to pay the endorsee; and his liability to the one cannot exceed in extent his liability to the other. (9)

So in an action by endorsee against drawer or acceptor, an endorser is in general a competent witness either for plaintiff or defendant: for plaintiff, because, though the plaintiff's succeeding in the action may prevent him from calling for payment from the endorser, it is not certain that it will (a); and whatever part of the bill or note the endorser is compelled to pay, he may recover again from the drawer or acceptor; and he is competent for defendant, because, if plaintiff fails against drawer or acceptor, he is driven either to sue the endorser or to abandon his claim.

(9) Venning v. Shuttleworth, 24th February, 1796, at Guildhall. In an action by Venning, as endorsee of a note, against Shuttleworth as payee and endorser, the plaintiff called the drawer to prove notice to the defendant; he was objected to, but per Lord Kenyon, stat indifferenter, and he was accordingly admitted.

[In an action against the endorser of a note, it was held that the maker was a competent witness to prove that time had been given him by a previous holder after the note became due. Spencer C. J. giving the opinion of the Court, said, "The witness was answerable on the note, whether the plaintiff succeeded in the suit or failed; and in either event no additional burthen was thrown on him. If this were an accommodation note, then on the authority of Jones v. Brooke, (4 Taunt. 466,) the objection to the witness would be well founded; because if the defendant was rendered liable in this action, he would have a remedy over against the maker of the note, not only for the principal and interest, but for the costs." Hubbly v. Brown, 16 Johns. R. 70.

But it has been held in Massachusetts, that in an action against the endorser of a note, the maker was not a competent witness for the defendant without a release. Jackson J. giving the opinion of the Court, said, "The maker is directly interested in the event of the suit; because a verdict against defendant may be used as evidence in an action by the latter against him. If there has been any uncertainty in the practice of other courts, there has been none in this; and such witnesses have always been released by the defendant before they were examined by him." Pierce v. Butler, 14 Mass. R. 303.

Where the maker of a note had given a mortgage to the endorser, defeasible on the former's paying the contents of the note to the latter, it was held, in an action against the endorser by an endorsee, that the maker was not a competent witness for the defendant. By the Court. "The object of the mortgage was to indemnify the endorser. Not only payment of the note by the maker would defeat the mortgage, but should the note be avoided by other means, so that the endorser should be saved harmless from it, the result would be the same. The witness was interested in the event of the suit." Cowles v. Wilcox, 4 Day, 108.]

[(a) In Massachusetts, in an action against the maker of a note, a release was in one case considered necessary in order to render an en

Thus he has been admitted upon a bill drawn for his accommodation to prove for the plaintiff that (10) the plaintiff gave him value for it, and he has been admitted for the defendant to prove that he had paid the bill (11), or to prove that an unstamped bill, dated abroad, had in fact been made here. (12)

So he has been admitted for the plaintiff to prove his own endorsement. (13)

dorser a competent witness for the plaintiff, to prove the handwriting of the defendant. Barnes v. Ball, 1 Mass. R. 73.

And in Virginia in an action by an endorser against the drawer of a bill, it was held, that an endorser, who purchased the bill merely as agent of the plaintiff, was not a competent witness for the plaintiff, unless the agency was first proved by other evidence than the endorser's, or the endorser released; but that after the agency was proved, or the release given, he would be competent. Murray v. Carrett, 3 Call, 373. See also Steinmitz v. Currie, 1 Dall. 269.]

(10) Shuttleworth v. Stephens, 1 Campb. 408.

[In an action against the drawer of a bill, an endorser who has endorsed it without recourse to himself, is a competent witness for the plaintiff to support his title as endorsee. Cowles v. Harts, 3 Conn. R. 516.]

(11) Charrington v. Milner, Peake, N. P. C. 6. The note had been endorsed by Monk to the plaintiff, and the defendant was allowed by Lord Kenyon to call Monk to prove that he had paid the note to the plaintiff.

Birt v. Kershaw, 2 East's Rep. 458. The defendant drew a bill in favor of Wilby, which Wilby endorsed to Glover, whose assignees now sued the defendant on the bill. The defendant called Wilby to prove that he had paid the bill to Glover, and had been reimbursed by the defendant. It was objected that Wilby (who had no release from Kershaw) came to discharge himself, and was therefore interested; his evidence, however, was received, and a verdict found for the defendant. And on rule nisi to set it aside, and cause shewn, the court was clearly of opinion that this testimony had been properly admitted; that this case fell directly within the principle of that of Ilderton v. Atkinson, 7 Term Rep. 480. that the witness stood indifferent. Rule discharged. Lord Ellenborough said, it is true that in an action by the defendant against Wilby for the money received by him, if the plaintiffs recover, Wilby may also be liable for the costs of this action; but that argument was urged in Ilderton v. Atkinson, without effect.

(12) See Jordaine v. Lashbrooke, ante, p. 371.

(13) Richardson v. Allen, 2 Stark. 334. In an action by endorsee against acceptor, a witness called to prove the endorsement said it was not the supposed endorser's writing; plaintiff then proposed to call other witnesses to prove it was, but Lord Ellenborough held that as plaintiff was not obliged to have called the witness he did, from his being an attesting witness, it was not competent for him to call other witnesses to contradict him; plaintiff then proposed to call the endorser himself, and Lord Ellenborough thought he might, because he could speak from knowledge, other witnesses from belief only, and he came to charge

And, where the endorsement has been negatived by another witness (not being an attesting witness) whom plaintiff had called, he, or some person who saw it written, is the only witness who can be called to prove it. (14)

[It has been held, that in an action against the maker of a note, a person who passed it to the plaintiff without endorsing it, was not a competent witness to prove the signature of the maker, because he was liable on an implied warranty that the note was not forged. (a)

But a person who sells a note, without endorsing it himself, is a competent witness for the plaintiff in an action by the holder against an endorser, after the execution of the note is proved. (b)]

In an action against the drawer of a bill, it has been held that the acceptor is not a competent witness for defendant to prove a set-off, on the ground that he is answerable to the drawer only to the amount to which plaintiff recovers against defendant. (15) (d)

himself; he was examined accordingly, but negatived the handwriting ; and the plaintiff was nonsuited.

(14) See Richardson v. Allen, ante, p. 375.

[(a) Herrick v. Whitney, 15 Johns. R. 240. Per Curiam. "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; for by obtaining a verdict for the plaintiff on the plea of non assumpsit, he protected himself against his own warranty."

A witness in a similar case was held to be incompetent, who had passed the note to the plaintiff to be collected at the plaintiff's risk For this means the risk of the maker's solvency, not the risk of the note's being a forgery. Shaver v. Ehle, 16 Johns. R. 201.

But in a case in Massachusetts, an endorser who had endorsed a note to A. B." at his own risk," was held to be a competent witness to prove the execution of the note. The defendant's counsel objected that the witness was interested in the event of the suit, on account of his liability in case the note was forged. But the court said that he had no interest in the event of the suit. The court however says nothing as to his liability, in case the maker's name was a forgery. Rice v. Stearns, 3 Mass. R. 226.]

[(b) Williams v. Matthews, 3 Cowen, 252.] (15) Mainwaring v. Mytton, 1 Stark. 83. In an action against the drawer of two bills, he called the acceptor to prove that the acceptor had endorsed to defendant a bill drawn by him on the plaintiff, and accepted by plaintiff, and that defendant was therefore entitled to set off this acceptance; objection being made to his competence, it was urged that he was indifferent, for if plaintiff failed against the drawer, he might

But if the drawer is protected against the holder by a cross-demand he has against the holder, quære, is not such cross-demand, when set off, equivalent to payment; and will not the drawer be entitled to call upon the acceptor for the full amount of the bill, as much as if he had paid the full amount in money?

[It has been held, that in an action on a bill or note, a person interested in the event of the suit, or even the plaintiff himself, was competent to prove the loss of the instrument. (e) (ƒ)]

sue the witness; but Dampier J. said the witness was interested in lessening the balance, being answerable to defendant for what plaintiff should recover; and he was rejected, and plaintiff recovered his whole demand.

[(d) In an action against the drawer of a bill, it has been held that the acceptor, though he had funds of the drawer's in his hands sufficient to pay the bill, at the time he accepted it, was a competent witness for the defendant, because not liable for the costs of the suit. Barnwell v. Mitchell, 3 Conn. R. 101.]

[(e) In an action on a note not negotiable, brought in the name of the payee for the benefit of an assignee, it was held that the party in interest might be a witness to prove the preliminary point of the loss of the note, in order to let in parol evidence of its contents. Chamberlain v. Gorham, 20 Johns. R. 144.

So it has been held that the plaintiff was a competent witness to prove the loss of a bill of exchange. Meeker v. Jackson, 3 Yeates, 442. Parties to suits have, in some American cases, been admitted to prove the loss or destruction of deeds, preparatory to the admission of evidence of their contents. See Jackson v. Frier, 16 Johns. R. 193; Seekright v. Bogan, 1 Hayer. 176.]

[(f) It was formerly held in England, that a party to a negotiable instrument, could not be a witness to impeach its validity. Walton v. Shelly, 1 T. R. 296.

This rule, though abandoned in England, (See Jordaine v. Lashbrooke, ante, p. 371,) has been adhered to in many of the courts of the United States.

Thus it has been held that the endorser of a note was not a competent witness to prove that it was given for a usurious consideration. Parker v. Lovejoy, 3 Mass. R. 565; Winton v. Saidler, 3 Johns. Cas. 185; Churchill v. Suter, 4 Mass. R. 156.

In the case of Churchill v. Suter, Parsons C. J., after a review of the English cases which had been decided before that time, (1808,) says, "From this review of the adjudged cases, no conclusion, on either side, can be drawn."-" More than twenty years ago, after a full argument, the court unanimously decided that the testimony of the parties to the note should not be admitted; and the decision has been uniformly adhered to. We admit, as a general rule, that infamy and interest are the tests of the competency of witnesses. But we are satisfied that the exclusion of parties to a negotiable security, from testifying that it was originally void, is another exception, established to assist commerce and

discourage fraud. No man shall be admitted to allege his own turpitude, when the allegation will tend to encourage or support fraud or illegality."

So it has been held that the maker is not a competent witness in an action against an endorser, to prove that the note was given for a usurious consideration. Widgery v. Munroe, 6 Mass. R. 449.

So in an action against one of two makers of a joint and several note, the other, though released, is not a competent witness for the defendant, to prove that the note was given for a usurious consideratfon. Jones v. Coolidge, 7 Mass. R. 199; Houghton v. Page, 1 N. Hamp. R. 60. The maker of a note who signed it for the accommodation of the endorser, is not a competent witness, in an action against the endorser, to prove that the defendant after receiving the note got it discounted at a usurious rate of interest; "because the note was made to all substantial purposes, when the endorser procured it to be discounted, which was the purpose for which it was made." Hartford Bank v. Barry, 17

Mass. R. 94.

It has been held in Massachusetts, that a person signing the note as agent for the maker, was not a competent witness to prove the note usurious in its creation. Packard v. Richardson, 17 Mass. R. 122.

The expressions reported to be used by the Supreme Court of Massachusetts in the case of Butler v. Damon, imply that an endorser of a note could not be a witness to prove that the note was not given for any value, but was merely an accommodation note. The Court said, "The principle of the decision in Churchill v. Suter is applicable here. A party to a negotiable security shall not be received to show facts antecedent to the transfer, whereby the holder is to be defeated of his recovery." 15 Mass. R. 223.

But though a party to a note is not permitted to prove that it was void at its original formation, yet he is a competent witness to prove any subsequent facts, which invalidate the title of the holder. In Powell v. Waters, 17 Johns. R. 180, the court says, "A party whose name is on a negotiable paper, may be permitted to testify, as to any facts which arise subsequent to the signatnre of the witness."

Thus in an action against the maker of a note, the endorser is a competent witness, to prove that neither he nor the maker received any consideration for the note, that he delivered it to a third person in order to get it discounted at the bank, who, instead of offering it at the bank, put it into the hands of a broker. The Court said, "The principle sanctioned in the case of Winton v. Saidler, (supra,) which excludes the party to negotiable paper from invalidating it, does not apply to this case. Such persons have been admitted under that rule, to testify to facts subsequent to the due execution of the note, and which go to destroy the title of the holder." Woodhull v. Homes, 10 Johns. R. 231.

So the maker or endorser of a note is a competent witness to prove payment. Warren v. Merry, 3 Mass. R. 27; White v. Kibling, 10 Johns. R. 231; Bryant v. Ritterbush, 2 N. Hamp. R. 212.

So where the maker and payee of a note agreed that if the maker did not take certain goods of the payee, the note was to be void and returned; and the maker a few days after gave notice to the payee that he should not take the goods; and the payce afterwards endorsed it to secure a debt; it was held that the endorser was a competent witness in an action against the maker, to prove these facts, and also that the plaintiff, when he received the note, had notice of the condition on which the note was given, and of its having failed. Spencer C. J. giving the opinion of the Court, said, "The defendant was not testifying to any fact which showed that the note was void in its inception, but that