Trumbull,
The principal question in this case is, Whether Ebenezer and Atwater Townsend, the drawers of the bill in question, are admissible witnesses in an action by the plaintiffs as payees of the bill against the defendant as acceptor, to prove that it was executed on an usurious contract, and therefore is void in law.
The rule that no person can be permitted to give testimony to invalidate any instrument to which he has made himself a party by affixing his signature, in cases wherein he has no interest in the event of the suit on trial, was first adopted in the case of Walton v. Shelley, 1 Durnford & East 296., by Lord Mansfield, and the other judges of the King’s Bench. He states that "the rule is founded in public policy ; that there is a sound reason for it ; because every man, who is a party to an instrument gives a credit to it ; that it is of consequence to mankind, that no person should hang out false colours to deceive them, by first affixing his signature to a paper, and then afterwards giving testimony to invalidate it ; that it is emphatically right in case of notes, because in consequence of different statutes, two very hard cases have arisen ; first, with respect to a gaming note, which, though in possession of a bona fide purchaser without notice, is void ; and in the case of usury, a note given for an usurious consideration, though in the hands of a fair indorsee, is equally void ; and therefore, whenever a man signs these instruments, he is always understood to say, that to his knowledge there is no legal objection to them whatever.” He then quotes the maxim of the civil law, nemo suam allegans turpitudinem est audiendus, and applies it as conclusive on the present point. The other judges concurred, and established this as a general rule of law.
The English courts soon found the principle was laid down on too broad a scale, and narrowed it in its application, to negotiable instruments only. No new or additional reasons were ever adduced in its support. It was adhered to on the grounds stated by Lord Mansfield, and the authority of the decision in that case. But at length, the rule was exploded in the King’s Bench, and such a witness determined to be [266]*266admissible, unless interested in the event of the suit on trial. See Jordaine v. Lashbrooke, 7 Durnf. & East 601.
As the decisions of the highest court and ablest judges at Westminster-Hall have been thus directly contradictory, and as their principle (notwithstanding the dicta of several of the judges in Allen v. Holkins, 1 Day’s Cases in Error, p.18. adopting the rule as sound law, and the decision in Webb v. Danforth, p.301. denying its application as to facts subsequent to the execution of the instrument) has never till now come directly in question before the highest courts in this state, it is our duty to decide it according to the general rules and principles of law respecting admissibility of testimony ; and if the grounds and reasons in Walton v. Shelley are found to be fallacious, we cannot consider the case and its authority conclusive.
The first ground Lard Mansfield takes, is, that every person who signs an instrument, thereby gives it a credit, and can never be admitted to dispute its validity. Before we adopt this principle of universal exclusion and estoppel, we must enquire what credit each several party, by putting his signature upon a negotiable instrument, thereby gives to it, and what obligation he thereby incurs ; for each signer stands on a different ground.
The drawer of a bill or negotiable note, acknowledges himself indebted to the payee to the amount of the sum it contains, and engages to pay the damages, in case the bill shall be dishonoured, or the note uncollected, without the fault of the payee, or of those to whom it may be indorsed.
The indorser of a bill or note acknowledges his receipt of a valuable consideration, and contracts to pay the sum, in case it cannot be obtained of the drawer.
The acceptor acknowledges it to be duly drawn ; he is not admitted to deny the hand-writing of the drawer ; and he contracts to pay the sum according to its contents to the legal holder.
These are the rules and principles of common law, as adopted and sanctioned by the courts in this state.
The indorsee or holder of a negotiable security has nothing to do with the transaction between the original parties. See Jordaine v. Lashbrooke. Nor has the drawer or acceptor any thing more to do with the contracts between subsequent indorsers and indorsees. Each party is bound only [267]*267so far as his own obligation extends, and cannot be precluded from denying any fact not acknowledged by his signature. All these contracts are separate and independent. No party by his signature warrants the validity of any contract but his own, or gives any farther credit to the security, or is interested in the event of any suit on the several contracts of other parties, whose names may appear on the instrument. He warrants nothing farther with respect to the validity of the draft, he hangs out no false colours, and is not estopped by his signature from testifying to any facts respecting the instrument, or any legal objections within his knowledge.
The only fundamental principle of the common law, applicable to the present question, is this, that no man can be a witness in his own cause ; and this rule hath ever been considered as applicable to every case in which he is a party, or is interested, and to no others. It was formerly holden as well in the English courts as our own, that an interest in the question was a sufficient ground for excluding a witness. It is now settled law in both, that an interest in the event of the suit is the only ground on which he can be rejected ; and, that a mere interest in the question does not affect his competency, but his credit with the jury only. But this distinction was not fully settled at the time the case of Walton v. Shelley was tried. Justice Buller, though he concurred in the principle that no man can invalidate his own security, relied much in his argument on the fact that the witness was interested in the question, because the question put to him was upon the validity of the notes he had indorsed ; although he clearly was not interested in the event of the suit on trial, as it must be uncertain whether he would ever be subjected to a subsequent action on the instrument, was already liable on his signature, and could never give the verdict in evidence in his favour.
The maxim of the civil law, that no man is to be heard who alleges his own turpitude or crime, was never by any court or judge, before Lord Mansfield, applied to the inadmissibility of a witness, but only to the rights of the parties in a suit or action. No suitor ran support a claim, in which the ground or consideration is an unlawful act of his own ; nor can any defendant be heard on a defence, grounded on his own unlawful act. But an accomplice in a crime, a fraud, or any illegal transaction, was always an admissible, [268]*268witness, unless immediately interested in the suit. I may further observe, that the term, “ turpitude,” can with no propriety be applied to an act, not malum in se, but only malum prohibitum, by force of some statute, making it penal in some particular country, or jurisdiction.
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Trumbull,
The principal question in this case is, Whether Ebenezer and Atwater Townsend, the drawers of the bill in question, are admissible witnesses in an action by the plaintiffs as payees of the bill against the defendant as acceptor, to prove that it was executed on an usurious contract, and therefore is void in law.
The rule that no person can be permitted to give testimony to invalidate any instrument to which he has made himself a party by affixing his signature, in cases wherein he has no interest in the event of the suit on trial, was first adopted in the case of Walton v. Shelley, 1 Durnford & East 296., by Lord Mansfield, and the other judges of the King’s Bench. He states that "the rule is founded in public policy ; that there is a sound reason for it ; because every man, who is a party to an instrument gives a credit to it ; that it is of consequence to mankind, that no person should hang out false colours to deceive them, by first affixing his signature to a paper, and then afterwards giving testimony to invalidate it ; that it is emphatically right in case of notes, because in consequence of different statutes, two very hard cases have arisen ; first, with respect to a gaming note, which, though in possession of a bona fide purchaser without notice, is void ; and in the case of usury, a note given for an usurious consideration, though in the hands of a fair indorsee, is equally void ; and therefore, whenever a man signs these instruments, he is always understood to say, that to his knowledge there is no legal objection to them whatever.” He then quotes the maxim of the civil law, nemo suam allegans turpitudinem est audiendus, and applies it as conclusive on the present point. The other judges concurred, and established this as a general rule of law.
The English courts soon found the principle was laid down on too broad a scale, and narrowed it in its application, to negotiable instruments only. No new or additional reasons were ever adduced in its support. It was adhered to on the grounds stated by Lord Mansfield, and the authority of the decision in that case. But at length, the rule was exploded in the King’s Bench, and such a witness determined to be [266]*266admissible, unless interested in the event of the suit on trial. See Jordaine v. Lashbrooke, 7 Durnf. & East 601.
As the decisions of the highest court and ablest judges at Westminster-Hall have been thus directly contradictory, and as their principle (notwithstanding the dicta of several of the judges in Allen v. Holkins, 1 Day’s Cases in Error, p.18. adopting the rule as sound law, and the decision in Webb v. Danforth, p.301. denying its application as to facts subsequent to the execution of the instrument) has never till now come directly in question before the highest courts in this state, it is our duty to decide it according to the general rules and principles of law respecting admissibility of testimony ; and if the grounds and reasons in Walton v. Shelley are found to be fallacious, we cannot consider the case and its authority conclusive.
The first ground Lard Mansfield takes, is, that every person who signs an instrument, thereby gives it a credit, and can never be admitted to dispute its validity. Before we adopt this principle of universal exclusion and estoppel, we must enquire what credit each several party, by putting his signature upon a negotiable instrument, thereby gives to it, and what obligation he thereby incurs ; for each signer stands on a different ground.
The drawer of a bill or negotiable note, acknowledges himself indebted to the payee to the amount of the sum it contains, and engages to pay the damages, in case the bill shall be dishonoured, or the note uncollected, without the fault of the payee, or of those to whom it may be indorsed.
The indorser of a bill or note acknowledges his receipt of a valuable consideration, and contracts to pay the sum, in case it cannot be obtained of the drawer.
The acceptor acknowledges it to be duly drawn ; he is not admitted to deny the hand-writing of the drawer ; and he contracts to pay the sum according to its contents to the legal holder.
These are the rules and principles of common law, as adopted and sanctioned by the courts in this state.
The indorsee or holder of a negotiable security has nothing to do with the transaction between the original parties. See Jordaine v. Lashbrooke. Nor has the drawer or acceptor any thing more to do with the contracts between subsequent indorsers and indorsees. Each party is bound only [267]*267so far as his own obligation extends, and cannot be precluded from denying any fact not acknowledged by his signature. All these contracts are separate and independent. No party by his signature warrants the validity of any contract but his own, or gives any farther credit to the security, or is interested in the event of any suit on the several contracts of other parties, whose names may appear on the instrument. He warrants nothing farther with respect to the validity of the draft, he hangs out no false colours, and is not estopped by his signature from testifying to any facts respecting the instrument, or any legal objections within his knowledge.
The only fundamental principle of the common law, applicable to the present question, is this, that no man can be a witness in his own cause ; and this rule hath ever been considered as applicable to every case in which he is a party, or is interested, and to no others. It was formerly holden as well in the English courts as our own, that an interest in the question was a sufficient ground for excluding a witness. It is now settled law in both, that an interest in the event of the suit is the only ground on which he can be rejected ; and, that a mere interest in the question does not affect his competency, but his credit with the jury only. But this distinction was not fully settled at the time the case of Walton v. Shelley was tried. Justice Buller, though he concurred in the principle that no man can invalidate his own security, relied much in his argument on the fact that the witness was interested in the question, because the question put to him was upon the validity of the notes he had indorsed ; although he clearly was not interested in the event of the suit on trial, as it must be uncertain whether he would ever be subjected to a subsequent action on the instrument, was already liable on his signature, and could never give the verdict in evidence in his favour.
The maxim of the civil law, that no man is to be heard who alleges his own turpitude or crime, was never by any court or judge, before Lord Mansfield, applied to the inadmissibility of a witness, but only to the rights of the parties in a suit or action. No suitor ran support a claim, in which the ground or consideration is an unlawful act of his own ; nor can any defendant be heard on a defence, grounded on his own unlawful act. But an accomplice in a crime, a fraud, or any illegal transaction, was always an admissible, [268]*268witness, unless immediately interested in the suit. I may further observe, that the term, “ turpitude,” can with no propriety be applied to an act, not malum in se, but only malum prohibitum, by force of some statute, making it penal in some particular country, or jurisdiction.
In Jordaine v. Lashbrooke, Lord Kenyon says, " The rule contended for is this, whatever fraud may have been committed, if the party to the fraud can get on the instrument the name of the person, who may be the only witness to the transaction, he will stand entrenched within the forms of law, and impose silence on that only witness, though he be a person of unimpeachable character, and not interested in the cause.” This he denies to be law. Grose, Justice, says, "Let the plaintiff in this case resort to his indorser to recover back the consideration he gave for the bill.”
Indeed, if a man sell and indorse a note executed by an infant, or feme covert, and void at common law, or void by statute as being usurious, unstamped or a forgery, I see no legal defence he can set up against an action of assumpsit by the indorser, for the money paid on a consideration which has wholly failed. For that is not an action on the bill or note, but rests entirely on the ground that the note is void in law. If such an action can be supported, there is no hardship in the case of an innocent purchaser ; he has his remedy. If in any case he is deprived of every legal remedy, no court can have a right, in compassion to the hardship of his situation, to assist him in evading the law by excluding such witnesses, or evidence, as is admissible in all other cases.
The hardship upon the innocent indorsee, which seems so strongly to have influenced the mind of Lord Mansfield, is indeed no more than this ;—by the statutes to which he refers, all bills or notes, where the consideration is money lent on usury or for gaming, are declared void to all intents and purposes whatever ; and consequently, the indorsee, whenever he brings his suit on the note or bill itself, against the drawer, promissor, or acceptor, must fail of a recovery in that action. But he is not without remedy for, if a fair and bona fide purchaser without notice, he may recover of the indorser oil his indorsement. Bowyer v. Brampton, 2 Stra. 155.
In the case of Lowe and others against Waller, Doug. 708. in which all the former cases are well considered, Lord [269]*269Mansfield, himself says, “ It is better that the law should be as it is with respect to bills and notes, than other securities ; because they are generally payable in a short time, so that the indorsee has an early opportunity of recurring to the indorser, if he cannot recover on the bill.”
I am therefore of opinion that the witnesses offered are admissible, notwithstanding they have put their signature upon the bill.
But it is farther urged, that their testimony is irrelevant, and was properly rejected on that ground.
This depends entirely on the point, whether an innocent indorsee can recover in an action brought on an usurious bill, against the acceptor. This was the sole point in the case of Lowe and others against Waller ; in which case, after taking time to consider, the court unanimously decided, that a bill of exchange given upon an usurious consideration is void, even in the hands of an indorsee for valuable consideration without notice of the usury. And I hold this decision to be sound law, notwithstanding the extrajudicial opinions cited at the bar from Holt, Lord Raymond and Comyns.
On these grounds, I advise a new trial.