 2 Reters R. 101. Ibid, note to 519. 5 Cond. Rep. U. S. 452, 3.
    To render the record and memoranda competent evidence in this case, they must conduce to prove the above facts. If they do not, they were properly ruled out. Perry, et. al. v. Clarke, 5 How. 499. Gould’s Pleading, 480.
    Do they conduce to make this proof? We apprehend not.
    The principle laid down by this court in Barnard v. Planters Bank, 4 How. 98, in Ogden v. Glidewell, 5 How. 179, and in Bodley v. /Scarborough, 5 How. 729, “that a memorandum made by a deceased witness, of a fact which he knew, and which he had no interest to falsify, is competent evidence to prove that fact,” is not controverted.
    It is supposed, however, that to be admissible, such memorandum must contain a plain statement of the fact intended to be proved — must at least be intelligible.
    Is the memorandum in this case a plain statement of facts ? Is it even intelligible ? What is the meaning of the words, “Notice to Jas. Watson, adm’r. of B. Blanton, G. Port?” Do they mean that notice was sent? or do they signify that it was 
      to be sent 1 If, that notice was sent, then to what place ? to G. Port — and where is G. Port ? Is it Great Port — Gin Port— or Port Gibson ?
    It seems to us that the courts have gone to the utmost length that is allowable, in admitting the plainest and most intelligible memorandum of a deceased witness, to be read in evidence ; and we submit that it would be utterly subversive of every principle of the law of evidence, to suffer such a loose and unintelligible memorandum as the present to be submitted to a jury.
    But again — give to this memorandum the benefit of the most latitudinarian construction; translate it into English, and let it be interpreted, “ Notice sent to Jas. Watson, adm’r. of B. Blanton, to Port Gibson,” and it still fails most signally to answer the object for which it was offered. The time at which this notice was sent, was to be proven. When was it sent h What evidence do the record and memorandum furnish on this head 1
    
    We apprehend that the utmost ingenuity will be wanted to eke out of the record and memoranda, anything from which the slightest inference can be drawn as to the date of the transmission of notice. It may have been an hour, a day, a week, a month, or a year after protest; and so far as we are to derive our information on this head from the document in question, one of the above periods is as probable to be correct as another.
    We submit then that the record and memoranda of Lyons, the deceased notary, do not per se in any wise conduce to make the proof for which they were offered, and were properly ruled out.
    Whether they were susceptible of being aided or explained by the testimony of Vernon, the witness who was offered in connection with them, will be considered in noticing the second assignment of errors.
    The second error assigned, is that the court erred in ruling out the testimony of William R. C. Vernon.
    Vernon was introduced to prove,'
    1. “ That it was.the universal custom and habit of Lyons to send notice of the demand and protest to the indorser on the day next succeeding that of the protest of notes and bills.”
    
      2. “ That he (Vernon) understood by the memorandum on the back of the protest in said record, that notice had been regularly sent to Watson as administrator of Blanton on the day after that of the protest to Port Gibson, by mail.”
    1. Proof of “the custom and habit of Lyons” was most clearly inadmissible. Such testimony is wholly incompetent — is in violation of every principle of the law of evidence, and is rejected by every authority we have been able to refer to.
    In Hattiday v. Martinet, 20 Johns. 168, where an attempt was made to introduce testimony of a similar character, the court say “To charge aparty in a contract which is conditional in its nature, and creates no liability until certain precedent acts are performed, by merely proving the general practice of the officer in other cases, accompanied by the opinion of the witness, not resting on any recollection or knowledge, but manifestly derived from such usual practice only, must be dangerous and unjust.” “ There could,” say the court, “ be no security in the administration of justice, if such an innovation on the rules of evidence should receive the sanction of our courts.” The same principle is sustained in 3 Gill & Johns. 474. Bay-ley on Bills, 511. 12 Martin, 699. 6 Har. & Johns. 527.
    2. Proof of what the witness understood, by the memorandum on the back of the record, is still more objectionable. We say nothing as to the extraordinary power and scope of that understanding, by which the witness has been enabled to extract such a fund of useful and accurate information from a source which, to less gifted individuals, would appear most barren and unprolific. The sober and unpoetic reason of the law, delights not in these soaring flights of genius. “ The understanding and opinions of witnesses, are never received in evidence, except in matters of science, &c.” 4 Wend. Rep. 320. Norris’s Peake, 278. 4 Conn. R. 355. 3 Starkie, 1735. 6 Conn. R. 9. 5 Am. Com. Law, 169.
    Facts, as contradistinguished from impressions, opinions, understanding, and inferences, are what the law expects from witnesses. Upon those facts the jury will predicate their own opinion, and from them will draw their own inferences. Whether connected, then, or unconnected with the record, we submit that the testimony of Vernon was altogether inadmissible, and was properly ruled out by the court.
    The third error assigned is, that the court erred in ruling out the letter of James Watson, to Watt, Burke & Co. We have felt somewhat at a loss, to divine for what specific purpose this letter was offered by the plaintiff. It appears to have been written by Watson, to his commission merchants in Natchez, for the purpose of procuring their assistance, in arranging with Dr. Duncan, the amount of a note of C. Jefferson, in which Mr. Blanton is indorser, in' order to enable him to get possession of it, so as to bring suit in Louisiana.
    It is not addressed to the plaintiff. It contains no acknowledgment of indebtedness to him, nor any promise to pay the note sued on. And even if it did, whatever weight it might be entitled to in an action against Watson in his individual capacity, we presume, that, upon principles with which this court is too familiar to require a reference to them, it could hardly be held to furnish evidence for any purpose, against the estate of Blanton.
    Its total irrelevancy doubtless occasioned its rejection by the court below; and' unless we have greatly misapprehended its character and meaning, we entertain but little fear of a different result here.
    The fourth error assigned, is the ruling out of the deposition of Hugh Montgomery.
    The correctness or incorrectness of this decision of the court, depends upon the question whether Watson was or was not himself a competent witness.
    He is a party to the suit; but he is one in name only, not in interest. He is sued as the administrator of Blanton, upon an indorsement made by Blanton in his lifetime. If the plaintiff recover judgment, the estate of Blanton will have it to pay, and Watson, the administrator, will be bound to apply a sufficient portion of the money or other assets of the estate in his hands, to that purpose. If the plaintiff is defeated, the money and assets will go to the distributees. Let the suit terminate as it may, Watson’s interests are wholly unaffected. If the verdict is against him, he loses nothing; if in his favor, he gains nothing. His commissions in either event are the same, and no individual liability attaches to him for costs. If successful, Blanton’s estate is the sole gainer; if unsuccessful, it is the sole loser.
    The naked question, then, is presented, “Does the mere fact ' that a man is a party to a suit, in the- event of which, he has not one particle of interest, either directly or indirectly, render him incompetent as a witness 1 ”
    
    If it does, then the court erred in ruling out Montgomery’s deposition; if it does not, the decision was correct, the testimony .being but secondary, and hearsay.
    “ Evidence cannot be given of the statements of one who is competent to testify.” Carmichael v. Bank of Pennsylvania, 4 How. 567.
    Upon this question the authorities are numerous and conflicting.
    In the following cases, 'which are all taking this view of the question, which we have met with, the testimony of a party to the record, whether he be interested, or not, is held to be inadmissible, on the ground of policy. 10 Pick. 58; 1 Wend. 119 ; 4 Wend. 453; 12 Pet. 146 ; 13 Pet. 209. The substance and point of all the reasons assigned by those courts for the rejection of the testimony of a party to a suit, on the ground of policy, (which is the only ground on which it is put) are condensed in the opinion of Judge McLean, in the above cited case of Stein v. Bowman, 13 Peters, 219.
    
      “ The objection to his competency does not arise so much from the small pecuniary liability to the payment of costs, as from the strong bias which every party to a suit must naturally feel. And this influence is not the less dangerous, if the party be unconscious of its existence. Every individual who prosecutes or defends a suit, is, in the nature of things, disposed to view most favorably his own side of the controversy, and with no small degree of prejudice tliat of his adversary. We think, therefore, to admit a party on the record, under any circumstances, to be sworn as a witness in chief, would be attended with great danger. It would lead to perjuries, and the most injurious consequences in the administration of justice.”
    With all deference to the opinion of Judge McLean, we think his reasoning wholly fallacious.
    An examination of this case of Stein v. Boiuman, as well as of those in Pickering and Wendell, will show that the witnesses, whose testimony was rejected on the ground of policy, had originally been interested in the event of the several suits, but by subsequent action, either of their own or of others, had become divested of that interest. In this respect, they differ from the case at bar. Watson never had any interest; no more than if he had never administered, or had resigned his letters before the institution of suit. Now, though it may to a certain extent be true, and accordant with human nature, that an individual who has once been interested in a suit, will, even after that interest shall have been removed, retain, in a greater or less degree, his original prejudices and predilections in favor of the side on which he was interested, it not only does not follow, but it would be unreasonable to contend that like prejudices and predilections are imbibed and retained by one who never had any interest, and who cannot, therefore, be supposed ever to have taken up these prejudices.
    But even in the case of one who was originally interested, and, in consequence of that interest, biased, we hold that the doctrine laid down is sustained neither by reason nor authority.
    A party who is interested in the question, if he be not also interested in the event of the particular suit, is a competent witness.
    Is such a person not likely to entertain “a strong bias 1 ” Would he not be, “in the nature of things, disposed to view most favorably, his own side of the controversy,” &c. 1 Would not “ this influence be equally dangerous, though he might be unconscious of it?”
    Again, a father is a competent witness in favor of his son, a brother of his brother, and so through all the relations of life, save that of husband and wife.
    
      Would not all the arguments of the judge apply with full force to the exclusion of the father and the brother? Could any bias or prejudice be greater or more durable than that which one near relative would feel in favor of the success of another? And would not the temptation to commit perjury, be infinitely stronger in the case of a father, testifying in behalf of a son, whose life, reputation, or property, was at stake?
    If the reasoning of Judge McLean is correct, it seems to us that a new system will have to be adopted, by which to regulate the competency of witnesses ; discarding altogether the distinctions which are now supposed to exist between those objections which go against their competency, and those which merely affect their credibility.
    In Won-all v. Jones, 7 Bing. 395, Tindal, Ch. J. says, “No case has been cited, nor can any be found, in which a witness has been refused upon the objection in the abstract, that he was a party to the suit. The only inquiry seems to have been, in a majority of cases, whether he was interested in the event or not.” 20 Eng. Com. L. Rep. 177.
    In Lampton v. Lampion’s Ex’is, 6 Monroe, 616, the court say, “We cannot divest ourselves of the belief, that the rule (i. e. the rule excluding parties to a suit,) took its rise in the interest of the party, when attempted to be used in his own favor, and in a disposition not to compel him to furnish his adversary with weapons against himself, when impleaded and resisting the demand. It would therefore follow, that if a party could be found without any possible interest to gain or jeopardize, by the event of the suit, he ought to be sworn. As to the bias which he may have to tempt him to commit perjury, modern decisions lean much to let that go to the credibility of the witness only, and not to his competency'.”
    In Willings, et al. v. Consignee, 1 Pet. C. C. Rep. 391, Judge Washington says, — “ The general rule of law certainly is, that a party to a suit cannot be a witness. But it is equally so, that the interest which the party has in the- event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule; and when that interest is removed, the objection ceases to exist.”
    
      The doctrine of the foregoing three cases is fully sustained in 1 Birmey, 444; 6 Binney, 16 ; 4 McCord, 24; 2 Day, 404; 1L Mass. Rep. 527; 12 Ibid. 258 ; 16 Mass. 118.; 3 Harr. & McH. 152; 3 Starkie, 1061, note g.
    In Ferriday v. Selser, 4 How. 520, and Wade v. Stanlon, et al., 5 How. 634, witnesses were offered who were parties to the suits; their testimony was ruled out solely on the ground that they were interested in the event.
    The old cases upon the competency of witnesses, have gone upon very subtle grounds. But of late years the cohrts have endeavored, so far as possible, consistently with those authorities, to let the objection go to the credit, rather than to the competency of a witness. Per Lord Mansfield, Walton v. Shelley, 1 Term Rep. 300.
    The objections to the competency of witnesses, are all reducible to four heads, —want of religious belief— want of mental capacity — infancy — and interest in the event of. the cause. There is no such head as incompetency on the ground of policy. 1 Phil, on Ev. 151; 1 Stark. 775.
    The fact that a witness is a party on a record, will not of itself disqualify him. It all turns on the question of interest. 1 Pennington’s N. J. Rep. 388.
    Principal obligor, sued jointly with his sureties, confessed a judgment, and after a release by the sureties, was held a competent witness for them. 11 Peters, 86.
    This case goes upon the principle, that after the interest is removed, a party to the record is a competent witness, and is irreconcilable with the cases cited from 12 and 13 Peters.
    So far as our means of examination have extended, we have found the preponderance of authority to be greatly in favor of the doctrine which places the question of the competency of a party to a suit solely upon the ground of interest. And we certainly think that it is sustained both by reason and analogy.
    If this court agree with us, that Watson was a competent witness, then the court below was right in ruling out the deposition of Montgomery. Watson was himself the best witness to prove the facts related by Montgomery, and should have been brought forward by the plaintiff. . Had he been introduced, it is possible he might have shown that the admission he made to Montgomery of the receipt of legal notice, had reference to a letter written to him by the plaintiff, months after the maturity of the note, and not to any communication from a notary.
   Mr. Justice Thacher

delivered the opinion of the court.

This case comes up by writ of error, to the circuit court of Claiborne county.

Four causes of error are assigned. First, that the court below erred in ruling out from the evidence the original record of the notary, who was deceased, of the protest and notice to the defendant ; secondly, in ruling out the testimony of Yernon, which was tendered to prove and explain the notary’s record; thirdly, in ruling out a letter of defendant to Watt, Burlce & Co.; and, fourthly, in ruling out the deposition of Montgomery, relating to acknowledgments of defendant in regard to the reception by him of notice.

The notarial record contained these words indorsed upon it, to wit, “Notices to James Watson, administrator of B. Blanton. G. Port.” It was proposed to prove by Yernon, who was a relative of the deceased notary, his clerk at the time of the protest, and familiarly, acquainted with his customs in that business, &c., that the above-mentioned record was his, and in his hand-writing, and that he understood the indorsed words to mean, that “notice had been regularly sent to said Watson, administrator of said Blanton, on the day after the day of protest, at Port Gibson, by mail.”

We think it would have been going too far, to have permitted Yernon to give his understanding and opinion, however well founded, of what was the meaning of the notary’s indorsement upon his record. That was a fact for the jury to determine, from the words themselves. In other respects, regarding the hand-writing, &c., his testimony was admissible. The memorandum itself, so far as it went to prove notice of protest, was improperly excluded, as well as the record, for its extent in evidence. It does not appear but that the plaintiff was prepared, upon the admission of the notarial record, to supply, by other testimony, what farther he might have deemed necessary, to bring home to the defendant proof of notice of the dishonor of the note.

The exclusion from the jury of the letter of the defendant to Watt, Burke & Co., was, we consider, incorrect. If there be not enough in the contents of the letter, to identify the note therein spoken of, with the note sued upon, yet, taken in connexion with the deposition of Montgomery, there might be a presumption of it sufficiently strong, to be left to the determination of the jury. The letter commences thus: “Mr. Lewis Watson' goes down to arrange a note with Dr. Duncan, which Mr. Blanton is indorser on, for C. Jefferson, deceased,” &c. The deposition contains this language : “ This affiant further states, that said Watson told this affiant, at the same time, that he would send for his grandson in-law, Lewis Watson, on the next day, to Natchez, and have the matter arranged with Dr. Duncan,” &c. The date of the letter’, and the time spoken of by Montgomery, were matters of comparison for a jury. Further proof might have been ready to fill up the deficiency, if considered wanting.

It was proposed to establish, by Montgomery’s deposition, the acknowledgment, by defendant, of the.receipt of notice by him. The defendant in error objects, that he, himself, was a competent witness in the cause, and that proof by another, of his declarations, would be secondary evidence, and inadmissible for that reason.

This point involves the question, whether, and under what circumstances, a party to a shit may be witness therein. A careful examination of the authorities has led us to the conclusion, that a party to the record, who is uninterested in the event of the suit, may be admitted to testify in his own favor, if not objected to by the opposite party, and against himself, if he does not object.

The general rule is, that a party to the record is inadmissible, as a witness. The different English law-writers give various reasons and explanations of the rule. In New York and Massachusetts, the rule of exclusion was formerly peremptory, on the ground of policy, though lately somewhat relaxed. The other stated, where the point has come up, define the cause of the rule, some upon the mere abstract objection of being a party to the suit; and others, because the witness must have some interest growing out of that relation. Starkie, in his work upon Evidence, considers the reason of the rule a mixed one of interest and policy; of interest, because of the temptation to commit perjury, when the witness is called in his own favor; and of policy, when being called on the other side, he refuses to answer. That it is at the option of the party to testify, when called against himself, the last quotation, explaining the meaning of the term “ policy,” abundantly shows. This is further confirmed, by the opinion of Chief Justice Tindal, reported in Worrall v. Jones, et als., 20 Eng. C. R. 177, who says, “ that it is a rule founded in good sense and sound policy, that a party to the record should not be compelled, against his consent, to become a witness in a court of law. In 2 Cowen, and Hill’s notes to Phillips on Evidence, p. 134, n. 122, sustained by references to numerous authorities, it seems established, that “it is a general rule, in all common law courts, that a party on the record cannot be received to testify, either in his own favor, if objected to by the opposite party, or against himself, if he object.” The latest work upon the subject of evidence, Greenleaf, 398, remarks, the rule, which excludes a party to the suit from being admitted as a witness, is also a rule of protection ; no person, who is a party to the record, being compelled to testify. It is only when he consents to be examined, that he is admissible in any case, nor then, unless under circumstances; ” which the author goes on to explain.

Now, in applying these conclusions to the case before us, what inevitably follows ? The plaintiff below, in compliance and accordance with the general rule, which excludes a party to the record to testify, stood prepared to establish, by the declaration of the defendant to a second person, what he conceived to be evidence, that the defendant had received due notice of the dishonor of the note. In order to exclude this evidence, it was incumbent on the defendant, if he desired to have the benefit of the exception to the general rule, to have had himself in readiness, and announced his willingness to testify to the point in issue. Ownings and Pict v. Low, 5 Gill & John. R. 134. He does not seem to have done so. The plaintiff could , not compel his attendance; it was in the choice and option of the defendant to testify, or not testify. In this view of the case the court below erred, in excluding the deposition of Montgomery.

The judgment must be reversed, and a new trial granted, by the circuit court of Claiborne county.  