
    Merrick Rice versus James Stearns and Others.
    A promisee of a note endorses it specially, thus: “ For value received, I order the contents of this note to he paid to A. B., at his own risk.” In an action on such note by the endorsee against the promisor, the promisee is a competent witness to prove the execution of the note. Such special endorsement transfers the property of the note, with its negotiable quality, to the endorsee.
    Assumpsit by the endorsee of a promissory note against the promisors. The note was originally made payable to Jonathan Symonds, or his order, who endorsed it to the plaintiff in these words: “For value received, I order the contents of this note to be void to Merrick Rice, at his own rislc.”
    
    Upon the trial, at the last April term, in this county, before Sedgtvick, J., two of the defendants denied the signature of their names to the note. The plaintiff thereupon offered Symonds, the promisee named in the note, to prove that he, as a deputy sheriff, having an execution in his possession against the defendant James Stearns, and having arrested the said James thereon, took the said note in satisfaction of said execution, which he afterwards endorsed in manner aforesaid, to the present plaintiff, as attorney to the creditor *in said execution, which was discharged. [ * 226 ] The defendants objected to the competency of Symonds to testify to the said facts, on the ground that he was interested. The judge overruled the objection, and the plaintiff had a verdict. The defendants moved for a new trial, because Symonds was admitted, and the cause was continued to this term.
    And now, Bigelow, for the defendants, contended that the witness had an immediate interest in the issue ; for if the note was forged, he was still liable to the creditor on the execution, for the amount of the judgment. Perhaps the plaintiff’s release might cure the objection as far as it rests on the above ground. But there is another view, in which the objection has a still more serious aspect, and which the plaintiff’s release cannot cure. By supporting this note as genuine, he prevents a criminal prosecution against himself for the forgery; a consideration of much more importance to him than the mere liability to pay a sum of money.
    It is improper, upon general principles, that a promisee should be received as a witness in supporting a note of hand. It will lead to a mischievous practice. Persons who hold doubtful notes will transfer them to confidential friends, and make themselves witnesses. It is superfluous to suggest that such a practice necessarily leads to gross corruption and perjury.
    
      Dana, for the plaintiff,
    said that the witness having,, by his special endorsement on the note, secured himself against liability in any event, it was difficult to discern his interest in this action. As to his being answerable criminally, whatever foundation there was for the suggestion, it could go only to his credibility, not to his competency.
   The Court took time for advisement, and afterwards their opinion was delivered as follows, by

Parsons, C. J.

The interest of Symonds must depend on the effect of his endorsement.

A security, negotiable in its creation, must, during its negotiation, preserve its negotiable quality; otherwise, when assigned, the assignee would hold a contract by the assignment different from the contract assigned. It is for this reason settled, that a negotiable note endorsed in blank, or by a * direction to pay the [ * 227 ] contents to A. B., omitting the words, “or his order” is further negotiable by the holder under such endorsement. It is also settled that when a negotiable security is endorsed, “ Pay the contents to my use,” or, “ to the use of a third person,” or, “ Carry this hill to the credit of a third person,” such an endorsement is not an assignment of the security, but is only an authority to pay the money agreeably to the direction of the endorsement. There are other restricted endorsements also made; as, “ Pay the contents to A. B. only.” Whether this endorsement is only an authority to A. B. to receive the money for the use of the endorser, or for his own use, if made for- value received, or whether in this last case the restriction is not void, and A. B. may further negotiate it, seems not to be settled. If the property of the note be vested in A. B., perhaps he will hold it with its negotiable quality, notwithstanding the restriction. But of this we give no opinion.

The case at bar is a restricted endorsement of another kind, and which in practice is very common. The promisee of a negotiable note endorses it to a third person, or his order, for value received, stipulating that the endorser is not to be responsible, if the maker does not pay it. If, notwithstanding this stipulation, the endorser is answerable, if the maker do not pay the note, then the witness, Symonds, is interested, and ought not to have been sworn.

Upon consideration, we are of opinion that the promisee, endorsing the note under this express stipulation, is not eventually holden to pay the -note, if the maker should not. As the promisee had the property of the note, he might dispose of it on what terms he pleased, with the assent of the purchaser, and the latter cannot complain of the necessary effect of his own agreement; and the endorser cannot be charged upon his own Contract, directly against the express intent of it. If this opinion is correct, Symonds, after this restricted endorsement, had no inWest in the event of the suit, and was a competent witness.

Another point of some importance arises, which involves the question, whether, by this restricted endorsement, the property of the note passed to the endorsee, so that he may [ * 228 ] * sue upon it in his own name. If the restriction applied to the quality of the contract, so as to render a negotiable security no longer negotiable, there would be some difficulty in allowing, consistently with legal principles, an endorsement of this effect to operate as a transfer of the note. But this is not the effect of the restriction ; the note remains negotiable in the hands of the endorsee, although he has no remedy against the endorserand in whose hands soever the note may come, the maker is still liable, according to the terms of his original contract, to pay to the promisee or his order. The note, therefore, being the absolute property of the plaintiff, and Symonds being a competent witness, the verdict must stand, and judgment be entered accordingly. 
      
      
        [Sigourney vs. Lloyd, 8 B. & Cr. 622.-3 M. & S. 58. -3 M. & F 229.-3 Y. & J. 220.—5 Bingh. 525.—Ed.]
     