Vance v. Collins , 6 Cal. 435 ( 1856 )

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

1. The notice of demand and non-payment should have been served personally upon the defendant residing in the same city where the note was held, and service through the post-office was not effectual to charge him.

2. The maker of a note, after judgment by default, is a competent witness for the endorser, because his interest is equally balanced. Our statute is not so severe in the exclusion of witnesses on the ground of interest as is the rule at common law. It makes the test of interest that the witness “will gain or lose by the direct legal operation and effect of the judgment.” Nor is the objection valid that he is a party to the action; after judgment against him the action is ended as to him, and he is no longer a party, and then his competency must be tested by his interest.

3. The Court did not err in the refusal of the instructions asked for by the plaintiff, because if the defendant merely endorsed his name under the words, “holden on the within note,” he was an endorser entitled to notice of demand and non-payment. The question whether the words “without demand or notice” were written when the defendant signed his name or were interpolated afterwards, was properly left to the jury.

Judgment affirmed.