
    Long against Bailie indorsee of Buchannan.
    
      Wednesday, May 20.
    In’ErROR.
    It is no ob-competency himself ineventol the'6 lact lm^s not so.
    Aonomnyen-1 gagement •which cannot he enforced at íiT^trath'mny.
    a witness a suitor of his becoming hrterestedfor rendering36 ° lnmseifincom-
    ON the trial of this cause, which was an action on a ofpromissory note, brought by Samuel Bailie, indorsee of ThoBuchannan, against Benjamin Long, the drawer, in the Common Pleas of Lancaster county; the indorser, Buchannan, was called as a witness by the defendant, and ob~ jecte<^ to by the plaintiff’s counsel, because he was interested in the event of the suit. On his examination on the voire dire, it appeared, that five or six weeks before the trial, Bailie, the plaintiff, had executed to him a release of all 7 * ' . right of action founded upon his indorsement. On the morning of the trial, just before the subpoena was served UpQn him, the release was destroyed by his consent in the presence of the plaintiff’s counsel, and he “expected it was because he was called forward as a witness, that the release was destroyed.” He stated, that he considered himself interested in the cause, and bound to pay the money if Long coui,j not be compelled to pay it, and added, that he was unwilling to be examined.
    The Court refused to permit the witness to be sworn in chief, and the defendant excepted to their decision.
    In his charge to the jury, the President of the Court of Common Pleas declared, that a note of this kind might be transferred by a blank indorsement by the payee ; that such an indorsement was a sufficient authority to any person who honestly and fairly obtained possession of the note, to demand the contents of the drawer in his own name as indorsee, and that the possession of the note was evidence of this, until the contrary were shewn.
    At the request of the defendant’s counsel, this opinion was filed agreeably to the act of assembly of 24th February, 1806, and together with the bill of exceptions on the point of evidence, was brought by writ of error into this Court, where several exceptions were taken, which, however, it is not necessary to state, as the opinion of the Court is confined to that which was founded on the rejection of the testimony of Buchannan.
    
    Rogers, for the plaintiff in error,
    contended, that Buchannan having become a competent witness by the release, the , . , , ... ... defendant had acquired an interest m his testimony, which neither he nor the plaintiff could defeat. To exclude his testimony, a witness, he said, must be interested at the time when the fact which he is to prove happened; or the interest must be cast upon him by operation of law, of the act of the party for whom he is called. If he becomes interested by his own act, without the consent or interference of the party who requires his testimony, he remains competent. Peake’s JEv. 157. Therefore, laying a wager on the event of the suit, does not destroy the competency of a witness, though it may affect his credit. Rex v. Fox.
      
      . Barlow v. Vowel.
      
       If a man, who was before a witness, purchase a part of the land in dispute, he is not disqualified by this act from giving testimony ; still less shall he be permitted, by a contrivance entered into with the opposite party, to strip the defendant of evidence to which he was entitled. If Buchannan was a witness for any purpose, he ought to have been sworn. What he was called to prove, is not stated, and for aught that appears, he might have been examined to prove payment.
    The objection, that an indorser cannot by his testimony destroy the validity of an instrument to which he has put his name, supposing him to have been called for that purpose, has no force in this case, because the rule is confined to negotiable instruments. By the act of 1715, bonds, specialties, and notes, were made assignable, so as to entitle the assignee to sue upon them in'his own name; and bonds and promissory notes were placed upon the same footing. The act of 27th February, 1797 , was passed with a view to give a negotiable character to promissory notes, bearing date in the city and county of Philadelphia, and expressed in a certain form prescribed by the act. The operation of this law, being confined to the city and county of Philadelphia, promissory notes bearing date in other places, were left on the same footing as before, and of course all the decisions relative to bonds, and those relative to notes, prior to that act, are applicable. In Raring v. Shippen,
      
       the assignor of a bond was held to be a competent witness to prove, that he had obtained it fraudulently; and the Chief Justice in delivering his opinion, (p. 165,) declares, that the rule which prevents a man from discrediting an instrument to which he f , ° . ,, ; has signed his name, is confined to negotiable instruments, and that a bond, though assignable by an act of assembly, is not to be considered as of that description. In Wheeler v. Hughes,
      
       it was also decided, that a bond is not a negotiable instrument, and that, therefore, the assignee takes it subject to every defalcation to which it was liable in the hands of the obligee at the time of the assignment. And the same rule was applied to promissory notes in the case of1 MiCullough v. Houston, in which it was declared, that they were placed upon exactly the same footing with bonds, fay the act of 1715, except as to the mode of assignment.
    
      Hopkins, for the defendant in error,
    argued, that as Ruchannan, after having been released, had agreed to resume his responsibility on his indorsement, which was no more than the performance of a moral obligation, the cancelling of the release, restored the parties to their original situation ; and that it was immaterial when he became interested, provided he was so bona Jide, at the time of the trial. Besides, he observed, the witness had declared on his voire dire, that he was interested; and whether a witness be interested in point of law or not, a belief that he is so, will create such a bias in his mind, in favour of the side through which he expects to derive advantage, as ought, in order to keep the streams of evidence pure, to exclude his testimony. Upon this principle, a witness was rejected in the case of M'-Veaugh v. Goods,
      
       who expected a compensation for services which he had rendered, from the generosity of the person for whom he was called, provided, the suit should terminate in his favour, but who had no legal claim to such compensation. Upon the same grounds, a witness was not permitted to be sworn, in the case of Innis v. Miller,
      
       and the Court in delivering their opinion in that case, express their decided approbation of the decision of MlFeaugh 'v. Goods, and declare, that the law on this subject has been fully settled by modern cases. Phillips, in his treatise on evidence, (p. 41 to 43) enters into an argument, to prove the contrary position; but his reasoning, so far from being supported by authority, is directly contradicted by the case of Fotheringham v. Greenwood,
      
       and from the cases collected in a note to the late American edition of that work, (p. 43,) it appears, that it is opposed by nearly the whole current of American authorities.
    There is another rule of law too, which forbade the exar mination of this witness. He was the indorser of the note, and no one can be permitted to destroy the validity of an instrument to which he has given credit by affixing his name. Without referring to other authorities, the cases of Stille v. Lynch,
      
       and Resp. v, Ross,
      
       both of which were decided prior to the act of 27th February, 1797, and therefore impugn the decision of McCullough v. Houston, axe sufficient to establish this point.
    
      
       1 Sir. 652.
      
    
    
      
      
        Skin. 586.
    
    
      
       1 Sm. L. 90.
    
    
      
      
         3 Sm. L. 278.
    
    
      
       2 Sinn. 154.
    
    
      
      
         1 Dali. 23.
    
    
      
       1 Dali. MU
      
    
    
      
      
         l Dali. 62.
      
    
    
      
      
         2 Dali. 50.
    
    
      
       1 Sir. 129.
      
    
    
      
      
         2 Sail. 194.
      
    
    
      
       2 Dali. 239.
    
   Tilghman C. J.

This action was brought by Samuel Bailie, the plaintiff below, in the Court of Common Pleas of Lancaster county. The charge of the Court is placed on the record, and it appears to me to be correct. There is also a bill of exceptions to the opinion of the Court on the rejection of the evidence of Thomas R. Buchannan, a witness produced on the part of the defendant. Mr. Buchannan was the indorser of the note on which the suit was brought, and consequently, originally liable to an action. But Benjamin Long, the plaintiff, gave him a release, which took away all interest in this suit. In this situation, he was subpcenaed as a witness for the defendant, and in order to deprive the defendant of his testimony, he cancelled the release, and thus became again interested. These facts appeared on the examination of Mr. Buchannan on the voire dire. He said too, that he considered himself as interested, and bound to pay the note, in case the plaintiff should fail in this suit. From these facts two questions arise. 1. Is a witness incompetent, who considers himself as interested, bat in fact is not so ? 2. Will the law permit a witness to deprive a suitor of his evidence, by rendering himself interested for the purpose of incapacitating himself?

■ 1. On the first point there has been a diversity of opinion. In the case of Fotheringham v. Greenwood, 1 Str. 129, Lord Holt, sitting at Nisi Prius, is reported to have said, that if a witness thinks himself interested, he is incompetent, though jn truth he have no interest; so, if he be under an honorary, ,. ,. TT though not a binding engagement to pay costs. Upon this authority, the cases of M'Veaugh v. Goods, 1 Dall. 62, and Innis v. Miller, 2 Dall. 50, seem to have been decided. On the contrary, in Phill. Fv. 41, the criterion of competency, is said to be, the actual interest of the witness, and not his opinion concerning his interest. I confess I never could perceive, on. what principle the dictum of Lord Holt, (undoubtedly a very great Judge,) could be supported. The law of evidence has been more maturely considered, and has undergone material changes, especially with regard to the competency of witnesses, since the time of Lord Holt. Those who hold, that the opinion of the witness, contrary to the fact, may render him incompetent, assign for a reason, that his mind is under a strong bias, in consequence of his opinion. Undoubtedly it is, but not stronger than the mind of a child, who is called to testify for his parent, and who, besides feeling the tie of natural affection, must be influenced by the consideration, that the estate to come to him after his parent’s death, will probably be affected by the event of the suit; yet the child is admitted as a witness, and the bias under which he certainly stands, is submitted to the jury as a circumstance affecting his credibility. The same may be said of an underwriter, who is received as a witness for another person, who has underwritten the same policy. The rule is, that nothing creates incompetency, but actual interest in the cause, in which the witness is to be sworn. Interest or no interest, is a fact which may be- ascertained with certainty. But what may be the opinion of a man, concerning his interest, cannot be known, till he declares it. Testimony may be lost, by the ignorance of the witness, by his want of candour, or his caprice. Besides., if his opinion, that he is interested, excludes him, why should not his opinion, that he has no interest, admit him ? And yet it has never been contended, that a man proved to be interested, may be a witness, because he thinks that he has no interest. It seems to me then, that to reject a witness on the ground of his opinion, against fact, is an anomaly in the law of evidence, and would be attended with great'inconvenience. In order to preserve uniformity, therefore, and at the same time to avoid inconvenience, I shall be for testing the competency of the witness, not by his* opinion. but by the fact. Neither do I think, that we should pay any regard to honorary engagements, because they are things unknown to the law, and therefore leading to uncertainty. When a man speaks of his legal engagements, we understand him. But engagements of honour, depend on his own ideas; they are too fantastical to be admitted in a court of justice. If under an impression, of being bound in honour, he makes a promise to pay, which may be enforced by an action, he will then be interested, and his testimony must be excluded. But, being bound only by a tie, which he may loosen at pleasure, the law considers him as at liberty, and consequently disinterested.

On the second point, there is little difficulty. Mr. Buchan,nan and the plaintiff united, in a contrivance to deprive the defendant of his evidence. This, the law will not endure. If a man, who is privy to a fact, should afterwards become interested in the usual course of business, his evidence is not to be admitted. It would be unreasonable to expect, that he should sacrifice his own interest, for the sake of preserving himself free from interest, for the benefit of another. In such case, therefore, the witness, being interested at the time of trial, is incompetent. But the case is very different, when a man, knowing himself to be a witness relied on by his neighbour, takes pains to become interested, for the purpose of injuring him, especially if this be done, in concert with the adverse party. Such conduct is very improper; it is, in truth, fraudulent in the eye of the law; and, notwithstanding an interest thus acquired, the witness is considered as disinterested. In The King v. Fox, 1 Str. 652, and Barlow v. Vowel, 1 Sid. 586; witnesses who became interested by laying wagers, after they had come to the knowledge of the facts, for the proof of which their testimony was wanted, were held to be competent. The case before us, is very strong. There appears to have been a collusion between the plaintiff and the witness ; clearly, therefore, the witness remained as competent, after he cancelled the release, as he had been before. I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Gibson J. concurred.

Duncan J.

Could Thomas R. Buchannan be received as a competent witness on the part of Benjamin Long, to prove any fact material to his defence ? If he could, did he stand in that situation, that by law he could claim an exemption from examination as a witness, on the e-round, that his testi- . , ° ’ mony might be prejudicial to his own interest ?

It is to be observed, in considering the first question, that the facts he was called on to prove, are not stated; so that the inquiry is not whether he would be permitted to prove facts which might tend to invalidate the note, which he had given currency to by his indorsement, but whether he was incompetent to prove any fact.

The rule, that no man shall be allowed to destroy or explain away his own instrument, is confined to instruments negotiable. 2 Dall. 196. 2 Binn. 166. Baring v. Shippen. Admitting this to be such, and entitled to all the protection extended to paper negotiable and negotiated, free from every objection, discount, and plea which might be offered by the maker against the original payee, (of which it is not necessary to give any opinion,) the rule never has extended so far as to reject the party offered as a witness. There are some facts, which he certainly having no interest, the ground of policy would not exclude him from testifiying. The power of the Court to set aside rules of law, from motives of policy may be justly questioned; but the rule of exclusion of such witnesses oughtnotto be extended further than it has already been carried; the rule never did render such person altogether incompetent; but restrained him from giving any evidence that contradicted the writing, or denied any thing contained in it. Pleasants administrator v. Pemberton administratrix, 2 Dall. 196. A party to such instrument will not be permitted to testify that he put a void security into circulation; but as to any facts happening afterwards, he may (if not interested,) be examined. Warren v. Merry, 3 Mass. 27. Brown et al. v. Babcock et al. ib. 31. And by Parsons Ch. J. in Churchill v. Sutter, 4 Mass. 156, the rule is confined to the invalidation of negotiable instruments; and there he may testify to any facts, excepting such as prove the instrument void at the time of his indorsement. And again in 6 Mass. 434, Barker v. Prentiss, the whole doctrine is considered ; and it is decided, that he may testify to any fact which admits the legality of the instrument in its original form. So in Woodhull v. Holmes, 10 Johns. 231, a party to negotiable paper may be admitted to prove facts subsequent to the date or execution of the note, and which destroy the title of the holder. And in White v. Killing, 11 Johns. 131, an indorser of a promissory note, indorsed before it became , . . . \ „ , ^ due, is a competent witness to prove payment, and that notice was given to the holder, by such indorser, when he indorsed it.

As Buchannan was not interested to support the defence of Long, whatever it might be, he was clearly, as to some facts which might destroy the note in the hands of the holder, a competent witness. Could he then excuse himself by saying, that he was called on to testify against his own interest; in other words, to prove matters which might discharge Long from the payment of the note, and so render himself, as indorser, liable even to Bailie ? At best, this was but an excuse ; but the plaintiff below had no right to object to his competency; he was competent, if he chose it. Was then his unwillingness, to use his own words in the bill of exceptions, a legal reason to deprive Long of the benefit of his testimony? What was the moving cause, or the consideration of the release, we are left to conjecture, but not without a clue to the discovery; but the moving cause for the destruction of the release is avowed; expect, I construe as believe, know; and Buchannan declares, that the release was destroyed, because he was called forward as a witness. “ I expect, says he, on his voire dire, it was, because I was called forward as a witness, that the release was destroyed.” It is not permitted to Judges to shut their eyes, and not to see that which is visible to all. It appears at one time, and. that very shortly before he was called on to be examined, he possessed a release discharging him from all right of action by Bailie, on account of this indorsement, and that this release, on the very morning of the trial, and just before he was subpoenaed as a witness, was destroyed in the presence of Bailie’s counsel, and was destroyed, because he was called forward as a witness.- Shall this contrivance be crowned with success is now the question ? Releases from or to persons having an interest, in order to render them competent witnesses are frequently executed at the bar, even after objections to their competency; but this is quite a different expedient; the destruction of a release to disqualify the person to whom the release had been given, or to afford him an exemption from the legal obligation of testifying the truth. One is to let in the light of truth, the other is to exclude it. Indeed, releases to qualify have been given at such times, and under such circumstances, as that Courts have rejected the evidence; as is stated in Qilb. Ev. 188. If any witness, who has part of the lands, sells, though bona fide and for. a good consideration, if it be after he is summoned as a witness, or after he has had notice of trial, the Court will not admit his evidence. Whether Courts at this day in their liberal anxiety to let in the whole truth, leaving the credit of the witness to the jury, the Court, nevertheless, making such observations as the situation of the witness required, would so decide, I give no opinion; but that the destruction of this release, taking away all interest, for the avowed purpose of smothering the truth, evidently in fraud of the law, and of the party’s vested right to the examination of the witness, should have the effect, intended, and cover under the pretence of constitutional privilege of not compelling a man to swear against his own interest, him, who voluntarily subjects himself to a liability, merely that he may not be obliged to declare the truth, would appear to me to be repugnant to the dictates of reason, the rules of evidence, and the principles of justice. In Pennsylvania, where there can be no bill to compel a discovery, the reason would be stronger than in England. I, therefore, am of opinion, that Thomas R. Buchannan should have been sworn in chief, and that his exclusion was error. On principle and on precedent this opinion is formed; it falls directly within the reason of the cases decided; for being a competent witness for Long when he was about to be called forward as a witness, just before the subpcena was served on him, he could not by any act of his own, nor any act in conjunction with Bailie, deprive Long of the right he had in his testimony; it is one of the very exceptions to that great rule of testimony, the most inflexible of all other rules, “ that a person interested is an incompetent tvitness;” for a party interested will be admitted where he acquires an interest by his own act, after the party who calls him as a witness, has a right to his evidence. Barlow v. Vowel, Skin. 586. Bull. 313. If this were not the case, an unwilling witness might deprive the party in almost every instance of the benefit of his testimony, by his own voluntary act; but so far from the law permitting this, the refusal of one to accept a release, cannot deprive the party of his testimony, much less should the voluntary surrender of a release. I am, therefore, of opinion, that there is error in suffering the witness to decline giving evidence. The iudement should be reversed, and a venire facias de novo , ,° awarded.

Judgment reversed, and a venire facias de novo awarded.  