5 Mart. (N.S.) 139 | La. | 1826
delivered the opinion of the court. The defendant is sued on his promissory note, which has been endorsed by the payee, to the plaintiff. The answer contains an averment, that the note was given on a consideration which has failed: and that this defence may be well set up against the petitioner, because the payee was his agent, and took the note for his use and benefit.
In support of these allegations, the defendant offered at the trial, the payee, as a witness. He was objected to on two grounds; first, because he had been employed by the plaintiff as his attorney in this suit; and second, because he was endorser. The judge held the first objection to be a good one, and rejected him, to which opinion the defendant excepted.
I. The contemporaneous construction of the statute, which directs that attorneys shall not give evidence in any case in which they have been employed, was, that attorneys were placed under the same disabilities as parties. The motives which induced the legislature to pass such a law were supposed to be, that attorneys could not be safely intrusted to testify for their clients: that under the influence of
II. Nor do we think the circumstance of the witness being an endorser on the note, deprived the maker of his testimony. The rule relied on in support of the objection, is of modern date and not yet perfectly settled. Admitting it however in its whole extent, it does not reach this case, for the defendant did not introduce the witness to prove any thing by which an innocent endorsee could be injured, but to establish that the person by whom the suit is brought was in truth the payee, and
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that this case be remanded to the district court, with direction to the judge not to reject the payee and endorser of the note as a witness to prove that he acted as agent of the plaintiff, and that the note was given to him in that capacity. It is further ordered that the appellee pay the costs of this appeal.