Jourdain v. Sherman

60 Mass. 139, 6 Allen 139

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1850
• Status: Published

Opinion

Shaw, C. J.

The court are of opinion, that the evidence offered to prove the signatures, and to take the case out of the operation of the statute of limitations, by proving the handwriting of the maker of the note and of the witness, was not competent. The rule seems to be well settled, that if a necessary witness becomes interested by the act of the law, as by becoming executor or administrator, secondary evidence is admissible; but if he becomes interested by the act of the party calling him, and he is objected to on the ground of such interest, the party calling him cannot use secondary evidence, which the law regards as inferior evidence. 1 Greenl. Ev. §§ 167,418. The rule, that where the interest is created by the party calling the witness, he is disqualified, is clearly and well stated, by Best, C. J., in the case of Hovill v. Stephenson, 5 Bing. 493; and the rule itself is recognized in the case of Amherst Bank v. Boot, 2 Met. 522. But the reason, on which this is founded, applies á fortiori to proofs of the attestation of a note, to bring it within the exception in the statute, in favor of attested notes. The statute requires, as a condition, that the suit shall be brought in the name of the original payee. The obvious purpose is, to secure to the defendant the benefit of any equitable defence, arising out of the original making of the note, tending to render it null or invalid, in whole or in part, and also to secure to him the reasonable chance of having the testimony of a witness who was present at the transaction, to establish any facts favorable to such a defence. The party calling the witness can with no propriety complain, that he is deprived of the testimony of such witness, the disqualification being occasioned by his own act. It is not enough to say, in answer, that he is a mere nominal party ; the statute makes him a necessary party, and no other person can maintain the action. If the attesting witness is the holder, he stands in the relation of the assignee of a chose in action, and must recover, if at all, in the name and upon the rights of the assignor.

Verdict set aside.