2

Thus, the note having been negotiated when overdue, he may prove that it had been paid before such negotiation.1 Where the indorsement is special, e.g., "without recourse, or for collection," 3 or where at the time of indorsement some agreement is made with the holder restricting the liability of the indorser, the latter is a competent witness in an action on the paper so indorsed.

(6) Guarantors or Sureties. It has been decided that a guarantor of a promissory note, the effect of whose testimony would be to render himself liable thereon, is a competent witness for the defendant in a suit against the maker, to prove payment of the debt for which the note had been pledged; but a guarantor “to pay the execution which may be recovered on" a certain note, "in the lifetime of said execution," is interested to lessen the amount to be recovered, and is not competent to prove a partial failure of consideration. So, also, the guarantor or fraudulent assignor of a note is not a competent witness for the assignee, in an action against the maker, to support the consideration. And a guarantor of the solvency of the maker is not a competent witness to prove that the note was given without consideration.8

The suit being against the principal maker, a surety not sued may testify for the maker. And he may show usury in the note or transaction out of which it originated.10 So, also, where two persons are sureties for the maker, and payment of the note is enforced from one of them, in an action by him against the principal to recover the amount of money so advanced, the other surety is a competent witness for the plaintiff.11

1 American Bank v. Jenness, 2 Metc. (Mass.) 288; Thayer v. Crossman, 1 Id. 416; Rosevell v. Gardner, 2 Penn. (N. J.) 791.

2 Boyd v. McIvor, 14 Ala. 593; Bailey v. Lumpkin, 1 Ga. 392; Merritt v. Merritt, 20 Ill. 65; Abbott v. Mitchell, 18 Me. 355; Billingsly v. Knight, Term (N. C.) 103. Contra, Cummings v. Fisher, Anth. (N. Y.) 1.

6 Paine v. Hussey, 17 Me. 274.

7 Brodnax v. Brodnax, 13 Sm. & M. (Miss.) 369.

8 Hanna v. Spencer, 3 Ind. 351. 9 Atwood v. Wright, 29 Ala. 346. 19 Webb v. Wilshire, 19 Me. 406; Phillips v. Caldwell, 2 Rich. (S. C.) 1, Nichols . Bellows, 22 Vt. 581.

11 Benedict v. Hecox, 18 Wend. (N. Y.) 490. See infra, § 74.

(7) Holders or Payees. In an action by a transferee of a bill or note against the maker or drawer, the payee, especially if released, or not legally interested,2 was generally admitted as a witness, to prove the execution of the paper sued on,3 or a subsequent agreement between the maker and himself, by which the note was to be extinguished, or to show the time,5 or circumstances and terms under which the indorsement to plaintiff was made, or the genuineness of the maker's signature, or to prove the consideration. So he was competent where his indorsement to the plaintiff was "without recourse," or after maturity,10 or the transfer was by delivery only.11

Where the suit was against a subsequent indorser, the payee was held competent to testify to any fact which did not impeach the genuineness of the paper, or go to its discharge before or at the time when he parted with it.12

It was generally held that in an action by a subsequent holder against the maker, the payee was competent to impeach the validity of the note by showing want or failure of consideration,13 or alteration in a material part,14 or that the paper was not transferred in the due course of trade.15 In one case the payee was permitted to prove that the note sued on was given without consideration, and that after it hold that the payee of a promissory note, who has negotiated it, is not a competent witness for a subsequent

1 Matheny v. Westfall, 4 Blackf. (Ind.) 491; Leonard v. Wildes, 36 Me. 265.

2 School District v. Rogers, 8 Iowa, holder in an action against the maker.

316.

3 Matheny v. Westfall, supra.

Bailey . Knapp, 19 Pa. St. 192; Halz v. Snyder, 26 Id. 511; Foreman v. Ahl, 55 Id. 325. Compare, as sustaining the text, Smith v. Richmond, 19 Cal. 476; Slack . Moss, Dud. (Ga.) 161; Davis v. Sawtelle, 30 Me. 389; Nichols . Artman, Harp. (S. C.) 285. Stone v. Vance, 6 Ohio, 246. 12 Rives v. Marrs, 25 Ill. 315. That

4 Nash v. East, 19 La. Ann. 165. 5 Spring v. Lovett, 11 Pick. (Mass.) 417.

243.

Bigelow v. Heyer, 3 Allen (Mass.) the payee of a note payable to bearer

8 Evans v. Dela, 35 Pa. St. 451. See Dela v. Evans, 3 Phil. (Pa.) 397.

9 Edgerly v. Shaw, 25 N. H. 514. 19 Seeley v. Engell, 17 Barb. (N. Y.) 530; Lane v. Padelford, 14 Me. 94.

11 Evans v. Dela, supra; Calkins v. Packer, 21 Barb. (N. Y.) 275.

The principles stated in the text seem to be in accordance with the great weight of authority, but there is no lack of respectable decisions which

is competent, see Rich ». Dupree, 14 Ga. 661; Whitaker v. Brown, 8 Wend. (N. Y.) 490. Contra, see Rice v. Stearns, 3 Mass. 225. And see Davidson v. Love, 1 Ala. 133.

13 Davidson v. Love, supra, Manning v. Manning, 8 Ala. 138 (a gaming note); State Bank v. Seawell, 18 Ala. 616; Hawkins v. Cree, 37 Pa. St. 494. 14 Smith v. Cheney, 1 Hill (S. C.) 148. 15 Bailey v. Cooper, 5 Humph. (Tenn.) 400.

had been paid and given up to the promisor, it was again placed in the hands of the payee for another purpose than that of being paid, and that a subsequent indorser took it with notice of all these facts.1 In all these cases the objection goes to the credibility, not to the competency of the witness; but a contrary rule is maintained in some jurisdictions.2

Again, the weight of opinion is that the payee may prove that the note had been paid to him before he transferred it,3 or that it was tainted with usury. So, also, in support of the action, where the maker's defence is the statute of limitations, the payee may prove a new promise within the six years, or a partial payment relied on to take the case out of the statute; such testimony being clearly against interest.

(8) Parties to Accommodation Paper. The early cases deny the competency of the maker of an accommodation note to testify for the accommodation indorser, in an action against the latter by the holder, on the ground of the maker's interest, even where that interest is limited to the question of costs; and the same rule of exclusion was applied to the drawer of a bill, whose testimony was offered by the acceptor when sued by the holder. Thus, the maker or drawer was not permitted even to show usury in such cases, and that, too, where the usurer himself was the

1 Fish v. French, 15 Gray (Mass.) (N. Y.) Cas. 60; Williams v. Matthews, 520.

2 Wilson v. Walker, 4 Houst. (Del.) 96; Coon v. Nock, 27 Ill. 235; Strang r. Wilson, 1 Morr. (Iowa) 84; Clapp r. Hanson, 15 Me. 345; Kobbe v. Landecker, 32 Mo. 170; Rosenberger r. Bitting, 15 Pa. St. 278; Foreman v. Ahl, 55 Id. 325.

3 Smith v. Morgan, 38 Me. 468; Williams v. Miller, 10 Sm. & M. (Miss.) 139; Fitch v. Hill, 11 Mass. 286; Bryant r. Ritterbush, 2 N. H. 212; Bobo r. Bostick, 2 Bail. (S. C.) 106.

Harvey Ellithorpe, 26 Ill. 418; Richards r. Marshman, 2 Greene (Iowa) 217; Prather v. Lentz, 6 Blackf. (Ind.) 244; Ringgold v. Tyson, 3 Har. & J. (Md.) 172.

5 Howe v. Thompson, 11 Me. 152. 6 Sibley v. Lumbert, 30 Me. 253. See also Jones v. Hake, 2 Johns.

3 Cow. (N. Y.) 252; Beggs v. Butler, 9 Paige (N. Y.) 226; Wallace v. McElevy, 2 Grant (Pa.) Cas. 44; Scull v. Mason, 43 Pa. St. 99; Benior v. Paquin, 40 Vt. 199, in all of which cases the holder of the paper was held competent; and compare Harbin v. Roberts, 33 Ga. 45; Cushman v. Downing, 29 Me. 459; Shaver v. Ehle, 16 Johns. (N. Y.) 201; Brown v. Street, 6 Watts & S. (Pa.) 221, where the contrary was held.

7 Chur v. Keckeley, 1 Bail. (S. C.) 479; Bank of Charleston v. Chambers, 11 Rich. (S. C.) 657.

8 Smith . Thorne, 9 Watts (Pa.) 144; Ford v. Nichols, 3 Gratt. (Va.) 88.

108.

Cowles v. Wilcox, 4 Day (Conn.)

plaintiff. But where the defendant executed a release to the witness, he was held competent to testify for or against him.2

In Pennsylvania it was held that the maker was competent to prove facts dehors the note, showing an agreement for satisfaction of it, tantamount to payment, the rule being that it is the character of the testimony, rather than the relation of the party to the instrument, that governs the question of the admissibility of such a witness; and that if the witness be not involved in the immediate result of the suit, the policy of the law only holds him to silence in regard to acts which might invalidate the paper in its original concoction, or the consideration of the indorsement.3

(9) Parties to, or Holders of, Forged Paper. The rule was well settled at common law, that in a prosecution for forgery, the person whose name was alleged to have been forged was a competent witness to prove the forgery. He could testify

1 Chandler v. Morton, 5 Me. 374. 2 Southard. Wilson, 21 Me. 494; Commercial Bank v. Whitehead, 4 Ala. 637; Darling . March, 22 Me. 184; Bird . Cole, 6 Metc. (Mass.) 326; Bowner. Hyde, 6 Barb. (N. Y.) 392; Branch Bank v. Coleman, 20 Ala. 140; Kennedy v. Lancaster County Bank, 18 Pa. St. 347.

3 Work v. Kase, 34 Pa. St. 138. The same court held, in an earlier case, that in an action to recover from a prior indorser the amount advanced to take up a note, the maker was a competent witness to prove that the note was indorsed for the accommodation of the party making the advance. Wright v. Truefitt, 9 Pa. St. 507. As to when the acceptor of an accommodation bill was considered competent to prove the bill an accommodation bill, or to show usury, see Knowles v. Stewart, 2 Cr. C. C. 457; Orr v. Lacey, 2 Dougl. (Mich.) 230. When the payee was admitted to testify to the same matters, see Lyon v. Boilvin, 7 Ill. 629; Newell v. Hatton, 10 Gray (Mass.) 349; Bank of Penn. v. McCalmont, 4 Rawle (Pa.) 307; Robertson v. Stewart, 5 Watts (Pa.) 442. To the contrary, see Finnell v. Cox, 3 Metc. (Ky.) 245; Letson v. Dunham, 2 Gr.

(N. J.) L. 307; Gildersleeve v. Martine, 19 N. Y. 321. As to the competency of the indorser in such cases, see Hall v. Hale, 8 Conn. 336; Greenough r. West, 8 N. H. 400; Bank of Montgomery v. Walker, 9 S. & R. (Pa.) 229; Mitchell v. Conrow, 5 Whart. (Pa.) 572; Barton v. Fetherolf, 39 Pa. St. 279; Jones v. Matthews, 8 Lea (Tenn.) 84; s. c., 41 Am. Rep. 633.

4 Simmons v. State, 7 Ohio, Pt. I. 116; Pennsylvania v. Farrel, Add. (Pa.) 246; Noble v. People, 1 Ill. 29; Commonwealth v. Hutchinson, 1 Mass. 7; Commonwealth v. Snell, 3 Id. 82; Commonwealth v. Waite, 5 Id. 261; People v. Dean, 6 Cow. (N. Y.) 27; Respublica v. Wright, 1 Yeates (Pa.) 401; Pope v. Nance, 1 Stew. (Ala.) 354; State v. Phelps, 11 Vt. 116; State v. Shurtliff, 18 Me. 368; Commonwealth v. Peck, 1 Metc. (Mass.) 428; State v. Brunson, 1 Root (Conn.) 307; Bacon v. Minor, Id. 258; State v. Blodgett, Id. 534; State v. Whitten, 1 Hill (S. C.) 100. And see White v. Green, 5 Jones (N. C.) L. 47. Contra, in an early case in Vermont, under the provisions of a statute disallowing the evidence of the "party aggrieved" in certain prosecutions. State v. A. W., 1 Tyler (Vt.) 260.

in such cases even though a civil action was pending against him, to which the proof of forgery would be a sufficient defence; and the person to whom the forged instrument was passed was also a competent witness; so was the cashier of the bank from which the forged paper purported to have been issued. But the bona fide indorser, unless he had

paid the note, was excluded.*

§ 66. Non-negotiable Paper, Parties to. — It was well settled at common law, that in the case of non-negotiable paper, any party to the paper was competent as a witness to prove it void in such a case there was no bona fide purchaser for value and without notice, to be protected.5 Thus a party to a sealed note was held competent to prove an extension of time to himself, thereby discharging another party, who was a surety, under a plea of payment, and a special plea of the extension. So, also, the assignee of such a note was competent to prove payment to himself, and the maker, to prove payment to the payee, or to testify as to the validity of the consideration of the note.9 And where there were two joint makers, only one of whom was sued, the other was held competent on being released by the defendant.10

8

§ 67. Obligor or Obligee. (1) Obligor. In a comparatively early case in the Supreme Court of the United States it was decided that one of the principals in a bond, released by his co-obligors, is admissible to prove that one of them agreed to sign the bond on condition that another person should also sign it, which was not done. The court limited

1 Commonwealth v. Peck, 1 Metc. (Mass.) 428. But see State v. Stanton, 1 Ired. (N. C.) L. 424.

eration was competent to impeach it, where he was not interested, or was released, except in cases where a party

2 State v. Nettleton, 1 Root (Conn.) to negotiable paper was prevented

308.

from impeaching it. Topping v. Van

3 Com. v. Read, Thach. (Mass.) Cr. Pelt, 1 Hoffm. (N. Y.) 545. Compare 180.

4 Respublica v. Ross, 2 Yeates (Pa.) 1; s. c., 2 Dall. (U. S.) 239.

5 Watts r. Smith, 24 Miss. 77; Brown v. Babcock, 3 Mass. 29; Hill v. Payson, Id. 559; Worcester v. Eaton, 11 Id. 388; Loker v. Haynes, Id. 498; Hudson v. Hurlbert, 15 Pick. (Mass.) 423. In an early New York case in the Court of Chancery it was held that one who had transferred such an instrument for a good consid

Cameron v. Paul, 6 Pa. St. 322.

6 Miller v. Stem, 2 Pa. St. 286.

7 Johnson v. Blackman, 11 Conn. 342.

8 Fitch v. Boardman, 12 Conn. 345. Contra, see Corgan v. Frew, 39 Ill. 31. 9 Fosdick v. Starbuck, 4 Blackf. (Ind.) 417.

10 Cameron v. Paul, 6 Pa. St. 322. 11 United States v. Leffler, 11 Pet. (U. S.) 86.