The opinion of the court was delivered
by Thompson, J.The material point of inquiry in this case is whether M. C. Clarkson, the drawer of the note, on which this suit was brought, was a competent witness for the indorsers. He was not objectionable on the score of interest, for he was released by them, and a failure to recover against them would be no bar to a suit by the bank against him. The record would not be conclusive in such a contest.
Was he incompetent on the score of public policy? The answer to this question is to be found in the nature of the evidence which was proposed to be given by him. It was a direct attack upon the validity of the note itself by an attempt to show an equity existing against it, at its date, sufficient in part, if not in whole, to defeat it, and equivalent to want of consideration; that it was received by the bank under an arrangement made ten years before, to apply the proceeds of certain collaterals to the extinguishment of an indebtedness to it by the drawer, for the remnant of which indebtedness the note in Suit was alleged to be brought. The drawer was clearly incompetent to prove this.
The case of Walton v. Shelly, 1 Term Reps. 276, has been followed by the court in a modified form, as a rule of the law *123merchant. Since the case of Pleasants v. Pemberton, 2 Dall. 196, down to the present day. “ The rule,” said Mr. Justice Knox, in Pennypacker v. Umberger, 10 Har. 492, “ is firmly established in Pennsylvania that a party to a note or bill that is strictly negotiable, and has been actually negotiated, cannot be a witness to impeach it.” Here the offer was not only to prove by the drawer that the note was not negotiated in the actual course of business, but the existence of an equity sufficient to extinguish it at the moment of its execution. This would flatly contravene the rule, and the evidence was rightly rejected. The evidence being properly excluded, the learned judge was right in charging “that there-being no evidence in, the case upon which the jury could find for the defendants, the verdict should be for the plaintiffs.” This disposes- of the whole case against the plaintiffs in error.
Judgment affirmed.