#### *Joseph Williams vs. N G. W. Walker et al. A. P. Aldrich vs. William Nimmons et al.*

Where a party, *in*order *to*make out his title, is compelled, by the rules of evidence, to call the subscribing witness to an instrument, and his testi-, mony tends to invalidate the instrument, the party calling him may impeacly his credit.

The plaintiff to a bill of interpleader, should not only offer, by his bill, to bring the fund into court, but should obtain an order to that effect, and comply with it before proceeding with the cause, (a)

*Before*Johnston, Ch. *at Barnwell,*

*February,*1846.

The complainant in the case first stated, filed his bill against the defendant, Walker, sheriff of Barnwell district, A. F. Al-drich, assignee of Allen M. Odum, and others, creditors of George R. Odum, praying an injunction to restrain the defendant, Walker, from selling certain slaves which had been levied on as the property of George R. Odum, under executions. It appeared that in March, 1843, Allen'M. Odum assigned to A. P. Aldrich a mortgage of the slaves in question^ in trust, for the payment of certain debts. The mortgage was executed by George R. Odum, and bore date the 9th March; 1842. John Matheney was the subscribing witness thereto. The slaves were sold by the assignee under the mortgage, in April, 1843, and the complainant claimed under a purchaser at the sale, he having bought the purchaser’s interest at sheriff’s sale. The several executions against George R. Odum, under which the levies were made, were lodged between the 18th April and the 15th November, 1842.

The bill in the case of *A. P. Aldrich vs. Wm. Nimmons et al.*was filed by the assignee of the mortgage, praying that the several claimants of the fund in his hands, arising from the sales of the mortgaged property, might interplead.

At the trial of the case first stated, the complainant offered to prove the mortgage from George R. to Allen M. Odum, by a witness who was not the subscribing witness thereto. This was *292objected to, and the objection was sustained. John Matheney, 1 the subscribing witness, was then sworn for the complainant, 1 He proved the execution of the mortgage, and testified that it I was *ante-áaXeA*; that it was executed and delivered in January, 1843. Z. G. Graham was then offered as a witness for com-1 plainaut, to impeach the credit of Matheney. This testimony j was objected to, and the objection was sustained.

Many other matters were contained in the pleadings and the evidence, but they are not material to the questions, in reference to which, alone, the case is reported.

*Per Curiam.*On hearing the bill and answers, exhibits, evidence and argument, it is ordered and decreed, that the injunction heretofore granted in this case, be dissolved. The other questions and matters in the case, reserved for further hearing.

The complainant appealed, on the following grounds :

1. Because, under the circumstances of this case, the eom-plaiuant ought to be permitted to impeach the credit of the subscribing witness to the mortgage from George R. Odum to Allen M. Odum, by evidence of general character.-

2. Because the complainant having purchased the slaves in question, at public auction, for a full and fair price, without notice of any lien or claim on the part of the creditors of George R. Odum — and the price so paid by. him being in the hands of a party defendant in the cause, not in his own right, but as a trustee for whoever may be entitled to the same, and subject to the order of court, the complainant has an equitable right to have the consideration money paid by him as aforesaid, applied to the extinguishment of the said lien *fro*tanto, and thereby quiet his possession of the slaves in question.

Patterson, for the appellant.

Bellinger, contra.

(a)

*Vide*Drewry on Injunctions, 324-5; 36 Law Lib. 215.

Curia, per Dunkin, Ch.

The first ground of appeal arises out of the refusal to admit testimony impeaching the general character of the witness, John Matheney.

In tracing the complainant’s title under the sheriff, it became necessary for him to prove the mortgage from George R. Odum to Allen M. Odum, purporting to have been executed and delivered on the 9th March, 1842. Matheney was the subscribing witness. The complainant’s solicitor stated to the court, that the character of the witness was such as not to entitle him to *293credit, and proposed to prove the deed by other testimony. This was objected to by the defendant’s solicitor, on the ground that the subscribing witness was in court, and was the highest evidence. The objection was sustained by the court. Matheney was then put-on the stand for the complainant, and testified that the mortgage was executed and delivered at a subsequent period from the date thereof. The complainant thereupon tendered testimony to impeach his general character. The court ruled the testimony to be inadmissible, on the ground that a party should not be permitted to repudiate his own witness.

Although the determination of the case does not depend on the question thus submitted, it is deemed proper to express some of the views entertained by a majority of the court on this subject. There is no doubt about the general rule, or the propriety of it. But when a witness to a paper is called on to prove it, and his") testimony tends to invalidate the instrument, such testimony is ] necessarily received with anxious jealousy. In *Howard vs*. *Brathwaite,*1 Ves. *&*Bea. 208, Lord Eldon reports Lord Mansfield to have “often said, that he would hear such witnesses, but would give no credit to them; and that Lord Kenyon followed him in that.” Lord Eldon thought that “ if they were heard, their credit should be duly examined ; but their testimony is to be received,” says he, “ with all the jealousy, necessarily, for the safety of mankind, attaching to a man who, upon his oath, asserts that to be false, which he has, by his solemn act, attested as true.” This language was used in reference to the testimony of a subscribing witness to a will, who impeached the sanity of the testator, about which he should have been well assured, before he attested the act. Certainly, such testimony might,., or might not, be less open to animadversion when it relates to the date of the instrument.

But as a general rule, the subscribing witness must be prQÍ r duced. The inquiry is then presented, whether the party thus compelled to produce the subscribing witness, can, in no case, impeach his credit by proof of his general character. It is a familiar maxim, that where the reason ceases, the rule is inapplicable. No man should be permitted to attack a witness<whoml he has himself adduced to sustain his cause. But in a case \ like that under consideration, he may well be regarded as a wit- *J*ness of the law, rather than of,the .party. The complainant' was no party to the original mortgage, whose authenticity it be*294came necessary to establish. In 2 Ev. Poth. 266, a doubt is expressed whether the general rule, thus restricting the party who calls a witness, should extend to what ^re called *instrumental*witnesses ; and the doubt is repeatedJjy Professor Green-leaf in his treatise on Evidence, § 443. In Gresley’s Eq. Ev. 119, it is said that, even in collateral issues, the subscribing witness to a deed must be produced, if he can be produced, and is capable of being examined. He cites the language of Lord Ellenborough in *Rex vs.*Harringworth, 4 M. *&*S. 350. “The Iparty who would prove'the execution of any instrument, that is attested, must lay the ground work by calling the subscribing witness to prove it.” “ His testimony, indeed,” he continues *“*is not conclusive, for he may be of such a description as to be *un^deserving*of credit, and *then the party may go onto prove him*' such, *and may call other witnesses to prove the*execution.” “ The only question is,” says he, “ whether the parties, who seek to prove the execution of this indenture, must not make their way, to what may be called secondary proof, through the medium of those witnesses who^are the plighted witnesses to the transaction, by first disposing of their testimony.” This, it appears to the court, is the true distinction, and that the complainant should, under the circumstances, have been permitted, in thef language of Lord Ellenborough, “ to shew that the subscribing witness was undeserving of credit.” But we regard the other testimony in the cause, independent of Matheney’s, as entirely satisfactory to prove that the mortgage was *ante-daXed,*and would not, therefore, on that ground, disturb the decree of the Chancellor.

But the Chancellor, understanding that the complainant’s case was rested entirely on the solution of this question, examined no further, but dismissed the bill. It is insisted in this court, that even conceding the ante-dating of the mortgage from George to Allen Odum, the complainant had other equities on which he was entitled to be heard, and which, it is admitted, were not considered by the Chancellor. The cause will be sent back for that purpose.

Some irregularity seems to prevail in regard to granting injunctions on interpleading suits, which it is thought a fit occasion to notice and correct. The complainant, in a bill of inter-pleader, should not only offer, by his bill, to pay the fund into court, but he should take care to have an order passed to that *295effect, if he desires to protect himself from the liability for interest on the fund while it is in his possession. The rule is very explicit and well settled, that on a bill of interpleader, the plaintiff “ must bring the money into court, before he takes any step in the cause 1 Smith Ch. Pr. 476. And in *Pauli vs. Von Melle,*8 Simons, 327, an order for an injunction in an inter-pleading suit- was declared to be irregular, *“*if it did not make the issuing of the injunction dependent on the payment of the money into court.”

From the proceedings before us, it does not appear that any order has been heretofore passed for the payment into court of the funds in the hands of the complainant in the bill of inter-pleader, and provision to that effect will be now made.

It is ordered and decreed, that the injunction heretofore granted, be continued until the hearing on the merits, or the further order of the court.

It is further ordered, that the complainant in the bill of in-terpleader, pay into the court the money in his hands, accprding to the prayer of his bill, and that the commissioner report to the court, or one of the Chancellors, a proper mode of investing the same, pending the litigation.

Johnson and Johnston, CC. concurred.