Maynard v. Nekervis

• Decision Date: 04 August 1848
• Citation: 9 Pa. 81
• Parties: MAYNARD <I>v.</I> NEKERVIS.
• Court: Pennsylvania Supreme Court

9 Pa. 81

MAYNARD v. NEKERVIS.

Supreme Court of Pennsylvania.

August 2, 1848.

August 4, 1848.

Aug. 2.

IN error from the Common Pleas of Lycoming.

Maynard, for plaintiff in error.

Bellas, contrà, contended that the witness was interested.

Aug. 4. BELL, J.

Since Sweeny v. Allen, 1 Barr, 380, it is not to be doubted the evidence offered and rejected was pertinent, as, under the authority of that case, the plaintiff on the attachment-execution acquired a title to the debt in suit hostile to that of the plaintiff in the action, if the allegations of the defendant be true. But was Abrams a competent witness to prove them? Two objections are urged against his admissibility. Ferre, the other witness offered, shows him to be interested in the event of the suit; and second, that he is excluded by the rule that prohibits a party to a negotiable instrument from impeaching it, after it has been negotiated.

The answer to the first objection is, that the proffered evidence, taken together, shows that the interest of the witness is balanced. If by force of his testimony, the right of the attaching creditor to appropriate the debt due from Mr. Maynard be established, the witness will remain liable, as prior endorser, to Nekervis, the holder of the note. If, on the other hand, the latter should succeed in recovering the amount of the note in this action against the drawer, the witness will continue answerable to the attaching creditors. He therefore stands indifferent between the parties, so far as interest is involved.

The second objection admits also of easy answer. It is, undoubtedly, well settled in Pennsylvania, that a party to a bill or note strictly negotiable, and which has actually been negotiated, cannot be admitted to impeach it, in the hands of a bonâ fide holder, by anything which attended its inception, or attached upon it before it left the hands of the original parties; as, for example, that the contract was usurious, or that the consideration failed. He may testify to facts which occurred subsequently to the negotiation of the instrument, affecting it in the hands of the holder, and tending to disprove his right to recover upon it: Parke v. Smith, 4 W. & S. 289; Appleton v. Donaldson, 3 Barr, 381; Gilpin v. Howell, 5 Barr, 52-3. In the present instance, the defendant does not propose to go even thus far. He does not ask to attack the note to its destruction, but simply to show that the ownership of it is in another than the plaintiff, in order...