Finn v. Gustin , 4 E.D. Smith 382 ( 1855 )

Ingkaham, F. J.

The defendants are prosecuted in one action, as the makers and endorsers of a promissory note.

The defence was want of consideration and usury.

Upon the trial of the cause, the defendants’ counsel offered one of the endorsers, who was also a defendant, as a witness for his co-endorser and also for the maker, and proposed to prove by him that the makers received no consideration for the note, and also the usury, as charged in the answer. The judge excluded the testimony from this witness, on the ground that the evidence tended to establish a defence of which the co-defendant could not separately avail himself.

He was afterwards suffered to testify as to the want of consideration received by the maker, but not as to the usury.

Another endorser was called for the same purpose, and the testimony excluded because it would inure to his own benefit. One of the makers of the note was then offered as a witness for the endorsers, and he was excluded for the same reason.

Before the adoption of the Code, and after the passage of the statute allowing all parties to a note to be joined in one action as defendants, it was always permitted to call any of the parties as witnesses for their co-defendants, except in case of a joint liability. Thus an endorser was always a good witness for the maker, and a maker for the endorser, notwithstanding they were all sued as parties to the note, except in those cases where they were excluded on the ground of interest.

They were admissible for each other, although co-defendants, in all cases where the testimony was admissible if the parties had been sued separately. This right was secured by statute. (2 Rev. Stats. 352. Miller v. McCagg, 4 Hill, 35).

The Code has made no change in this rule, except to abolish the objection which existed as to interest in a witness, and has thereby extended instead of limited the rule above stated.

The ground of objection on the part of the court below, seems to be that the co-endorser or co-maker could derive benefit from the evidence to be given. This is not so. Two classes of defendants were embraced in one action, two makers, and two endorsers on the same note; either of the makers was admissible as a witness-for the endorsers, and either of the endorsers for the makers.

The evidence was to be confined by the court to the party who had a right to its admission. The testimony of an endorser was no more available, to his co-endorser than to himself; and a verdict upon such evidence might have been rendered for the makers, and against the endorsers. These questions were fully discussed in the opinion of Mr. Justice Parker, in Beal v. Finch, (1 Kern. 128); although as that was a case of tort, it was not necessary to explain those provisions as relating to contract. There is nothing in section 397 of the Code affect ing this rule. That section provides that a party may be examined on behalf of his co-plaintiff or co-defendant, as to any matter in which he is not jointly interested, and as to which a separate verdict can be rendered. The rule as I have above stated it, fully complies with this provision. As to the defendant whom the defendant offered as a witness was jointly liable, the evidence is not admissible; as to the others, it is; and the verdict must be regulated accordingly. In both cases, the court below erred, and the judgment must be reversed.