
    Ringgold vs. Tyson.
    Appeal from Washington County Court, from a judgment rendered in favour of the plaintiff in that court, (the present appellee,) in an action of assumpsit on a promissory note, drawn by the defendant, (the appellant,) on the 5th of May 1804, payable to S. Wilmer, or order, for glOOO, and by Wilmer endorsed to the plaintiff. The declaration also contained counts for money lent and advanced, for money had and received, and for money laid out, expended and paid. Plea, the general issue.
    In assumpsit on a promissory note by the endorsee against the drawer, the payee is a competent', witness to prove the s note had been paid to the plaintiff
    ‘ He is also competent to prove that the note was given on a usurious consideration.
    The endorsee or holder of a promissory note can* not recover in his own name on an endor$einep£ to blauk
    
      1„ At the trial in March 1807, the plaintiff read in evidence the promissory note declared on, and which was admitted to have been drawn and signed by the defendant, and endorsed by Wilmer. [The endorsement by Wilmer was in blank.] The defendant then read in evidence a release, dated tjie 26th of March 1S07, from himself to Wilmer, “of and from all claims, debts, dues and demands, of every nature and kind whatsoever,” &c. which was ad-, milted by the plaintiff to be duly executed, signed, sealed and delivered, by the defendant to Wilmgr. And also a release, dated the same day from Wilmer to the defendant, “of and from all manner of debts, dues and demands, contracts and agreements, of every nature and kind existing between them,” &c. This release the plaintiff also admitted was duly executed, signed, sealed and delivered, by Wilmer to the defendant. The defendant then produced Wilmer, and offered to prove to the jury by him,, that on or about the 10th of July 1804, he as the agent of the defendant, paid the amount of the note to the plaintiff, to whom the same had been endorsed by Wilmer. But the court, [Clagett and il/iriuer, A. J.] rejected the witness as incompetent to prove those facts. The defendant ex-cep ted.
    2. The defendant then offered to prove by Wilmer, a conversation with the plaintiff, in which lie admitted that he was not entitled to recover in this suit any thing from the defendant upon this particular note, the same having been paid. This evidence the court also refused to let him give. The defendant then prayed the court to direct the jury, that the plaintiff was not entitled to recover. This direction the court refused to giye. The defendant excepted.
    S. The defendant then offered to prove by Wilmer, that he the defendant drew the note, upon which this suit is brought, payable to him, Wilmer, for the purpose of raising money thereon for the use of him,, the defendant, and without any value passing from Wilmer to the defendant. That Wilmer called upon the plaintiff with the note, and informed him that he was the agent pf the defendant, and that he wanted to borrow money for the defendant upon the note. That the plaintiff did thereupon discount the note at .a discount oppn the sum therein expressed, at the rate of three per- centum per month, and took and received from Wilrner, as the agent of the defendant, the note at the price of S940, which sum, and no more, the plaintiff paid to Wilmer for the defendant, as and for the price of the note, That in consequence of the money so paid, Wilrner endorsed and delivered the note to the plaintiff But the court refused to permit Wilrner to be sworn to the jury to prove these facts, or any of them, and rejected him as an incompetent witness The defendant excepted. Verdict and judgment for the plaintiff, and tile defendant appealed to this court.
    This cause was argued before Chase, Ch. J. Gantt, and Earle, J, — Buchanan, !, having been concerned as counsel did not sit. The questions which arose in this case had been argued in this court on the Eastern Shore in the case of Lloyd vs. Tyson, before Poi.k, Buchanan, and Gantt^ !. — Earle, !. having.been concerned as counsel did^sit ill that case.r-NiciioLsqN, J. did not sit in either case.
    
      Martin, Key, and T. Buchanan, for the Appellant,
    sfatcd, that the first sod third bills of exceptions presented two questions — 1. Whether or not a payee of a promissory note was a competent witness, in pn action by the holder against the drawer to prove payment — mutual releases having been executed to each other by the payee and drawer? And 2. Whether or .not he was competent to prove that the note was void in its creation, as given on p usurious consideration? To show that he was a competent witness, they cited Clarke vs. Shee & Johnson, Cowp. 199. Peake's Evid. 161, 144, 180, 181. Charrington vs. Milner, Peake's N. P. 6. Phetheon vs. Whitmore, Ibid 40. Humphrey vs. Moxon, Ibid 52. Adams vs. Lingard, Ibid 117. Rich vs. Topping, 1 Esp. Rep. 176. Jordaine vs. Lashbrooke, 7 T. R. 601. Birt vs. Kershaw, 2 East, 458. 1 Esp. Dig. 259. Staples vs. Oakes, 1 Esp. Rep. 332. Chitty on Bills, 282, 283, 284, 52, 205. Dickinson vs. Prentice, 4 Esp. Rep. 32. Shuttleworth vs. Stephens, 1 Campb. 407, (and note.) Kyd on Bills, 283. Brown vs. Davies, 3 T. R. 81. Lowe vs. Waller, Doug. 736. Abrahams, qui tam, vs. Bunn, 4 Burr. 2251. Baker vs. Arnold, 1 Caine's Rep. 975, 276. Twambly vs. Henley, 4 Mass. Rep. 442. Bliss vs. Thompson, Ibid 491. Bosanquet vs. Dashwood, 
      
      Ca. temp. Talb. 38; and Wilson vs. Lenox, 1 Cranch, 201, (note.)
    
    On the second bill of exceptions, llicy slated the question to be, whether an endorsee could bring an action in lits own name ou a promissory note endorsed in blank by the payee? To show that be could not, they cited Clark vs. Pigot, 1 Salk. 126. Lucas vs. Haynes, 2 Ld. Raym. 871. Bull. N. P. 275, 278. 1 Esp. Dig. 28. Chitty on Bills, 117; and Gray & Biddle vs. Wood, 2 Harr. & Johns. 328.
    
      W. Horsey, Harper, and Winder, for the Appellee,
    ou the first and third bills of exceptions, cited Walton vs. Shelly, 1 T. R. 296. Bent vs. Baker, 3 T. Rep. 27. Charrington vs Milner, Peake's N. P. 6. Phetheon vs. Whitmore, Ibid 40. Humphrey vs. Moxon, Ibid 52. Adams vs. Lengard, Ibid 117. Rich vs. Topping, 1 Esp. Rep. 176. Hart vs. M‘Intosh, Ibid 298. Jordaine vs Lashbrooke, 7 T. R. 601. Caldwell vs. Bull, 
      
      . M‘Cullough vs Houston, 1 Dall. Rep 441. Stille vs. Lynch, 2 Dall. Rep 194. Baker vs. Arnold, 1 Caine's Rep. 258. Winton vs. Saidler, 3 Johns. Cas. 185. Coleman vs Wise, 2 Johns. Rep. 165; and Churchill vs. Suter, 4 Mass Rep 156.
    
    
      
      
         The case here referred to of Caldwell vs. Bull, in this court at December term 1809, was an appeal from Jhdiiviore County Court. It was an action of aisiu/ipsit, for g-oocb sold and delivered, end the general issue was pleaded. At the trial the defendant, fnow appellee,) offered ill evidence by way of set. off, a promissory note drawn by the plaintiff, ((he appellant,) in favour of William ¿lays, and by iihn endorsed to the defendant. The plaintiff' then offered to prove by Huye, that while the note remained in his possession, and before lie endorsed it to toe defendant, he erased from the body of the note the name “ 'William Hays;’ and in this defaced state delivered the note to one Bar Id is, a broker, and requested him to negotiate it by selling It, and that BsrkUe did offer it for rale, but was unable to sell it. That Bays afterwards inserted the name “William ¡fays” in (lie body of the note, and endorsed it *o the defendant, to whom he communicated the circumstance of the erasure, before, and at tile time he endorsed the note. The defendant objected to the proof of the erasure by Bays, on the ground that it might tend to invalidate the note; and that Hays was an incompetent witness to invalidate an instrument to which lie had given credit by endorsing- it, and passing- it away. And the court, [Nicholson, Ch. J. said Hollingsworth, A. J.] sustained the objection, and directed the jury, that Bays was an incompetent witness to prove the erasure. The plaintiff excepted, and the verdict and judgment being- ag-ainsf him, lie appealed to this court, where the judgment was ajfi-rimd by consent.
      
    
   Ckask, €h. J.

In this case, which isa suit brought by the endorsee of a negotiable promissory note against the drawer, three questions on bills of exceptions are broughí before this court for their decision.

The Jirst question is, whether the endorsor can be received ás a witness to prove payment of tíre money to the ylain tií?

The second question is, whether he is a competent witness tci prove the note was given on an usurious consideration?

The third question is, whether the endorsee of a promissory noté can recover in his own name on an endorsement in blank?

The two first questions are of the greatest importance, and have claimed the particular attention of the court, because on our judgment depends one of the principal rules of evidence which will be adhered to or relaxed accordingly, in this state, in future.

These questions have been ably discussed by the counsel for the parties, and all the cases and law relating to them have been brought before tiie court, and with great Strength of argument observed on.

The objection to the endorsor being received as a witness, is grounded on the rule laid down in Walton vs. Shelly, that no person shall be admitted as a witness to impeach or invalidate an instrument or writing which he has signed and given credit to.

This is acknowledged to be a rule of policy, and adopted by the court in that case in conformity to a maxim of the civil law, nemo allegam swam inrpitwdinem est awdiendus. This as. a rule of evidence was unknown in the-common law courts in England prior to that case. '

The rule that prevailed antecedent to that time, and as n rule of the common law, is, that every person not interested in the event of the suit was admissible as a witness,

' It is certain this rule was deviated from, and I think infringed by the decision of the court in that case; and the evils resulting from it as’ a general rule pressed so hard upon the court, and involved them in so many difficulties, by interfering with the decisions of the courts in other cases, as to induce them to modify it; and in three yearsafterwards they restricted it to the case of negotiable instruments; and after relaxing it from time to time, they exploded it in the case of Jordain vs Lashbrooke, 7 T. R. 601, and re-established the rule which prevailed according to the principles of the common law.

Unquestionably the rule in Walton vs. Shelly cannot prevail as a general rule, because in the cases of wills, deeds and bonds, the witnesses to them may be examined to impeach their validity; in the first case to prove the insanity of the testator, in the second caseto prove the deed was not sealed or delivered, and in the third case to prove the bond was given on an usurious consideration — or that the obligor was unlettered, and that the bond was not read or was misread to him. The witnesses in these cases, by their attestations, held out there was no legal objectiou to the.», and that they will prove those requisites which aha essential to their validity.

The\lecir;ion in Walton vs Shelly is overruled by the court in Jordaine vs. Lashbrooke, and the law considered as settled in England. The cases at nisi pr ¿ns conformed to Walton vs. Shelly, while it remained the ruling decision, although the courts indicated an inclination to modify and relax the restriction. -Lord Mansfield said, the rule is founded in policy, and on that ground it was adopted. It is the duty and province of the court dicere non legem, and if the rule was not known at that time as a rule of evidence at the common law, the court’s opinion as to its policy would not warrant them in the adoption of it.

An accomplice is a legal and competent witness against the principal, and in giving testimony must declare his own turpitude and participation in the crime, which is a circumstance that impeaches his credit. The maxim of the civil law, when considered with reference, to the common law, may be understood as affecting the credit of the witness, and declaring that he stands in that predicament which renders his testimony suspicious, and that he ought to be heard with caution.

At one time an underwriter on a policy, i« a suit against another underwriter on the same policy, was held to be au incompetent witness, and rejected from the supposed bias on his mind resulting from a community or similarity of interest. That doctrine has been exploded as a deviation from, or infringement of, the common law rule, of evidence, that every person who is not interested in the event of the suit is a competent witness. An heir at law is admitted as a witness in a suit brought by his ancestor, relating to the bounds of his land, notwithstanding the bias on his mind from the expectation of his inheriting the laud. All these cases indicate plainly, and recognize the rule; tliat a person not interested in the event of the suit is a competent witness, and cannot be incapacitated by the situation in which lie stands, from whence a bias’ on his mind is inferrable.

It is the peculiar and exclusive right arid province of the jury to decide on the credit of witnesses, and the court cannot declare them incompetent, from any conjectural influence on their minds inclining them to favour one party , more than the other; the jury, in forming their opinion; Will consider all circumstances attending the witness in. giving his testimony.

The common law is paid of the law of Maryland, and cannot be abrogated or impaired by any principle or maxim of civil law. The rule of evidence, so often recurred to, is a rule established by the common law, and was in full force and operation ini this state, at the time of the decision in Walton vs. Shelly, which introduced the maxim of the civil law, as an exception to that rule, on the ground of policy.

That decision has been the ground of the judgments in the courts of the states, and their decisions must rest on that authority, and cannot be entitled to more weight.

The maxim of the civil law may be considered as confined to the parties, and was so considered by the judges, (Gross and Lawrence.)

A plaintiff, whose action arises exturpi causa, shall not be heard in alleging his own turpitude in support of his action against a particcps criniinis.

To illustrate the position, A promises B a sum of money if he will grant him an office which concerns the administration of justice, or procure it to be granted, and the office is obtained, and A refuses to pay the money — B cannot recover it. So if A-gives . B a sum of money to procure him an office, and B so expends the money, and the office is not obtained, A cannot recover the money of B,' or the person to whom it was paid.

So in the case of simony, where A promises to pay B a sum of money if he will procure him to be presented and instituted to a chapel, which was a donative in the King's gift; and B does procure him to be thus presented and instituted, B cannot recover the money of A.

In support of such actions the plaintiffs cannot be heard because of the illegality and turpitude of the consideration.

As to the third question. The legal operation of an endorsement in blank, in cases iu which the sum is filled up in the bill, confers a right in the holder to consider it as a transfer to himself, or an authority, to receive the money from the drawee, for the use of the endorsor, and he makes his election accordingly, by filling it up as a transfer or authority; and as it has not been filled up as a transfer in this case, the plaintiff below cannot support the action.

Pome and Buchanan, J. concurred

Gantt, J. dissented,

Earle, J.

I concur in the judgment of the court upoft the two first bills of exceptions in this cause.

If the endorsee Was not a competent witness for all pur* poses, it must be acknowledged he was for some. He might have been sworn to prove that the note was, paid by Ring-gold to Tyson after the endorsement of it, and no solid objection could have, been raised to his being permitted to state, that as the agent of Ringgold he made tiie, payment.

A blank endorsement of itself transfers no interest in a bill of exchange or promissory note. Independent of the authorities referred to by the counsel of the appellant upon this point, a cause, lately determined in the court of appeals on the eastern shore, concludes the question. It.was the action of Joseph Wood, and Elizabeth his, wife, for the. vise of Benjamin Sluyter, against Gray %■ Biddle, It originated in Cedi county court, on a promissory note passed to the wife while sole, and; by her endorsed in blank to Sluyter, whose pleasure it was to use the names, of the husband and wife in the prosecution of his action. At the trial the defendants offered to prove, that value passed from. Sluyter at the time of tiie endorsement, and was the consideration of it; and meant to contend, that the property ia the note was transferred, and that the suit ought to have been in the name of Sluyter, as endorsee. But the court held, that the title to the note was not assigned by the blank endorsement; and the rejection of the testimony having produced a bill of exceptions, their judgment was revised and affirmed in this court. 2 Harr. & Johns. 328.

Iu the third bill of exceptions in the record, a more serious point is presented for consideration, and_in deciding it, I must also beg leave to dissent from the judgment pronounced by the court. I am for uniting with the courts of judicature in the commercial states of Massachusetts, New York and Pennsylvania, in giving stability to a legal principle that will restrain men from invalidating negotiable paper, to the credit and currency of which they havccontributcd by the endorsement of their names; as well for the sake of preserving within the union, a uniformity in the adjudication of great mercantile questions, as because I deem the principles of the case of Walton vs. Shelly, the law of this state. It has been adjudicated, it is true, since the establishment of our independence, and in this view, it is not^a binding authority in our courts of justice; but it unquestionably contains a recognition of the principle contended for, as a. principle well understood in King’s Bench in thé yéár T786, and perfectly familiar to the learned in the profession of the law at that period. Lord Mansfield, and the other judges; who sat in the cause, and particularly Judge -Butter, treated the rule, “that a party to a negotiable instrument shall not be received as a witness to invalidate it,” as a known and long settled general rule of law; and the counsel, who argued in behalf of the plaintiff and defendant, on the one hand asserted, and on the other admitted, the existence and propriety of the principle, and only differed about the application of it to the subject then, under discussion. My deduction from the report of this case is, that the rule in question was established long anterior to 1786, and this opinion seems' to receive strength from considering the case of Abrams vs Bunn, decided about the year 1768, where the rule is glanced at, if not recognized, by the judge, in stating the reasons of the judgment of the court. Whether this case is the law of Great Britain at this day, is a question which need not be inquired into. For it is certain that general principles, confessedly a part of the common law at the time of our revolutionary war, cannot be affected or altered by the subsequent decisions of foreign tribunals. But if I was to hazard an opinion on the question, I should say that Walton vs. Shelly is still authority in England. Jourdaine vs Lashbrooke contradicts it; but it cannot be concealed, that the competency of witnesses was by that decision enlarged, to prevent evasions of a statute that materially affected the revenue of the kingdom; and it is to be remarked, that the ease ¡(self has never received the sanction of the supreme appellate jurisdictions of that country. "When Winton vs. Saidler waa determined in Wew York in die year 1802, (it was the first time the point occurred in that state,) it is impossible to suppose the judges were unappri/.ed of Jourdaine vs. Lashbrooke; and yet we find them acknowledging die pi in tiples of Walton vs. Shelly in their fullest extent. Tliev must have proceeded upon the ground that the latter case, from the peculiarity of its circumstances, did not unsettle the authority of the funner, or, as 1 think on this occasion, they must have believed, that Walton vs. Shelly refers to rales and principles wftich^ antecedent to the controversy between

The case new before the court fall] Walton vs. Shelly, nucí according t¡1 to be decided by it, although there is the facts which distinguishes it in , authority, and from almost all the c the urine subject. It was Hotproiuissuiu^q^gjgnM^wmcf, the endorsee, that the note was given upon an mcgal contract, and therefore void ab initio; but supposing it was a valid instrument, he was offered as an evidence to prove the illegality of the consideration upon which lie transferred it to the endorsee. The cause of action itself was not to be impeached; but as the suit could not be sustained without the aid of the endorsement, a recovery was to be barred by showing it to be a nullity. The admission of the testimony thus putting it in the power of the witness, not merely to destroy a paper to which he had given credit by his name, but to abrogate his own act of endorsement, and thereby in cifect release the defendant from a debt which, from any thing that appears to the contrary, is bona fide slue and owing from him.

lam of opiuion, that the judgment of the court below, in the third bill of exceptions, ought to be affirmed.

JUDGMENT EEVEESED.  