Adams v. Moore , 9 Port. 406 ( 1839 )

GOLDTHWAITE, J.

It may be admitted, that the plaintiff in error could be charged as the endorser of this note, admitting it to have been made by Wheeler & M’Cormack, payable to him, by writing his name on the face of it, immediately under, the signature of their names; but such is certainly not the prima fade intendment of the note, in the condition it was when offered in evidence.' As it then appeared, it was the joint note of Wheeler & M’Cormack, and Adams, payable to Adams, or his order, and could only receive existence as a legal obligation, from the endorsement or assignment of the latter. If the plaintiff below intended to charge Adams as an endorser, it was incumbent for him to show that the signature purporting to be his, was made after the signature of the note by Wheeler & M’Cormack, and with the intention of transferring the legal interest to another. If these facts had been shown in evidence, we cannot say that Adams might not be chargable as endorser, though it would at this time be manifestly improper to pre-judge the case, even on such a state of proof. On the issue to the plea of non eslfactiim, it was manifestly improper to admit the note, as evidence of Adams’ endorsement, without further proof.

We presume the County court must have considered the affidavit of Adams, appended to the pleas, as in evidence before the jury, in which affidavit the factum of' the signature is admitted; but even if such had been the case, no legal inference could arise from any fact stated by him, that he was liable at law as ah endorser.

The County court also erred in Rejecting the deposition of Wheeler. It is true, a great portion of the’ evidence contained in this deposition, was of a character wholly irrelevant to the question at issue,- büt it contains thé statement,- that this note was given by M’Cormaek to Moore,- to pay a debt due from the former to the latter.This Was evidence applicable to the issue formed,- and showed that the note came into Moore’s hands, not from Adams',- btit from M’Cormaek. The mere fact, that a witness is a- party to a negotiable paper, does- not disqualify him.- Such is the established law in this State —(Griffin vs. Harris, January Term, 1839.)

The declaration,- if in the form admitted by the agreement of the defendant, must charge Wheeler & M’Cormack' as the makers of the note,- and the testimony of' Wheeler could be used by the endorser’, to show he was not liable as such, without coming Within the influence of Ross vs. Wells, (1 Stew. 13:9,) in which this court held,that one maker of a note is not a competent Witness to invalidate itl-