Warren v. Merry 2 Tyng 27, 3 Mass. 27

2 Tyng 27 • 3 Mass. 27

Isaac Warren versus Jonathan Merry.

A party to a negotiable security shall not be a witness to prove that, at the ti ne he gave it currency, it was void. But he may be permitted to testify to any facts happening afterwards, if he is not interested.

This was assumpsit against Merry, as endorser of a promissory note, dated August 30, 1799, for 250 dollars, payable to him or order, in thirty days, with grace, and subscribed by Amos Lewis, Jun. and John Hunting.

Upon the general issue pleaded, the cause was tried at the last November term in this county, before Parker, J. The plaintiff proved a demand on the promisers, and notice to the defendant; and, the signatures being acknowledged, he rested his case here.

The defendant offered Hunting, one of the original promisers, as a witness, to prove that, before the note became due, he paid to the plaintiff fifty dollars, on account thereof, and gave him a new note *24for the balance, which was received in full satisfaction. It was agreed that Hunting had become a bankrupt since making the note, and obtained his certificate April 3, 1804, and that the defendant has released to him all demands on account of the note.

The witness was rejected, and a verdict taken for the plaintiff, subject to the opinion of the Court, whether, under the above circumstances, Hunting was a competent witness to testify in this cause.

For the rejection of the witness as above stated, the defendant moves the Court that the verdict be set aside, and a new trial granted. The motion was submitted without argument.

Curia.

In the trial of this cause, the judges rejected Hunting as a witness; and whether he was a competent witness [ * 28 ] * is the question now for the decision of the Court. The general objections to the competency of a witness arise either from infamy or interest. There is no imputation on Hunting’s character; and the defendant’s release discharges him from all interest in the event of this suit.

In actions on negotiable securities, an objection lies against a party to the security being received as a witness. And this objection is supported by the case of Walton vs. Shelley (1). A majority of the judges, in the case of Jordaine vs. Lashbrooke & Al. (2), deny that case to be law. But it appears from the case of Hart vs. M’Intosh (3), that the judges of Common Pleas adhered to the principle established in Walton vs. Shelley. This Court, soon after that case, adopted a similar rule, and similar decisions have been conformed to it. The sound reason, upon which the principle has been established in this Court, arises from the injury to the public, if a negotiable security might be destroyed by the testimony of a man who had given it currency. The law will not permit him to testify that, by holding out a credit to the world, he had put into circulation a void security. The limitation of the rule clearly results from the reason of it. A party to the instrument shall not be a witness to prove that, at the time he gave it currency, it was void. But to any facts happening afterwards he may (if not interested) be permitted to testify.

In this case, Hunting is offered to prove that, after the negotiation of the note to the plaintiff", and before it was payable, he paid the plaintiff fifty dollars, and gave him his note for the balance. These are facts which are consistent with the good faith of the witness His testimony would establish the validity of the note, when the plaintiff received it, and would not destroy it; and as he had no *25interest in the event of the suit, he ought to have been received as a competent witness. The verdict therefore must be set aside, and a new trial granted.

L. Richardson, for the plaintiff.

B, Whitman, for the defendant (4).

Warren v. Merry
2 Tyng 27 • 3 Mass. 27

Case Details

Name
Warren v. Merry
Decision Date
Jul 1, 1807
Citations

2 Tyng 27

3 Mass. 27

Jurisdiction
Massachusetts
Court
Massachusetts Supreme Judicial Court

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