
    S. S. Farrar, Bro. & Co. vs. John A. Metts.
    
      Evidence.
    
    It is settled, in this State, that parties to a negotiable instrument, in a controversy between other parties, are competent witnesses to invalidate the instrument, if they have no interest which disqualifies them.
    BEFORE WHITNER, J., AT LAURENS, SPRING TERM, 1860.
    The report of bis Honor, the presiding Judge, is as follows:
    “This was an action of assumpsit by indorsees, against acceptor on following bill of exchange :
    “ $20,000. Charleston, Sept. 22, 1858.
    “ Twelve months after date of this first of Exchange, second unpaid, pay to the order of ourselves twenty thousand dollars, for value received, and charge to account of
    “ Yours respectfully,
    “ (Signed) WALKER & GLEN.
    “ To Dr. John A. Metz, Clinton, So. Ca.
    
    “ (Accepted,) John A. Mettz.”
    
      “ This was an accommodation paper, indorsed to plaintiffs, and by them held as a collateral to secure the payment of a subsisting debt, then renewed, and purchases then made by drawers, of groceries in their line of business. The former amounting to three thousand six hundred and fifty-nine dollars and -fifty-seven cents, the latter to ten thousand and nine dollars and forty-eight cents. Notes were given at same time on this renewal and these purchases, falling due at periods within the day of payment of the bill of exchange and of same date. The drawers had been sued and judgment obtained, and had made an assignment and were now insolvent.
    “ As a matter of defence, the drawers were offered to prove that at tbe acceptance of the bill it was understood and agreed, that the same should not be used until at least three other persons had become jointly liable with the defendant; that the drawers proposed therewith to raise money to purchase negroes, and that being thus incomplete, the bill was _ transferred to plaintiffs with full notice of the fact.
    “ Objection was made as well to the competency of the ■witnesses as also to the evidence itself: 1. Because of interest in the event of the suit. 2. Because it was parol evidence, inconsistent with the terms of the bill of exchange. 3. Because being a negotiable instrument, on the ground of public policy, one should be excluded from denying his own act whereby currency and credit had been given — Nemo aliegans suam turpitudinem est audiendus. 4. Because the proper forum for remedy was in equity, where all the parties could be assembled and the-whole truth elicited without placing an innocent indorsee, perhaps, at the mercy of such combinations.
    “ I thought the witnesses incompetent, on the score of interest, being liable for costs, as the party accommodated in the event of recovery, but hesitated to maintain the further proposition.
    “ The objection, on the first ground,'was removed by the execution of a release. -The second objection was strenuously renewed, and lest injustice might be done by the sudden springing of questions not anticipated and stoutly denied, perceiving on a hasty examination of authorites that differences existed, against the inclination of my own judgment, I sustained the objection, hoping that the cause of truth might be better served by first settling the principle and leaving the contestants an open field.
    “ I was reminded of the wholesome precaution I once received from one of my brethren, to be first satisfied that the witness was prepared to speak as to the matter inquired after, before his testimony was refused, by the circumstance which-transpired after verdict for plaintiffs, equally startling to all parties, I presume, to wit: a public denial by one, if not each of the witnesses, of tbe truth of the allegations.set up in defence and as matter of justice to themselves. Being thus urged, after the ease had closed, to make such a statement to the jury, it is, perhaps, due to the same party to add the same explanation and for the reason given.”
    The defendant appealed, and now moved this Court for a new trial on the ground :
    Because, it is respectfully submitted that his Honor erred in holding the drawers and indorsers of the bill sued on, incompetent witnesses in behalf of defendant, who was sued as acceptor: particularly after they had been released from liability to the acceptor, for all costs and damages sustained by the acceptor in the above suit.
    Simpson, On, for appellant.
    Parties, to bills of exchange, are admitted or rejected in suits between other parties, like any other witnesses, according as they are interested or not in the event of the suit. 1 Green. Ev., § 399. In an action against the acceptor of a bill, the drawer is in general a competent witness for either party, because his interest in the event of the suit is balanced. 1 Green. Ev., § 399 ; 2 Green. Ev., § 203. If the drawers in this case had a preponderating interest in favor of acceptor, because liable for costs, that objection was removed by release. The objection that parties giving, currency to a negotiable instrument should be excluded on the ground of public policy — not well taken. 1 Green. Ev., § 383. The leading case to sustain this position, the case of Walton vs. Shelly, 1 T. R., 296, has been overruled by the case of Jordaine vs'. Lashbrooke, 7 T. R., 599. This latter case, though not followed in all the American States, has been in many of them. It has been fully sustained in South Carolina. Knight vs. Packard, 3 McO., 71; Smith, 
      vs. Cherry, 1 Hill, 148; Haig vs. Newton, 1 Mill Con. Rep., 429.
    
      Sullivan, McGowan-, contra,
    cited 1 Green. Ev., §§ 383, 385, note; 1 Stark., 84 ; 1 Gow., 113 ; 4 Taunt., 464; 1 Phil. Ev., 95, 96; 1 Bail., 479 ; 3 Strob., 184; 7 Rich., 14; Chit, on Con., 99, 100; Chit, on Bills, 164, 165, 166, and notes; 1 Green. Ev., § 275; 1 Strob., 412; 3 Phil. Ev. by C. & H., 1460; 5 Eng. O. L. R., 468; 2 Eng. O. L. R., 427; 28 Eng. C. L. R, 73 ; 1 Phil. Ev., 555 ; 1 Sp., 24; 4 Ad. & El., 852.
   The opinion of the Court was delivered by

Wardlaw, J.

This was a suit by indorsees against the acceptor of a bill of exchange, apparently accepted without funds for the accommodation of the drawers. The drawers were offered as witnesses by the defendant, and objected to as interested in the event of the suit, as certainly liable for the costs of the suit, and probably for the whole sum in litigation. This objection was removed by the execution of a release, the terms of which are not before us, but which, as they satisfied the judge, we presume extinguished the whole liability of the witnesses to defendant. It was further objected at the same time to these witnesses, that they were incompetent to invalidate or discredit a negotiable instrument to which they had given currency by their signature. This objection was sustained by the judge hesitatingly, and for his supposed error in this respect defendant appeals.

We are not disposed to engage at large in the controversy, which for a time disturbed the Court in England, Walton vs. Shelly, 1 T. R., 296; Bent vs. Baker, 3 T. R., 27; Jordaine vs. Lashbrooke, 7 T. R., 599, and which has divided the opinions of American tribunals. 1 Green., 384; 3 Cow. & H. Phil. Ev. 1460. We regard the point as settled in this State, and on satisfactory reasoning by the cases of Knight vs. Packard, 3 McC., 71; Haig vs. Newton, 1 Mill, 429; Smith vs. Cherry, 1 Hill, 148. Parties to a negotiable instrument are competent witnesses in a controversy with other persons concerning the instrument, where they have no interest in the event of the suit.

Our only doubt in the case has been produced by the seeming end, according to the report of the Judge, for which the testimony of these witnesses . was offered. We do not mean to adjudge any thing as to the effect of their testimony. It may be that questions proposed to them are incompetent, such as leading to a verbal explanation of a written instrument. But we do adjudge that the witnesses offered, after a sufficient release, were competent, and we do not affect the sagacity of foreseeing what may be the extent of their testimony. Possibly they may prove that the acceptance was a forgery, or that the plaintiffs have made a fraudulent use of the instrument. Ordered that a new trial be granted. ;

O’Neall, O. J., and Johnstone, J., concurred.

Motion granted.  