
    
      TERRITORY vs. BARRAN.
    
    Spring 1811.
    First District.
    The apparent indorser of a note, admitted to prove the forgery of his name.
    Indictment for forgery. Bellechasse, whose signature, as the first endorser of a note, was charged to have been forged, was offered as a witness on the part of the territory. He was asked whether he had a release from the subsequent endorser, and answered in the negative.
    
      Livingston and Moreau for the defendant.
    He cannot be sworn. It is provided by the 33d section of the act of 1805, chap. 50, that the rules of evidence in criminal cases, shall be according to the common law.
    A person whose property may be affected by a forgery, is no evidence to prove it upon an indictment. 2. Hawkins's P. C. 611.
    When a man is indicted for forgery, the party, whose hand is said to be forged, shall not be admitted to prove the fact. For his hand apparently against him is evidence (until the contrary be proved) of an obligation; and, therefore, he shall not be permitted in the indictments, to make proof, while he has an interest in the question (the supposed obligation standing in apparent force against him) that it was not his hand. Loft's Gilbert 222, Puller's N. P. 288. 1. Mc Nally 141.
    The authorities which support this principle are numerous. The British precedents are also supported by American decisions.
    
      In the case of the King vs. Russel, the court held that Lately, the person whose name was stated to be forged, was an incompetent witness to prove that fact. 1 Leach C. C. 10. In that of the King vs. Taylor, it was determined that the drawer of a bill was not a competent witness to prove that a receipt, endorsed for the value of it, was a forgery, id. 225. In the case of the King vs. Boston, Lord Ellenborough said : a prosecutor shall not be allowed to say that a bond purporting to be made by him, was forged. 4 East, 582.
    The exceptions, which occur in the books, prove the correctness of the principle. Dr. Dodd, having forged a bond, in the name of Lord Chesterfield, that nobleman was allowed to prove the forgery, a release having been executed, by the apparent obligees. 1 Leach C. C. 185. In the case of the King vs. Akehurst, the supposed drawer of a note, holding a release from the payor, was admitted as a witness, id. 178.
    The courts of the states of New-York, Vermont and Connecticut, haved acted upon this principle.
    C. J. Kent, in the case of the People vs. Howell, expressed himself thus : the ancient rule in England that a witness, whose name was forged, was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in this court ; and it was adopted in 1794. The grounds and reasons of that decision are not before the public, and We, therefore, do not known them. It is probable? that the court assumed the English principle, as they found it then existing : but since that time, the question of interest in a witness, has been investigated and defined with more precision, both in England and in this state. The rule now in ail such cases, and I believe, I may say in all criminal eases, except in the case of a forged instrument, is that a witness is to be received, if he be not interested, in the event of the suit, so that the verdict could be given in evidence, in an action to which he was a party. 4 Johnson 302.
    In the case of the State vs. Bimson, the supreme court of the state of Connecticut held, that the person, whose name was forged, could not be allowed to prove the forgery. I Root 307. The same decision was made by the same court, in that of the State vs. Blodget. id. 354.
    And in the state of Vermont, in the case of the State vs. A. W. 1 Tyler. 261.
    
      J. R. Grymes and Derbigny, for the territory.
    In ascertaining what was the principle of the common law, we are not give implicit faith to the crude and undigested ideas of the first law writers, but avail ourselves of the learning, and industry of modern ones, and this court is to declare the law, in the same manner as a British court’of justice would at this day, unshackled and unbiassed by any statutory provision, or any decision grounded on a statute.
    All the decisions which have just now been quoted, are since the statute of 5 Elizabeth. This statute has wrought a considerable difference in the admission of testimony, in cases of forgery, and an examination of the authorities, relied upon by the defendant, will show, that we have not sufficient materials to enable us to discover, that the difference which now exists, in the courts of England, in cases of forgery, is bottomed on the principles of the common law.
    
      Hawkins is first relied upon.
    This writer does not speak decisively, in the part of his work which is quoted. His expressions are, I take it to be generally agreed We, and he concludes, by informing us that the rules of evidence concerning this matter seem not to be clearly settled. 2 Hawkins 611. and Lord Ellenborough, in the case cited, recognising the position, as established too firmly to allow any deviation from it, without the authority of parliament, owns his inability to discover upon what principles the anomalous exception from the general rule, in eases of forgery, is grounded. 4 East, 582.
    The principle, that a person whose property may be affected, shall not be admitted to prove the Let from which the injury arises, upon an indictment, is far from being universal : and the books are full pf cases in which a person, to whose damage, an indictment concludes, has been allowed and admitted an evidence, and his credit left to the jury.
    In Parris's case, an information being brought against him, for that he, fraudulenter & deceptive, procured one Ann Wigmore, to give a warrant to confess judgment, and she being brought forward to prove the cheat, it was debated whether she might be admitted 5 for if he was convicted, the court would set the judgment aside : nevertheless she was sworn. 1 Ventris, 49.
    A person beaten, and generally any other person to whose damage a criminal information concludes, is a good evidence to prove the battery or other misdemeanor, notwithstanding he may have an action. 2. Hawk. 611.
    Lord Holt, in Regina vs. Macartney & al. admitted a person who had been cheated to prove the fact on the indictment. 1 Salkeld, 2 6. 6 Mod. 391. 2 Ld. Ray. 1179,
    If a woman give a bond or note to a man to procure her the love of J. I. by some spell or charm, in an indictment for the cheat, tho’ it tend to avoid the note, yet she shall be a witness. Per Holt. C. J. Regina vs. Sewell, 7 Mod. 119.
    The proprietor of a note was admitted to prove the tearing of it by the maker, on an indictment. King vs. Moyse, 1 Strange, 595.
    Sir William Lee allowed a party, supposed to be defrauded to be witness on an indicment for perjury. 2 Strange, 229. Rex vs. Broughton.
    
    
      In Abrahams gui tam vs. Bunn, Lord Mansfield held that the borrower oi money, was competent witness to prove both the usurious contract and the payment of the money. 4 Burr, 2251.
    Having established that the. admission of Bellechasse is not contrary to the general principle ; it remains to shew that the particular exception, which is said to prevail in Great Britain in cases of forgery, is not absolutely recognised in the American courts.
    In the case of Hutchinson, the Superior Court of the state of Massachusetts said, that although they believed it to be now settled in England that the person, whose name is said to be forged, is not a competent witness to prove the forgery, yet the practice had been for a long time, otherwise, in that state. Mass. 11. 8.
    
    In the case of one Keating, tried in Pennsylvania, Meng, the person whose hand was stated to be forged to a note, was admitted to prove the forgery. C. J. M'Kean, citing several cases in which it had been thus determined. 1 Dallas, 110.
    In Ross’s case, in the same court, Heister, the apparent maker of the note stated to be forged, Was allowed to prove the forgery. The Chief Justice saying : I admit that early in life I entertained a different opinion on this point : conceiving then, that the weight of adjudged cases was adverse to the competency of the witness, tho’I thought it hard that the law should be so. My opinion has been changed by the modern authorities, which give an evident preponderance to the opposite scale. In general, the judges of late have been inclined to a more liberal admission of testimony, applying exceptions rather to the credit than to the competency of witnesses,-Every principle of policy must enforce the necessity of allowing the person whose name is said to be forged to give evidence of the fact, 2 Dallas, 240.
   By the Court.

The general principle of the common law, in regard to the inadmissibility of a witness on account of interest in the event of the; suit, is now clearly understood, ft is confined to such cases in which the verdict may be given, in evidence in a suit brought for or against the witness. In other cases, the objection is said to go to his credibility only. In this manner, is the law now understood in England and the United States.

It cannot, however, be denied, that in indictments for forgery, a different rule prevails in the former, and in some pf the latter, country. One which forms a wide exception, In some of these states, in which the proceedings are according to the common law, however, the exception does not seem to have been received.

In examining the cases cited and those to which we are able to have acess, it does not appear that the exception was admitted before the reign of Elizabeth, in the fifth year of which was passed the statute, on which most indictments for forgery are brought; and British writers seem to admit that the exception is, at least in a considerabie degree, bottomed on some of the provisions of that statute.

The exception cannot be traced to the common law. Cases for forgery, in which the person whose hand was charged to be forged, might be brought to disprove it, must have been very rare. Three kinds of instruments only were the subject of forgery : records, wills, and deeds. The former depended on the evidence of uninterested persons generally. In the case of a will, the testator could not be offered to prove the instrument. The efficacy of deeds depended on the sealing and delivery, not on the signature of the grantor. Indeed, they were not, it is believed, signed by him.

The general rule is certainly binding upon the Court, in all cases in which the exception has not the same force. According to it the witness is not to be rejected, and his credibility is to be weighed by the jury.

The exception is bottomed on decisions, all of which appear made since the statute of Elizabeth. It does not appear that it existed at common law. The courts of Pennsylvania and Massachusetts, who were not authorised to reject it by statute, support us in saying so.

Witness sworn.

The defendant’s counsel offered a witness to prove that the defendant had himself given information of the forgery to a justice of the peace, in order that a prosecution might be instituted : but the court, after hearing argument, declared the testimony inadmissible saying; a man could not fabricate evidence for himself.

The jury not agreing on a verdict, a mistrial took place by consent, and the governor ordered a nolle prosequi to be entered.  