Abat v. Gormley

Mathews, J. delivered the opinion of the court. This suit was commenced by the holder and endorser of a promissory note, made in negotiable form, payable by Gormley to Foucher, and endorsed by the latter, the action is brought against both the maker and endorser. In the course of proceedings in the court below, the maker of the note turned on his co-defendant and claimed to be exonerated from the obligation of his promise, in consequence of an alleged failure of the consideration for which the note was given. Not contented, however, with this defence, he filed a supplemental answer, in the nature of a suit against Miller, in which he alleges, that this defendant had contracted to pay the note, when it became due. The pursuit of Gormley against Foucher, was excepted to in the answer of the latter; Miller in his answer, seems to have united with the principal defendant and endeavor to turn their united force against Foucher, both insisting on the want or failure of the consideration, for which the note was given. The cause was submitted to a jury in the District Court, who found a verdict for the plaintiff, to the amount claimed by him against Gormley, and also a verdict for the latter against Miller, for the same sum, and judgment being thereon rendered, these parties took the present appeal. The above statement of this case, seems to exhibit a strange anomaly, in a suit by a bom fide endorsee of a negotiable note, against the maker and endorser of such an instrument, (even without allusion being made to the further proceeding by which Roffignac was called in warranty.) The main question in the cause is, whether such proceedings as have taken place in it, are sanctioned and ought to be supported [241] according to the principles of law which form the rule in such cases. We assume as a matter settled by the decisions of this court, (to be found in 12 Martin, 235, and 1st N. S. 143,) that the negotiability of a promissory note made in that form, is not restrained or in any manner' altered, by the circumstance of its being paraphed ne varietur by a notary public. The several interests of the parties to the present suit, must therefore, be subjected to the rules which are applicable to negotiable papers. Between a bona fide holder under regular endorsement, the consideration of the note cannot be legally inquired into, in such a maner as to affect the interest of the endorser by destroying its validity or throwing embarrassments in the way of recovery, against the maker or endorsers. From every thing which appears in the evidence of this case, Abat the plaintiff, was' at the time of instituting suit the holder and owner in good faith, of the note in question. It is true an attempt was made to show the contrary, by testimony to be drawn from himself, and for this purpose, the counsel for the defendant Gormley, requested that the plaintiff should be sworn as a witness, in his own cause. But the court below refused to compel him to testify, to which refusal, . , * . a bill of exceptions was taken, &c. This refusal m our opinion was correct. By a general rule of the law of evidence, a party is excluded from giving evidence in his own cause. r ° i i • i i This rule is not founded merely on the consideration of his interest, if it were, it would follow, that a party might always be called by his adversary, to testify against his own interest, the rule is partly at least, founded on a principle of policy for the prevention of perjury. Starkie on evidence, part 4th, page 1061. To this rule our legislation has introduced an exception which authorises parties to be examined on interrogatories under certain formalities, but the defendant in this suit, did not bring himself within the exception. The plaintiff must, therefore, be considered as a boina fide holder and owner of the note, on which he brought suit, and any equity which may exist between the maker and endorser, arising out of the consideration for' which it was given, ought [242] not to have been listened to, in such a manner, as to embarrass him in his judicial pursuit, to recover from these parties, the stun promised in it. The exception to Gonnley’s claim against Foucher, for a deficiency in the land sold by the latter to the former, which land is alleged to have formed the consideration of the note, should have been sustained, and the claim in warranty dismissed, so ought the proceedings against Miller, if he had excepted to it. But as he has chosen to acquiese in it, and united with his adversary against Foucher, we are of opinion, that he must submit to the consequences which his' course of conduct has brought on hini, and abide the judgment which was rendered against him. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, in this case rendered, be affirmed, with costs, saving and reserving to the parties, defendants, all right of actions in warranty, which they may legally have amongst themselves. .