People v. Dean , 6 Cow. 27 ( 1826 )

Curia, per

Savage, Ch. Justice.

There has been a difference upon the point presented by this case between the English and American decisions ; the former holding that the party whose name has been forged to an instrument, cannot be a witness against the offender; and the latter that he may. Although this court, in 1794, decided according to the English cases ; yet the reasoning of Kent, Ch. J. in The People v. Howell, has generally been considered by the profession as satisfactory ; and it has, as far as we can learn, been followed in practice, at the courts of oyer and terminer. Besides, if we pass from the conflict of decision and practice on the subject, we find a principle, long and well established, and so fully embracing the point, that the English judges, when this question has come before them, acknowledge their own course to be a mere anomaly in the law of evidence. (4 East, 582.) That principle is, that whenever the witness cannot possibly derive any benefit or sustain any loss from the event of the cause, he is competent. To this rule, even in England, the point in question forms a solitary exception, for which no reason can be given. ( Vid. 4 East, 582.) Why every other case should have been brought to that test, and this alone form an exception, is not explained, except upon the foundation of precedent. Yet the precedents are not so old as to deny us the power of seeing how they arose ; or that their reason and foundation have been overruled.

These passing away, it is certainly warrantable to dismiss the superstructure with them.

We are accordingly of opinion that the court below decided correctly.

The prisoner was sentenced to the Auburn state prison for 10 year.

Rule accordingly, ^(a)

(a) The English doctrine seems to prevail in Vermont, (State v. A. W. 1 Tyler, 260.) and Connecticut, (State v. Brunson, 1 Root, 307; id. v. Howard, id. 308; id. v. Blodgel, id. 534.)