
    WOODRUFF v. DAGGETT.
    1. An endorser of a promissory note is a competent witness for the holder, in a suit between the latter and a prior endorser.
    2. To exclude a witness on the ground of interest, his interest must be present, certain and vested, and not uncertain, remote and contingent. If the witness will gain or lose by the event of the suit, or if the record will be evidence for or against him in another action, lie will be excluded ; if not, the objection goes to his credibility and not to his competency.
    3. In order to excuse the not giving notice of non-payment and protest, on the ground of inability to find the endorser, reasonable diligence must have been used to discover the endorser. Whether due diligence has been used is a question of fact, to be submitted to the jury, under proper instruction from the court. _
    Oír Rule to show cause why the verdict rendered for the plaintiff should not be set aside.
    This was an action of assumpsit, on two several promissory notes, by the holder against the defendant as first endorser. The notes were drawn by John Lester, payable to Daggett, the defendant, by Daggett endorsed to Samuel A. Baker, and by Baker to Woodruff, the plaintiff.
    The first nóte was dated the 18th of January, 1838, for $405, and payable at ninety days. The second note was dated the 4th of April, 1838, for $343.60, and also payable at ninety days.
    The first note became due the 21st of April, 1838, being the last day of grace, and was, on that day, presented to the maker, and payment demanded; payment was refused, and the note was protested. The presentment and demand were made at the request and for the Bank of the State of New York, in the city of New York, to which bank the note had been sent for collection by the cashier of the Albany City Bank, in the city of Albany. Notices of the non-payment of the note were placed by the notary, on the same day, April 21st, in the post office of the city of New York, directed to James Woodruff, and to the cashier of the Albany City Bank, respectively. On the 23d day of April, the 22d being Sunday, a like notice of non-payment was left at the last place of business of John Daggett, the defendant, at the corner of John and Gold streets, in the city of 'New York, with a person having charge of the shop at that place. The notary also, on the same day, put a notice of non-payment and protest in the post office of the city of New York, addressed to “ John Daggett, New York.” The witness, being the agent of the notary, by whom such notices were served, on the morning of the 23d day of April, when he served the notice at the corner of John and Gold streets, then and there inquired of the person having charge of the shop, where Daggett could be found, and was answered that Daggett had removed to the state of New Jersey, but to what part of the state, he could not tell, and that notices or letters left at that shop would be received by said Daggett. Thereupon, the notice of non-payment addressed to Daggett was left at the shop with the person who had it in charge. Immediately thereafter, and in the same morning, the witness made inquiry, at the workshop of John Lester, in New York, of one of his workmen, Lester himself being absent, where Daggett could be found, but could obtain no information respecting his residence. This witness testified that, having had occasion previously and subsequently to the 23d day of April, to give notice of non-payment of notes or to inquire for Daggett, he had used, without any further success, all the exertions in his power to ascertain his residence.
    The second note for $343.60, became due on the 6th of July, 1838, and was likewise on that day presented to the maker, and payment demanded, and payment being refused, was protested; which demand and protest were made on like request and under like circumstances as in the case of the first note. On the morning of the next day after demand made and refusal, notices of non-pay■ment and protest were sent by the clerk of the notary, having charge of the note, to the several endorsers, as follows: the several notices, addressed to the several endorsers, respectively, were placed in the post office of the city of New York, under cover, addressed to the cashier of the Albany City Bank, at Albany, on the morning of the 7th of July, before the closing of the mail for Albany, on that day. The clerk of the notary, after the protest of the note, and before mailing the package addressed to the cashier of'the Albany bank, went to the corner of John and Gold streets, in New York, the last place of residence of Daggett, and there made inquiry, but could get no information respecting him.
    On the 9th day of July, the Bank of Albany received by mail the notices addressed to the cashier, and also notice of the nonpayment and protest. The bank caused the several enclosed notices, addressed to the endorsers, to be forwarded as follows, viz : the notice to Baker was, on the same 9th of July, placed in the post office at Albany, directed to “ S. A. Baker, Catskill, New York ;” and the notice received by the bank directed to Daggett, was enclosed within the notice and directed and sent to Baker. The notice to Woodruff was at the same time deposited in the post office in Albany, directed to “James Woodruff, care of Theodore Romaine, Detroit, Michigan.”
    Samuel A. Baker, the second endorser, was examined as a witness, on the part of the plaintiff, his evidence having been taken under a commission. Baker proved the endorsement of Daggett, on both notes, to be in his proper hand writing; and further testified that he received a notice by mail in due time, of the protest for non-payment of the note of $343.60, and that the holders looked to him for payment of the same;' that a similar notice, directed to Daggett, was enclosed in the notice received by him ; that the notice directed to Daggett was not sent, because he did not at that time know his residence; that he had made many inquiries for the residence of Daggett, prior to the time the note fell due, and also prior and subsequent to the time when a certain other note, drawn by Lester for $405, and also payable to the order of John Daggett, had fallen due ; that he inquired at least once a week for six or eight weeks prior to the time when the note for $343.60 became due ; sometimes a dozen times a week, and as often as he could find a man who had been acquainted with Daggett. That he inquired of Lester, the maker of the notes, at his shop and at other places, and also of the men in his employ. That he inquired at the former residence and place of business of Daggett, in the city of New York, and several times of a man who appeared to be in the occupation of the premises, and doing business there. That he made inquiries of several persons, (naming them) and of every other person whom he knew had dealt with, or was acquainted with Daggett. That he received no information of his place of residence, except that Mr. Lester said Daggett had removed into the state of New Jersey somewhere, but where he could not tell; but that Daggett would be in New York in a few days, and that the notes should be arranged. The witness said it appeared to him that Lester endeavored to keep Daggett’s place of residence from his knowledge. That the last time witness saw Daggett was at his former place of residence in John street, New York, about the forepart of April, 1838. That a year, or a year and a half afterwards he learned that Daggett lived within a few miles of a place called “The White House,” in New Jersey ; and that was the first he learned of his residence, after his removal from John street, New York. At the time of the trial the name of S. A. Baker, as endorser, was erased.
    The cause was tried in the county of Somerset, at the January circuit, 1844, before Mr. Justice Nevius, and a verdict rendered for the plaintiff for the amount of both notes with interest. A rule was granted to show cause why a new trial should not be granted, which was argued at the November term of this court.
    P. D. Vroom for defendant, in support of the rule.
    No notice of non-payment and protest was proved, neither was sufficient excuse shown. Though inability to serve notice, because the person to be charged cannot be found on inquiry, be such excuse, yet due diligence must be used. See Story on Promissory Notes, § 316 and note. 3 Hill’s Rep. 520. 6 Mass. 386.
    Baker was not a competent witness. He stood on the paper between Daggett and Woodruff, and his evidence having been previously taken by commission, could not be legalized by the erasure of his name at the trial. He was liable to the holder by his own admissions, as well as by presumption of law. The object of his evidence was to fix the liability of the endorser before him, and if recovery and satisfaction were had against Daggett, then he. would be discharged. The evidence of Baker tends to produce a verdict and judgment, by which the money would probably be raised, and Baker relieved. Though there are some late English Nisi Prius cases otherwise, yet the weight of American authority is against the admissibility of the witness. Baskins v. Wilson, 6 Cow. 471. Barnes v. Ball, 1 Mass. 73. Steinmitz v. Currie, 1 Dal. 270. Talbot v. Clark, 8 Pick. 51. See 2 Cow. Phillip Ev. 132 Notes, and 3 Ib. 1545, where the cases are collected.
    As to the character of the interest which will exclude a witness, see Van Ness v. Terhune, 3 John. Cas. 32. Shiras v. Morns, 8 Cow. 60. Sage v. Sherman, 25 Wend. 430. Marquand v. Webb, 16 John. 93.
    But there is another ground of ineompetency. Baker stood in the light of a surety, and his evidence here goes to establish a liability which tends to exonerate him. If Baker should pay Woodruff, he would be entitled to be subrogated for Woodruff, and have the benefit of the judgment obtained by his own evidence Geoghehan v. Reid, 2 Wharton, 154. Whatever the doctrine in England may be, in this country it is held that the security is not extinguished by such payment by the surety. Cayle v. Ernsworth, 6 Paige 33. Croft v. Moon, 9 Watts 453. Fleming v. Beaver, 2 Rawle 132.
    
      H. W. Green for the plaintiff.
    It must be a certain, immediate, legal interest in the event of the suit in order to disqualify a witness. In this case there is no such interest. The obtaining the judgment will not relieve Baker, satisfaction also must be obtained before he will be discharged. See 1 Greenleaf’s Ev. § 386, 390.
    The rule is well settled, in England, that an endorser is competent for the plaintiff, against the maker or prior endorser. Rich
      
      ardson v. Allen, 2 Stark. Rep. 334, 3 Eng. C. L. 371, Cropley v. Connor, 4 Carr. and Payne 21, 19, E. C. L. 256, Hobson v. Rich., cited in Chitty on bills 634, Stevens v. Lynch, 2 Camp. 332, Byles on Bills, 237, 16 Law Lib., Bayley on Bills, 418, 419, 422, 1 Saund. on Pl. and Ev. 315. Phillips and Ames on Ev. 125. 4 Cow. Phil. Ev. 20, 32.
    The American cases are divided, but in some states it is now settled according to principle, although heretofore held otherwise. Farmer’s and Mechanics Bank of Michigan v. Griffith, 5 Hill 476, overruling Baskins v. Wilson.
    
    Due diligence was used to ascertain the residence of Daggett. The inquiry is to be made where information will most likely be found; and whether good faith and reasonable diligence have been used, is a question of fact for the jury. 2 Stark. Ev. 165. (Ev. 1836) Story on Prom. Notes § 264, 366. Bateman v. Joseph, 12 East. 434. Winans v. Davis, 3 Harr. Rep. 276.
   Carpenter, J.

The chief question in this cause is, whether Samuel A. Baker is a competent witness, and whether his testimony, taken under a commission, was properly read in evidence on the trial of the cause below. It is obvious that if interested, and therefore incompetent at the time of delivering his testimony before the commissioner, that testimony cannot afterwards, at the time of the trial, be legalized by the erasure of his name as endorser from the back of the notes. There has unquestionably been much controversy and much contrariety of decision in the courts, in relation to the competency of an endorser, as a witness, in a suit brought by the holder against the drawer of a promissory note or a prior endorser. But as the doctrine now stands in regard to the interest which will disqualify a wiLness, the question may be readily settled upon principle, and I think in accordance with the present decided weight of authority.

Since the decision of the case of Bent v. Baker, 3 Term. Rep. 27, it has been settled that it is an interest, not in the question in controversy, but in the event of the suit that will disqualify a witness. The interest must be a present, certain and vested interest and not an interest uncertain, remote and contingent. The rule has been laid down with great clearness to be: Is the witness to gain or to lose by the event of the suit ? Can the verdict be evidence for or against him in any other suit? If the witness will not gain or lose by the event of the suit, and if the verdict cannot be given in evidence for or against him, whatever may be the bias, though as strong as can influence the mind of man, the objection must go to his credit and not to his competency. Thus it is settled, that it is no disqualification, though a witness believes himself under an obligation in honor to indemnify the party for whom he is called ; he is at competent witness and his credibility rests with the jury. Pederson v. Stoffles, 1 Campb. 144. So though the witness believes himself to be legally interested, when in point of fact it is otherwise. In short to disqualify the witness, there must be not merely hope or expectation, but a direct interest in the event of the suit. If merely possible, however probable, it will not disqualify. See 1 Greenl. Ev. § 387, 389, 404, 408. 1 Phil. Ev. 45 et seq. Henarie v. Maxwell, 5 Halst. 297. S. C. 6 Halst. 94.

Further, that the testimony of a witness should go to charge another, and thereby open a door to the probable satisfaction of a.liability by the other, rather than by himself, is not a sufficient ground for exclusion. Thus a trespasser not sued has been held a competent witness for the plaintiff against his co-trespassers, although it may be in the highest degree probable, that judgment when obtained will be satisfied by an execution against the defendants, and the witness thus relieved from his liability to the plaintiff. Lutterel v. Reynell, 1 Mod. 283. Morris v. Daubigny, 5 Moore 319, 16 Eng. C. L. Rep. 402; 1 Greenleaf’s Ev. § 409. The judgment itself would not be a good plea in bar to a future suit, against the witness for the same cause of action ; the contingency of payment or satisfaction under it would be further necessary for his discharge from the liability, and therefore, however his position might be supposed to bias his mind, the objection can only go to his credibility before the jury, and not to his competency. It is true, if the plaintiff use the judgment to obtain payment from the defendants, the witness will thereby be discharged ; but that he' will so use it, is at the mo'st but a probability, and is insufficient to disqualify.

To consider then the position of the witness in this case. As to his competency, we are embarrassed by no question of publie policy. The admissibility of his testimony is to be settled according to the general rules on the subject, and as the testimony of other witnesses is admitted or rejected, according as they are interested or not, in the event of the suit. What is the interest to disqualify ? It is said that his evidence tends to produce a verdict and judgment, by which, if satisfaction be obtained, the witness would be discharged. But the verdict and judgment will be no protection. As in the case of co-trespassers, it is but the opening of a way by which the plaintiff may possibly obtain satisfaction from the defendant, and thus the witness may possibly be discharged from his responsibility. Though it may be said, it is to be presumed the plaintiff will follow up his legal rights, and if he should recover judgment that he will obtain satisfaction ; yet it still depends upon contingencies whether he obtain satisfaction. The defendant may become insolvent. It is not a question what will be the probable effect of a recovery by the plaintiff, but what will be its immediate certain effect upon the witness’ liabilities ; for if the interest is contingent and uncertain, it will go to his credit and not to his competency.” Per Wilde J. in Eastman v. Winship, 14 Pick. 47, in which the court held that as recovery, without satisfaction, would not discharge the witness standing in the same relation as the witness in the present case, he was not therefore disqualified. Relying upon the rules above laid down and now universally received, it is a reasoning, which in my judgment cannot be resisted. It is not necessary to multiply authorities, or again to refer to the cases already cited by counsel, but such is the conclusion which I apprehend is supported by principle as well as by the weight of authority. In Massachusetts the case of Talbot v. Clark, 8 Pick. 55, has been silently over-ruled by the subsequent ease of Eastman v. Winship, above referred to. So in New York, the competency of the witness lias been sustained in Barretto v. Snowden, 5 Wend. 186, and The Bank of Michigan, v. Griffith, 5 Hill 476; the latter case expressly over-ruling Baskins v. Wilson in 6 Cow. 471.

A further ground of incompetency has however been urged by the counsel of the defendant. It is said that Baker stands in the light of a surety, and if he should pay Woodruff, he would be entitled to be subrogated for Woodruff, and have the benefit of the judgment to be obtained by his own evidence. This is a ground of ineompetency unknown to the common law, and I apprehend it will fail when tested by the rules which I have already considered. Independent of the doubt whether such payment would not extinguish the judgment itself, it is an interest not immediate to the result of the spit, nor arising from the right of the witness to use the verdict or judgment in pleading or in evidence, but depending upon contingencies. It presupposes first, that the plaintiff will not proceed to enforce satisfaction from the defendant; secondly, that ‘ the witness will pay the claim of the plaintiff; and then, upon the concurrence of both these contingencies, that the witness will proceed in equity, to claim the merely equitable right of substitution or subrogation, in regard to the rights of the plaintiff over and to the judgment which he may receive. All is contingent, and however it may be held elsewhere in courts where attempts have been made to apply equity principles to common law actions, it is an interest, which if it exist at all, can here, in no wise, affect the competency of the witness. In my opinion the testimony of the witness was properly admitted.

Next, was due diligence used in order to ascertain the residence of Daggett ? The impracticability of finding an endorser or ascertaining his place of residence, of course constitutes a sufficient ground to excuse notice of non-payment and protest, but in order to make this excuse available, reasonable diligence must be used to discover the endorser. The inquiry must be made fairly and honestly, with reasonable care and diligence. What is reasonable diligence must depend upon the particular circumstances of each case, and in relation to which, from its very nature, no certain and invariable rule can be laid down. The inquiries should be made in the places at which it would be most likely information would be received, as at the last place of- residence, and of the other parties to the paper, if within reach of such inquiries. And whether due diligence has or has not been used, seems to be a question of fact to be submitted to the jury, under proper instruction from the court. Winans v. Davis, 3 Har. Rep. 276. Bate- man v. Joseph, 12 East. 434. S. C. 2 Campb. 461. Browning v. Kinnear, 1 Gow. 81, 5. E. C. L. 471. It is not necessary to recite the evidence. It is to be presumed that the jury were properly directed in this case, and the evidence detailed in the depositions taken under a commission, used at the trial and now before us, is such, that I am satisfied with the conclusion to which the jury have arrived. Whilst due diligence is to be used by the holders of notes, care is also to be taken that we do not exact too much. It is not every possible exertion that is to be made, but such as a prudent and diligent man would naturally use under like circumstances.

I am of opinion that the verdict should not be disturbed, and that the rule to show cause should be discharged.

Hobjíblower, C. J.

I entirely concur in the opinion delivered by Justice Carpenter, upon each of the points taken and discussed in this cause. The great object and aim of courts of justice are, or should be, to reach the truth in every ease • but if we refuse to search for it, where perhaps it can alone be found, merely because it is possible, that we may find it mixed with some alloy, we may often be driven to the painful necessity of rendering judgment for or against a party, under strong apprehensions that we are doing injustice. Objections to witnesses, on the ground of interest, except in cases where the interest is direct and immediate, generally have their origin in a desire to keep out the truth. In my opinion, the decision in the case of Bent v. Baker, 3 T. R. 27, was an era in the history of the law, upon this subject, that has done more for the advancement of justice than almost any other modification of the rules of evidence to be found in our books.

Whitehead, J.

The only serious question, upon this application for a new trial, is, whether Baker, standing in the relation he does to the parties, as the endorser of the notes in controversy, is a competent witness for the plaintiff, without a release, to prove the execution of the notes and endorsements, and other facts necessary to fix the liability of the defendant as an endorser.

As his testimony does not impeach or invalidate the notes, if he is disqualified, it must be on the ground of interest. By the present well settled rule excluding a witness on this ground, he must either gain or lose by the direct legal operation and effect of the judgment, or the record must be legal evidence either for or against him, in some other action, Greenleaf’s Ev. 434, Sec. 390. An endorser has not such a direct, certain interest in the event of the suit, as to disqualify him; nor can the record be given in evidence against him in another action. His interest is contingent only, and on this ground he is regarded as a competent witness under the late decisions in England and in this country. See cases collected in Chitty on Bills, 634, 658, and in 5 Wend. 476.

Nevius, J., and Randolph, Í., also concurred.

Rule discharged.

Cited in Howland v. Adrain, 1 Vr. 50.  