dissenting:
In the decision made in this case I fully concur, but do not agree to those parts of the opinions delivered which declare, “ from a re- “ view of the statutes cited and being in pari materia, they should be “ construed together: the effect is clearly this — that upon the oath be- “ ing taken in compliance with the requisites of the statute and by il proper parties, the onus of proof is thrown upon plaintiff, and he “ is bound to prove the consideration of the instrument upon which “ suit is brought.” And in the opinion of the Chief Justice, “ We “ are warranted therefore I think in the conclusion, that these provi- “ sions of this statute only apply as between the immediate parties “ to the transaotjpn, or such others as have taken these instruments “ alter due, or have not acted in good faith or with due circumspection “ in cases attended with suspicion.” Whilst the decision of the Court exempts.bills of exchange and promissory notes in the hands of an innocent holder from the effect of the provision of the statute cited, this clause declares that all other instruments are subject to it, and that in cáse of suits brought upon them where an affidavit denying the consideration is filed, the burthen of proof is thrown upon plaintiff to establish it. I greatly regret that an expression of opinion upon this point was deemed necessary, as it did not occur in the case, had not been argued and was not presented by the record. It has been made however, and imposes upon me the duty of expressing my own views upon the subject, though reluctant to declare a dissent from the opinion of a majority of the Court. This is rendered the more necessary from the fact that the construction given, if persevered in, will lead in my opinion to very great embarrassment in practice, if not to serious injury and injustice to parties.
The position is that the plea of no consideration, verified by affidavit, throws the burthen of proof on plaintiff. That the plea of it*105self has not this effect is evident, being “ a mere statement of de. fendant’s ground of defence.” 8 Blacks. Com. 225.
Has the plea with the affidavit this effect? The question may in some degree be answered by inquiring into the purposes and objects for which affidavits are used when attached to pleas and other proceedings.
“ Affidavits are usually for certifying the service of process or other matter touching the proceedings in a cause.” 1 Jacob’s Law Diet. 64.
Also, by adverting to cases of pleas, to which affidavits are required by law.
Dilatory pleas are required to be under oath by statute, so also, pleas, puis darrien continuance. 1 Chitty, 452-8 — 638.
An oath is required “ to prove the truth thereof, or show some probable matter to the Court, to induce them to believe that the fact of such dilatory plea is true.” Ibid, 452. _ ,
It is no where held or even intimated, that in any of these pleas so supported by affidavit, the burthen of proof of the matter pleaded* is thrown on the plaintiff.
To give the plea and affidavit the effect asserted would be to make them more than proof; by throwing the proof on the other side they are in this respect conclusive until rebutted by stronger testimony. Now I cannot find that the voluntary affidavit of a defendant is any where, in any 'of the books regarded as evidence, mijch less as conclusive.
“ The plaintiff or defendant may take affidavit, yet it will not be “ admitted in evidence at the trial, but only on motion.” 1 Lilly, 44. 1 Jacob’s Law Diet. 64.
“ It is undoubtedly a sound rule, which ought never to he violated, “ that no man can be a witness in his oum cause. The affidavit of a K party is received on many incidental questions addressed to the Court, “ and do not effect the issue to he tried hy the jury. The testimony “ which establishes the loss of a paper is addressed to the Court, and “ does'not relate to the contents of the paper. It.is a fact which may “ be important, as letting in the party to prove the justice oí the “ cause, but does not itself prove any thing in the cause,” Ch. Just. Marshal, in Taylor vs. Riggs, 1 Peters, 597.
“ The general rule is that a party to the record in a civil suit can- “ not be a witness either for himself or for a co-suitor in the cause.” Greenleaf, 378.
*106“ But though in criminal cases the exceptions are few indeed, in “ which a party'interested may not be a witness, in' civil, cases there “ is harály at common law an instance where the case is so circum- “ stanced that he may, and this upon clear reasons operating such ex* “ elusion. Ah universal 'exclusion, where no line short of this could “ have been drawn, preserves infirmity from . a snare, and integrity “ from suspicion and keeps the current of evidence thus far at least, “clear and uninfected.” 1 Gilb. Ev. by Loft. 223 — 224.
If the defendant is permitted to make evidence in his own cause, let, the privilege be mutual, and extended to .plaintiff, and let both be examined as witnesses. , ' ■ ‘
Whilst no authority can be found for making the affidavit of the party, evidence* for him on a, trial before a jury, the 3aw.is'well settled, that the. affidavit of defendant is evidence against' him. 2 Starkie’s Ev. 21. ’ ' /
•It may be regarded as, established, ! think, that an affidavit'attached ^to a pleads not evidence, and cannot be read to the jury. Its only effect then, according to the authorities, would seem to be that “ of certifying or proving the truth thereof to the Court, ’to induce tíiem to believe the fact of the plea to be true.” - , •
I have thus far consideréd the question on general principles and the authorities bearing upon the point. It is now proper to advert to the statute itself, to ascertain the design of the Legislature in passing the law which is the subject of consideration. ^
“ Three points are tó be considered in the construction of all reme - “dial statutes, tKe old law, the mischiéf and the remedy; that'is how “ the common law stood at the making of the act, what the mischief “ was for which the Common Law did not provide, and what remedy “ the Legislature provided tó cure the mischief; and it is the b'usi- “ ness of the judges so to construe the act as to suppress the mischief “ and advance the remedy.” 1 Blacks. . Com.- 87. 1 Rent, 464.
First let us4e'e what the common law. was previous to the passage of this statute. “ Inadequacy of consideration in sealed instruments “ could not be impeached or inquired into at Law, for every bond “ from the solemnity of the instrument carries internal evidence of a “ good consideration.” 2 Blacks. 445 and notes. • ,
“Bills of exchange and promissory notes, partake also, of\ this pri- “ ilege ; hence it was unnecessary to establish that a promissory nóte “ was given for a consideration, and the burthen of proof rested on “ the other party to establish the contrary, and to rebut the presump. *107“•tion of validity and value raised by the law for the protection and “ support of negotiable- paper,” 2 Blacks. 446. Story on prom, notes, 197, 2Q7-8, Sec. 181. '
Contracts in writing not under seal had not this‘privilege, and in reference to them, consideration was required to be proved by plaintiff. 2 Black,'446, n. 7 T. R. 360.
The mischief then was, first,the difierence prevailing between writings with and without seals, which by the advance of civilization had become more in name than, reality. , Secondly, the frequent contesting of the consideration of written instruments on insufficient grounds. Thirdly, that the consideration of sealed writings could not be inquired into. .
The remedy was 1st, to put all written instruments on the same footing, by giving to all the force and effect of bonds and instruments under seal; and secondly, to allow them to be contested, only 'by affidavit; hence it was declared not necessary for the plaintiff to prove “ the consideration for which any bond, note or .other instrument of writing was given, unless the same shall be denied by plea put in and filed under oath.” Now of this it may be premised that the statute does not, say that plaintiff shall prove the consideration, if it is1 denied by defendant; which would have left no room for construction, being a clear and decided expression of the legislative will; but the expression is “it shall not be'necesary unless denied,” which is tantamount to an expression merely, that if the defendant do not deny the consideration on oath, it shall riot be. necessary for plaintiff to prove it, but shall, be taken as proved; and if denied by affidavit, it shall be considered as put in issue, to be tried according to the rules pf law governing in such cases. ,
The issue-is to be proved by the party raising it; nor; is it an answer to say that defendant is not required to prove a nagative, and that this plea is of this character. It is not every negative a party is relieved from proving, and I apprehend this issue’ is of that character. 4 Mass. 349. 4 Pick. 174. , "
By this construction according to my view, the mischief, in the mind of the Legislature,.is fully avoided and the remedy advanced.By it uniformity in these instrUriients is effected, the verity -attached from time immemorial to sealed instruments as the deliberate and solemn act of the parties is preserved, and they at the same time are. not relieved from a wholesome, and proper enquiry on a proper show-ingby defendant of the want of consideration. By it a wise and *108beneficial operation is given to the Statute, and every reasonable design of the Legislature is accomplished. But' suppose the other construction tq prevail, and the consideration is taken as disproved, so as to throw the burthen upon plaintiff; is it not perceived that the whole force and character of'the instrument is at the mercy of one of the parties, and that party by his own solemn act, and every rule of right and propriety, estopped from making such a defence. ;If this rule is to prevail, there can be no farther use fon a bond, note or other obligation, hitherto adopted'as the means of terminating a difficulty or dispute by some solepin act, having an admitted legal sanction. Is it not seen too that this rule will be highly injurious in case of notes, bills of exchange, bonds and other sealed instruments, which by the consent of almost jhe whole civilized world, from their very structure import a verity, and are regarded as made on consideration ; and with what, propriety can it be supposed that the Legislature,in an act affirming the force an'd effect of these instruments, could have designed a provision by implication aimed at their vitality, and calculated inore than all others to destroy, their efficacy; ■ -
If it be true, as asserted by the Court in a rule of construction appealed to by them, “ that it is not to be. supposed that the Legislature “ intended any innovation of -the common law, further than the case absolutely requiredthen I think we may safely conclude, that the construction asserted is not the correct one. *•
There would be “ an innovation not absolutely required,” in my opinion, by allowing the defendant to make evidence for himself, though an exparte affidavit, in violation of all principle, by throwing the proof from the shoulders of defendant on those of plaintiff, of an issue raised and presented by himself, and a further most injurious innovation by destroying the verity -of sealed instruments and other writings. Such a rule, in my opinion, would create a greater mischief than that which the statute was designed to 'remedy. And its consequences are not tq be confined to this Statute. Complainants file an affidavit to their bills in chancery, defendants- to their plea to an application, to foreclose mortgages at law; under the law for the trial of the right of property, plaintiff files his affidavit, and other instances not on our statute book. Are these also, to be embraced by the same construction ? - . ,
It will not do to say that an answer in' Chancery bears • an analogy to the present case, since defendant is called- on by plaintiff to give his testimony, and thus njakes the answer evidence against him. Greenleaf’s Ev. 897.
*109I shall conclude my views of this subject by referring to other rules of construction pertinent to it, and which ought to have their bearing in its consideration.
“ Thus the real intention when accurately ascertained, will al- “ ways prevail over the literal sense of terms, and the reason and in- “ tention of the law giver will control the strict letter of the law, “ when the latter would lead to palpable injustice, contradiction and absurdity.” “ When the words are not explicit, the intention is to “ be collected from the context, from the occasion and" necessity of the law, from the mischief félt and the remedy in view; and the in- “ tention is to be taken according to what is consonant to reason and “ good discretion.” Plowden, 205. 1 Kent’s Com. 462.
“ Where fundamental principles are overthrown, when the gener- “ al system of the laws is departed from, the legislative intention must .“be expressed with irresistible clearness, to induce a Court of Justice to suppose a design to effect.such objects.” 2 Cranch, ,358. 1 Cond. R. 421.
It will be no answer to say that a similar provision, and the same words are used as to the denial of the execution of a bond. To this it may be replied that a' different rule prevailing as to it, á different construction of the statute is necessary. A plea of non est fclctum at common law, always put the proof of the signature on plaintiff, whereas the consideration of bonds and .notes was never required to be proved by plaintiff nor allowed to be.questioned from the fact, that the party having made a solemn act of such character, was estopped to deny its validity. ,
. “ It is by no means a correct rule of interpretation, to construe the “ same word in the same sense, wherever it occurs in the same in- “ strument. It was very justly observed by Ch. Jus. Marshall in “ the Cherokee Nation vs. State of Georgia, that it has been said, “ that the same words have not necessarily the same meaning attach- “ ed to them, when found in different parts .of the same instrument. “ Their meaning is controlled by the contract.” 1 Story’s Com. Const. 440. 5 Peters, 119.