The obligation of Col-ling to produce the books, upon the duces tecum, depends on the question, whether they were in his possession and and under his control. He was the mere clerk of the plaintiffs; and, in that character, had no such property, in, or possession of the books, as imposed the obligation to bring them. They were under the control of the cashier, who might forbid their removal, or place them beyond the reach of the witness.
It does not appear that the general direction from the cashier, and the custom of the bank, wore the best evidence in the power of the defendant. The books and memoranda themselves might have been produced on notice for that purpose to the plaintiffs. Had this notice been given, and not complied with, I incline to think the inferior evidence would have been, prima facie, sufficient. It would then be fair to presume, that the witness could not state the contents of the books in relation to this note, because he had been careful not to know them, or refresh his meitiory on the subject. As the matter stood, I think the Judge decided correctly.
Was Jones, the maker, a competent witness 1 It is contended that he was interested in the costs. Originally, both the witness and defendant were endorsers and sureties on *159paper of Moryan, upon whose failure, they substituted the note in question, agreeing to share the loss equally between them. The witness, it seems, had fulfilled his part of the arrangement, or nearly so; and this suit was brought at his instance, arid on his undertaking to indemnify the plaintiffs against the costs, to collect the payment of the residue from the defendant. Admitting Jones’ liability to the defendant for a part of these costs, he is, on the other-hand, liable to the bank for the whole, in case of their failure to collect of the defendant. His interest is, therefore, neutralized.
Jones was, then, a competent witness, unless he is to be excluded on the ground of policy. Before Walton v. Shelly, (1 T. R. 296, A. D. 1786,) the rule and its exceptions were, that every person was a competent witness who was not interested in the event of the cause, rendered infamous by crime, or excluded for infidelity. By that case, a new exception was introduced, “ that no party, who has signed a paper or deed, shall ever be permitted to give testimony to invalidate that instrument, which he hath so signed.” This exception, continued a prevailing one, in England, though not universally so, till it was overruled in Jordaine v. Lashbrooke, (7 T. R. 597, 601, A. D. 1798;) where the reasoning in Walton v. Shelly, was considered, and the ancient rule re-established; Ashurst, J. still adhering to the opinion he had given in Walton v. Shelly. He was the only J udge on the bench, in 1793, who had also been there in 1786. The doctrine advanced by Ld. Kenyon, in the latter case, is, “ that when a witness is infamous, and the record of his conviction is produced, or when he is interested in the event of the cause, he cannot be received: but to carry the rule beyond that, would be extending it farther than policy, morality, or the interests of the- public require.” This has ever since been the law in England. But this Court, in Winton v. Saidler, (3 John. Cas. 185, A. D. 1802,) adopted Walton v. Shelly, which has also been adopted in most of the United States. In Winton v. Saidler, the question is ably discussed by the Judges, who delivered their opinions ; and the decision made by a bare majority of the Court.
*160Without intending to enter at large into the arguments on this subject, I would barely remark, that those who have maintained the doctrines lying on each side of the question, have been influenced by the arguments of Ld.
Mansfield, on the one hand, and Ld. Kenyon on the other. The former seems to found his argument on a maxim of the civil law: “ nemo allegans suam turpitudinem est audiendusapplying it in this way, every person who has signed an instrument, has thereby declared that he knows of no objection to it; and should not afterwards be permitted to contradict this declaration. The allegation of the frauds which might thus be practiced, is met by Ld. Kenyon, with supposing that greater ones may be practiced on parties and strangers, by getting the names of all who may be witnesses on fraudulent paper; and then the guilty will stand entrenched in the forms of law. Supposing the danger which we are to apprehend on the score of fraud, to be equally great on the one hand as the other, I can see no good reason for refusing to parties who may be innocent, the benefit of disclosing the whole truth. I cannot believe that justice will be promoted or the morals of the community improved, by permitting those guilty of frauds, to protect themselves from the testimony of the only witnesses who are supposed to have a knowledge of the facts.
This Court has been gradually receding from the decision in Walton v. Shelly ; and I am free to declare, that I entirely deny the propriety of the exception adopted in that case; and consider the old rule, with its ancient exceptions, the only correct one.(a) That rule is, that every person, not interested in the event of the suit, nor incapacitated by his religious tenets, nor by the conviction of an infamous crime, is a competent witness. All other circumstances, affect his credit only.
In my opinion, the Judge erred in excluding the wit ness; and a new trial should be granted on that ground, with costs, to abide the event of the suit.
New trial granted.
See Stafford v. Rice, ante, 23.