All the cases of invalidation in the books, *5go on tliis ground, that the party is produced to overturn his own instrument; and if Air. Heister had subscribed the note, he certainly would bo no witness to gainsay it. But is not this the very matter in dispute ?
The opinions of judges ought unquestionably to weigh greatly with their successors ; but where the principles they lay down cannot be acceded to, a difference of sentiment must necessarily take place: so says Chief Justice Vaughan. It is agreed on all hands that the verdict here cannot be given in evidence in a civil action on the note. How then is Heister interested in the event of the prosecution ? In Rex v. Whiting. 1 Salk, 283, on an indictment for a cheat in procuring a note from II. by some slight, II. was not allowed as a witness, (Vid. Oas. Temp. Ilardwicke 359,) and the reason given was, that though it was no evidence in a subsequent civil suit, “we are sure to hear of it to influence the jury.” But why are we sure to hear of it ? It is the duty of the court to oppose themselves to such an attempt; they ought to repress every insinuation tendering to mislead the jury, and at least preserve them from an undue bias in the face of the whole country.
It seems to me, that the resolutions of the courts of this government in this particular, are founded on more substantial principles than those which have been cited by the defendant’s counsel from the English books, and conduce more to the interests of society. Above two centuries ago, few of the nobles or gentry of Great Britain could write their names, and hence sealing and delivery of deeds became necessary. The law changes with the times; and since men at present are expert in imitating the signature of others, it becomes expedient, in order to detect frauds of this nature, to admit the testimony of the parties, whose hands have been charged to be forged, and leave their credibility with the jury.
Shippen, J.I think the witness should be admitted, but not for the reasons assigned.
The cases in Hardress and Strange are express, that the evidence should be rejected. So are the compilers, Sergeant Hawkins and Lord Chief Baron Gilbert; and I know of no contradictory resolution in the English books. In all cases of forgery in England, where the party injured lias been allowed to swear, he has had a release to entitle him as a witness. Whether the policy of the law there is right or wrong I will not presume to determine. On the one hand it might be deemed dangerous in a commercial country, to allow the persons whose names are subscribed to notes, bills or receipts, to impeach or shake their credit; on the other hand, it might be *6thought necessary to call forward every species of evidence, to prevent the forgers of false papers from passing with impunity. If the adjudications in England rested merely on the ground, “ that a jury in a civil suit would most probably hear of the verdict,” I confess the reason assigned would appear to me but feeble. But other and better reasons may be assigned. The notoriety of the punishment in offences of this kind, would most probably prejudice the public mind with an impression that the instrument was false and counterfeit, and such impressions are not easily effaced. The difficulty of obtaining a fair trial under such circumstances is very obvious.
The principal however may appear doubtful. My ground of concurrence is, that as such evidence has heretofore been received in this government, on solemn argument, we should adhere to those resolutions, to preserve an uniformity of decision.
Yeates, J.It appears to me that the witness is competent.
The objection that the witness is brought to impeach his own instrument has been fully answered. It rests on a fallacy, and presupposes the note to have been signed by Heister, which is the very fact to be tried.
The exception taken on the ground ofinterestisnot well founded. Heister can derive no advantage certain from the judgment, nor can the verdict on the indictment be received in evidence in another suit. I agree that the general current of the English authorities, before the case of Abrahams v. Bunn, (4 Burr. 2252) has been adverse to such testimony; but I cannot bring myself to believe, that the reason given for the rejection is a sound one. The case of Abrahams v. Bunn, seems to have established a different doctrine, and confined the objection to the credibility of the witness.
Be this as it may, the decisions of our own courts have been uniformly different from the doctrine contended for by the defendant, and it is of the utmost consequence to the community, not to deviate from resolutions established on mature consideration. To the cases which have been thus determined, may be added that of República v. ThomasjWright, before the Chief Justice and]myself at Newtown, May assizes 1794, where on, an indictiment for uttering a forged indenture, Daniel Thomas, the party injured, was received as a witness on argument.
Under these determinations, I think the law is fully established in this state, and that the exception must be restrained to the credit of the witness, of which the jury should judge dispassionately under all the circumstances.