Hubbly v. Brown & Nichols.

Spencer, J. delivered the opinion of the Court. The questions in this case are, 1. Whether Rufus Clapp was a competent witness for the defendants, without a. release ? 2. What is the effect of his testimony .if competent ? The case is silent as to the fact, whether this was an accommodation note, or not; if it was, then,- on the authority of the case of Jones v. Brooke, (4 Term Rep. 466.) the objection to the witness was well founded; because., if the defendants were rendered liable in this, action, they, would have a remedy over against the maker, of the note, not only for the principal and interest, but for the costs; and persons liable to the costs of an action, have an immediate interest in the event, and are, therefore, not competent,. (Philips' Ev. 45. 1 Binney, 444. 11 Johns. Rep. 57.) As the case stands, we cannot intend this to be an accommodation note. It is difficult, then, to see what interest Clapp had ; he was answerable on his note, whether the plaintiff succeeded in the suit or failed ; and in either event, no additional burthen was thrown on him. In the case of Skelding Haight v. Warren, (15 Johns. Rep. 275.) though-the point was not elaborately discussed, we held, that the maker of a note stood indifferent between the parties, who were similarly situated with the parties here. If Malcolm is to be viewed as the beneficial.holder of. the note, at the time he received. a consideration, for waiting 90 days longer without suing, then, it appears to me, the defendants were discharged. The evidence warranted the [73] conclusion, that Malcolm, owned the note; he had possession of it, and undertook to control its payment. If the fact was otherwise, it was extremely easy for the plaintiff to prove it. He might show when he acquired an interest in the note, or otherwise rebut the presumption, that Malcolm was the real owner of it. This case does not involve the consideration of the point on which the Court of Chancery, and this Court have entertained, seemingly, a contrary doctrine. The Chancellor admits, that the doctrine is, that the surety is bound by the terms of his contract; and if the creditor, by agreement with the principal debtor, without the concurrence of the surety, varies these terms by enlarging the time of performance, the surety is discharged, for he is in-, jured, and his risk is increased. (2 Johns. Ch. Rep. 560, 561.) We have regarded the endorser as in the nature of a surety, and the maker of a note as the principal debtor. In the case of English v, Darley, (2 Bos. & Pull. 61.) the very point was decided, and Lord Eldon’s opinion is very full in illustrating the principles on which the decision is placed. Judgment of nonsuit.