
    Huntington v. Champlin.
    The drawer of a bill or order cannot be a witness to> prove either the payment or acceptance of.
    Eeeoe from tbe Court of Common Pleas. Huntington brought his action against Cbampbn, on a promissory note. Issue was joined on tbe plea of full payment. On tbe trial of tbe case, one Thomas Adams was produced as a witness, by tbe defendant, to prove tbe payment.— He testified, that some time before tbe institution of this suit, be drew an order upon tbe plaintiff, in favor of said Cbampbn, to the amount of tbe debt contained in tbe note. That tbe order was presented to Huntington, and by him accepted in payment.
    
      There was no other evidence offered; and the plaintiff objected to the admission of this witness, supposing him directly interested to prove the acceptance of his own order, and avoid a suit from Ohamplin on the protest.— But, by the Court of Common Pleas, the objection was overruled, the witness admitted, and judgment rendered for the defendant.
    The plaintiff filed his bill of exceptions, and the judgment was reversed.
   By Dyer, Pitkin and Ellsworth, JJ.

The drawer of a bill or order, cannot be a witness to the acceptance of it, because he hath an interest. If it is accepted and paid, he thereby recovers his effects out of the hands of the payor, or obtains a credit from him; and at the same time discharges himself of a debt or duty to the payee, or charges him in debt: — And if it is not accepted, and it be drawn as is customary, for a valuable consideration, the drawer, besides the loss of credit, becomes immediately liable for the payment of it himself. In either case the drawer’s interest is apparent. That, in which it is the least concerned, is in the transferring a debt due fo him from one person to another; but his own oath cannot be sufficient for this. Further, as the acceplance of a bill, though not paid, binds the acceptor, and an action lies against him for the holder; it is only for the drawer to pass his bills,, as accepted for payment, and swear to the acceptance when called, if this is admissible for proof; and he may force a credit from any one he sees fit to draw upon, and to any amount — which would open a very dangerous door. The drawer, therefore, of a bill or order, cannot be a witness to prove either the payment of it, or the acceptance for payment; and the witness adduced in the Court of Common Pleas, to prove the acceptance and payment of tbe order in tbe present case, was inadmissible, being tbe drawer of it, unless there were some special circumstances in tbe case to take it out of tbe reason of tbe common rule; but none sucb are stated, nor are we to presume tbem, because then tbe bill of exceptions dotb not contain a full and fair stating of tbe case.

Sherman, J.,

dissenting. It dotb not appear to me, that tbe judgment complained of is erroneous.— A bill of 'exceptions was first introduced in England by tbe statute of Westminster. It bas very lately been adopted here, without any statute to authorize and regulate it, on tbe supposed reason of tbe case. ' Within tbe compass of my knowledge, there bas not occurred more than two or three instances of writs of error being brought on bills of exceptions. I shall not question tbe validity of tbe practice, it having been heretofore admitted; but only observe, that tbe party who tabes tbe exceptions, must be presumed to state tbem as strongly in bis own favor as circumstances will admit; therefore, every intendment which can fairly be made consistent with bis stating, should be in support of tbe judgment; as tbe court before whom tbe trial was, must be, supposed to be fully acquainted with all tbe circumstances.

In this case, tbe witness testified, that be drew an order on tbe plaintiff, in favor of tbe defendant, for tbe sum of the note on which, etc. (being £7 14s. 5d.) which tbe plaintiff accepted in satisfaction of tbe note. He does not say, whether tbe order was drawn for value received or not; suppose it was for value received, tbe nonacceptance of it would subject tbe witness to repay tbe same to tbe defendant. If it was not accepted, be became liable to pay it to tbe other: Therefore, the whole amount of the interest of the witness in the case, was to have his election which party he should be accountable to for that small sum; for he certainly must be accountable to the one. or the other; but if the order was not for value received, and was not accepted, he would not be chargeable to either. There is nothing stated as to the ability or inability of the witness, or either of the parties, to make payment.

It is a general rule of the common law, that no person shall be a witness in favor of his own interest; but when he testifies against his interest, he is the strongest evidence: Yet, from the necessity and circumstances of some particular cases, and to prevent a failure of justipe, interested witnesses are admitted by the common law as well as by several statutes; as in preseutions qui tarn for theft, the prosecutor is admitted in his own case, as to the loss and property of the goods: But in such cases (it is said in the books of the law) no general rule can be laid down, but every case rests upon its own particular circumstances, whether the interest be of that nature, or so considerable, as by presumption to produce partiality in the witness; IheTcfoTO, the admission of a witness in such cases settles no rule for the admission in other cases, in some respects similar, where in other respects, circumstances may be different: So admitting the witness to testify in the present case, on a small order negotiated among neighbors, would be no authority for admitting the drawer of a foreign hill of exchange to testify to the acceptance of it, where the nonacceptance might subject him to large damages and interest. In further illustration and confirmation of these principles, see the following cases in Strange’s Reports— Bronson v. Avery, 507 — Martin v. Horrel, 647 — Lockhart v. Gorham, 35; Hawkins v. Perkins, 406; Ball v. Bostwick, 575; Norcot v. Orcot, 650; Lewis v. Fog, 944; Rex v. Robbins, 1069.

Oases where witnesses testified against their interest. See Str. 480, Atwood v. Dent; Cowper, 70, 71, Butler v. Cook; 2 Ld. Raym. 1008.

Note.— The chief justice, Law, excused himself from judging in this case, one of the parties being his tenant.  