Barretto v. Snowden

By the Court, Savage, Ch. J. This case presents two questions: 1st. Was Corp a competent witness 1 2d. Was the transaction usurious 1 1st. The endorser is a competent witness, unless excluded on the ground of interest. The interest to exclude a witness must be direct and certain; or, the verdict must be evidence for or against him. It is stated to be the rule in England, that in an action by the endorsee against the drawee of a bill, a prior endorser is a competent witness for the plaintiff or defendant. Chitty on Bills, 531, 2, and cases there cited. This was so decided by Lord Ellenborougb, in Stevens v. Lynch, 2 Campb. 232. It was contended that the endorser was interested to support the action—as, if the plaintiff succeeded, the bill would be extinguished; but if he failed, he might still sue the first endorser. This was answered by saying that it did not appear that an action could be main [185] iained against the endorser; there was no direct evidence of the dishonor of the bill, and the witness was offered to prove a promise. The witness was admitted, Lord Ellenborough saying that the endorser had not such a direct interest as to render him incompetent. Humphrey v. Moxom, Peake’s N. P. 52, was an action by the endorsee of a bill of exchange against the acceptor. The drawer was called as a witness; it appeared that notice had been given to him the day after the bill became due of its having been dishonored. Lord Kenyon was inclined to think the objection to his competency good, because, by proving the bill paid, he would eventually discharge himself; but doubting whether the notice was in season, the witness was received subject to the opinion of the court: but I do not find that any motion was made for a new trial. In the case of The Juniata Bank v. Brown, 5 Serg. & Rawle, 232, the supreme court of Pennsylvania held an endorser admissible; but they put it on the ground that as endorser he was discharged. Rice v. Stearn, 3 Mass. R. 225, was an action on an endorsed note. The endorser had ordered the note to be paid to the plaintiff at his own risk. Parsons, Ch. J. says : if, notwithstanding this stipulation, the endorser is answerable if the maker do not pay the note, then the witness (the endorser) is interested, and ought not to have been sworn. The court, however, held that he was not liable upon this special endorsement, and therefore a competent witness. The same point had been so decided by that court in Barnes v. Ball, 1 Mass. R. 73. In our own reports, there is but little to be found on the point. In Herrick v. Whitney, 15 Johns. R. 240, the payee of a note payable to bearer was admitted as a witness for the plaintiff to prove the execution of the note, and testified that he had no interest, having transferred the note to one Cummings at his risk as to the solvency of the maker; but the court said, the witness was responsible upon an implied warranty that the note was not forged : he therefore had a direct interest in establishing the fact which he was called to prove; [186] for by obtaining a verdict for the plaintiff on the plea of nonassumpsit5 he protected himself against his own warranty. The case of Shaver v. Ehle, 16 Johns. R. 201, is not disting'hshable from the preceding case, and was decided on (he same principle. In Tuthill v. Davis, 20 Johns. R. 285, the endorser was introduced by the defendant to prove usury, and the court say he was properly admitted. These cases do not touch the question of interest. Lord Kenyon and Lord Ellen-borough both seem to admit that if the endorser had become legally fixed with the demand, he would be interested ; and the supreme court of Pennsylvania and Massachusetts assume that fact, and say he is incompetent because liable to pay the note. If we apply the rule that an interest to disqualify a witness must be direct and certain, then, according to the cases above referred to, to exclude an endorser it should be shewn that he had become liable by having received due notice of the dishonor of the note. No evidence of that kind was offered; and the note being admitted, the witness was not offered to prove the note, and thus discharge himself from his warranty of the genuineness of the note. There was not enough shewn, therefore, to exclude the witness. Perhaps it might be doubted whether the witness ought to be excluded, even if his liability as endorser had been shewn ; for, by fixing the debt upon the defendant, he does not discharge himself; if he is liable, the plaintiff may prosecute him as well as the defendant, and prefer to take execution against him; or the maker may be insolvent; so that his interest would be contingent. It is useless, however, to speculate on that point; enough was not shewn in this case to establish the interest of the witness. He was therefore competent. By thé testimony of Corp, it appears that he was the mere agent or broker of the defendant; that he was not in fact a party to the loan ; and that what is complained of as usury was a gratuity. There was no corrupt agreement between the plaintiff and the defendant. In the language of Le Blanc, justice, in Dagnall v. Wigley, 11 East, 45, if Corp had agreed to advance the money, that would have been a [187] different matter; but here he advanced nothing, and the person who did advance the money received no more than legal interest. Corp swears that the notes on which the money was raised were discounted on the responsibility of the en- , , . , , , dorsers; and that he acted throughout as the agent for the defendant. On this statement of facts, the judge’s charge was correct, when he said the verdict should be for the plaintiff if the jury believed the testimony of Corp. Upon his testimony^, the case is substantially like that of Coster v. Dilworth, 8 Cowen, 300, New trial denied,