Harley v. Emerick

1 Miles 36

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: June 22, 1835
• Status: Published

Opinion

The opinion of the Court was delivered by

Pettit, President.

The rule, that a man should not be allowed to invalidate an instrument to which he had given the credit of his name, was originally founded upon supposed motives of policy, and was an innovation upon the principles of the common law, which allowed every one, not interested, and not of infamous character, to be a witness. The rule is in force in Pennsylvania only so far as it relates to negotiable instruments actually negotiated. 2 Binn, 165 ; 1 Rawle 196. If a party to a note cannot, be a witness in a case where one of the original parties is concerned, it, must be on some other ground. In relation, however, to Use holder of a promissory note, to whom it has been regularly indorsed, the rule does exist, and hence the question is at once presented, was Francis Harley an original party to the note, or was he not1? If this question be answered affirmatively, the rule does not apply, and there being no other ground of objection, George Emerick could be a witness. Prima facie, Francis Harley is not an original party ; nor can he be treated as such a party till proof be first made of the fact. Here, George Emerick, the drawer, is offered to furnish that proof, and thus to prepare the way for the introduction of his own testimony, by showing that the rule which excludes it does not apply in favour of Francis Harley. Now the case of Griffith v. Reeford, 1 Rawle 196, expressly decides that a party to a note, thus liable to an original objection to his competency, cannot be allowed to open his lips, for any purpose, while that objection exists; and of course cannot be heard to remove, on the credit of his own testimony, that very objection. The amount of that decision is, that the objection must be removed by some other evidence. Here, then, it should be shown by some other proof than that derived from the drawer himself, that Francis Harley was an original party to the note, before the drawer can be heat'd to prove that Harley was not to look to the indorser.

The testimony was therefore improperly received, and a new trial is awarded.

This decision rests entirely upon the authority of the case of Griffith v. Reeford ; for though the opinion of the supreme court was delivered by the chief justice in but a few words, and was dissented from by two of the judges, yet it is altogether obligatory upon this court. Were we at liberty to speculate upon the subject, we might be inclined to express a desire to see the law settled in this commercial community, upon the principle now recognised as part of the mercantile law of England and New York, that nothing but an actual interest in the witness (when not infamous) shall exclude him: the rights of a bona fide holder of negotiable paper without notice being protected upon the ground that any thing showing that the note was originally different from what it purporls to be as business paper, would exhibit a fraud, and be therefore inoperative as to him.

Rule absolute,

(a)

See Gest v. Espy, 2 Watts’s Rip, 268,reported after this decision was made.