
    Lewis Williams et al. vs. John A. Miller.
    Whether a party to a negotiable instrument, who has given it credit and currency, by his signature, shall afterwards be admitted as a witness, in a suit between other persons, to prove the instrument originally void,— Qtwsre?
    
    A party to a non-negotiable instrument is admissible, as a witness to prove it void; or, if the instrument be negotiable, he is competent to prove payment, or anything which does not impeach the note, but only goes to show its discharge, or he is competent to testify if he has indorsed the note without recourse.
    W., as principal, and others, as sureties, being indebted, by joint note, to P., W. paid the note to P., and the latter delivered up the note to W., who prevailed upon P. to indorse it, after the'payment, without recourse ; in an action on the note, against the principal and sureties, by M., it was held, that P. was a competent witness to prove ..these facts.
    In error from the Claiborne circuit court; Hon. Stanhope Posey, judge.
    John A. Miller sued upon a note made by H. & H. 0. Anderson, A. K. Shaifer,' H. W. Barnes, and Lewis Williams, dated June 24, 1839, for $5,000, payable five yeats after date to A. W. Putnam, with six per cent, interest, annually, at the Fulton Bank of New York.
    The note is indorsed as follows :
    “ I have given this note up to G. G. Torrey, for bank stock, Bank P. Gibson, without recourse.
    “ Putnam.”
    “ Pay, without recourse on me.
    
      “ G. G. TORREY.”
    The declaration alleges, that A. W. Putnam, by the name and signature of “ Putnam,” indorsed the note to Torrey, and that Torrey indorsed the note to plaintiff.
    The suit was dismissed, as to all the defendants but Williams, who had pleaded three pleas: — 1. Non assumpsit, and 2. Payment on the 1st of April, 1842, by H. 0. Anderson, one of the'joint drawers, to A. W. Putnam, while Putnam was the bona fide owner and holder of the note; and 3. Accord and satisfaction, by the delivery, by H. & H. 0. Anderson, on the 11th of June, 1843, of fifty shares of stock of the Bank of Port Gibson, to A. W. Putnam, while he was the owner and holder of the note, who accepted the said stock in satisfaction. Issue was joined on these pleas.
    On the trial of the cause, the defendant offered in evidence the deposition of A. W. Putnam, the payee of the note, to prove that before he indorsed the note to Torrey, it had been fully paid to him by Anderson, and that he had been prevailed upon by Anderson to indorse it, after payment, without recourse. The deposition being objected to, was ruled out by the court, and a verdict thereupon rendered for the plaintiff below; for the judgment on which, Williams prosecutes this writ of error.
    
      JSoopes, for plaintiff in error.
    A person who has indorsed a promissory note is a competent witness to prove the note void. 1 Greenleaf’s Evid. 453; Bank of Utica v. Hilliard, 5 Co wen’s Rep. 153 ; Claiborne v. Planters Bank, 2 How. (Mi.) Rep. 728. By the common law/ every person not interested, and not of an infamous character, may be a witness. 2 Binney’s Rep. 165; Williams v. Wal-
      
      bridge, 3 Wend. 415; Taylor v. Beck, 3 Rand. 316 ; 2 Yerger, 38, 39, 40 — 48; Walton v. Shelley, 1 T. R. 296; Jordaine v. Lashbrooke, 7 Term. Rep. 601. See also Stafford v. Rice, 5 Cow. Rep. 23 ; Bank of Utica v. Hilliard, 5 lb. 153; Williams v. Walbridge, 3 Wend. Rep. 415; Taylor v. Beck, 3 Rand. 316; 2 Yerger, 38 — 48.
    
      William and William G. Thompson, on same side,
    cited and relied on Routh v. Helm, 6 How. (Mi.) Rep. 127, and Commercial and Rail Road Bank of Vicksburg v. Bum, 7 How. (Mi.) Rep. 414.
    
      J B. Thrasher, for defendant in error.
    Judges have been much divided in opinion. The leading case against the admissibility is, that of Walton v. Shelly, 1 T. R. 296. But the rule, that, such a witness is not admissible, seems at present to be the settled law of th,is country, as recognized and laid down by the highest .national tribunal, and by the case of Drake v. Henly, decided by this court. Walker, 541; 8 Peters, 12; 11 Peters, 86, 94, 95; 6 Peters, 51, 57; 12 Peters, 149; 2 Sumner, 235, per Story, J.; 4 Mass. 156; 16 Mass. 1Í8 ; 17 Mass. 122; 1 Metcalf, R. 416; 1 Greenleaf on Ev. 430, § 385.
    
      H. T. Ellett, on same side,
    Relied on Walton v. Shelley, 1 Term. Rep. 296; Bank of Metropolis v. Jones, 8 Peters, 16; Henderson v. Anderson, 3 How. S. C. Rep. 73; Walk. Rep. 541; 1 Greenl. Ev. 529, §$ 383 — 385, note.
   Mr. Justice Clayton

delivered the opinion of the court.

The only question in this cause is, whether Putnam’s deposition was rightly excluded. He was the payee of the note, and his testimony was offered to show, that the note had been paid to him, and delivered up to the maker, the principal debtor, who prevailed upon him to indorse it, after the payment, without recourse.

Whether a party to a negotiable instrument, who has given it credit and currency by his signature, shall afterwards be admitted as a witness in a suit between other persons, to prove the instrument originally void, is a question upon which judges have been much divided in opinion. In England, the rule against the admissibility of such party, formerly prevailed; but the rule at present received, is in favor of his competency, if there be no other objection. 1 Greenl. Ev. 529, 530. In the United Stales, the courts are arrayed on both sides of the rule. The supreme court of the United States, holds the witness in such case to be incompetent. Bank of United States v. Dunn, 6 Peters, 51; Bank of Metropolis v. Jones, 8 Peters, 12. Many of the cases in the state courts, are collected in 2 Phil. Ev. 72, Cow. & Hill’s notes.

“ But the rule of exclusion is referred to the ground of public convenience, and seems to be restricted in its application to the case of a negotiable security, actually negotiated and put into circulation before its maturity, and still in the hands of an innocent indorsee, without notice of the alleged original infirmity, or any other defect in the contract.” 1 Green. 531. This is the extent of the rule adopted in the Supreme Court of the United States. United States v. Leffler, 11 Peters, 95 ; Scott v. Lloyd, 12 Peters, 149. The party is admissible, where the instrument is not negotiable, or where he is called to prove payment, or anything which does not impeach the note, but only goes to show its discharge, provided he is not interested, or liable to other objection. The rule thus laid down, has been recognized in this state. Routh v. Helm, 6 How. 127. It has likewise been decided, tliat where the party called as a witness, has indorsed, without recourse, he is competent. Parker v. Hanson, 7 Mass. 470; Gorham v. Carroll, 3 Littell, 221.

These exceptions entirely cover the present case. Without entering upon the consideration of the vexed question, involved in the general proposition of the competency of the witness, in regard to negotiable paper actually negotiated in due course of trade, we may safely say, that the testimony in this instance was improperly rejected.

The judgment is reversed, and new trial granted.  