
    HEATH adsm. EVERSON ET AL.
    In Case. On Rule to show cause, &c.
    A disinterested indorser of a promissory note, is a competent witness to prove the usurious transfer of the note.
    
      Halsted, in support of rule.
    
      Frelinghuysen, contra.
   Opinion of the Court, delivered by

Hornblower, C. J.

This was an action on a promissory note made by the defendant, payable to John Drake, and indorsed by him to Amos W. Condit and by him indorsed to the plaintiffs. On the trial of the cause, Drake was called by the defendant, as a witness, to prove that the note in question was indorsed by him, at the request and for the accommodation of the defendant, that it was made without any consideration, and for the express purpose of raising money upon it for the use of the defendant: and further that he, Drake, in pursuance of a previous arrangement to that effect, had indorsed the note to Amos W. Condit, at a discount exceeding the legal interest. The Judge rejected the witness, upon the ground that an indorser was not a competent witness to prove the facts proposed to be proved by him.

It is conceded that if the transaction was, as the defendant offered to prove, it was usurious, and that no recovery could be had upon the note, by the plaintiffs, or by any other person claiming under the indorsement of Amos W. Condit, against the defendant. The only question therefore, is whether Drake, the payee and first indorser of the note, was a legal and competent witness ? The decision of this Cou-rt in the case of Freeman adsm. Brittin, (ante 191) settles this point. A majority of the Court in that case, after a full and elaborate argument, ruled that an indorser or other party to a negotiable instrument, not interested in the event of the suit, is a competent witness to prove usury or any other matter of defence to the action. The verdict in this case, must therefore be set aside, and the rule to show cause be made absolute. The costs to abide the event of the suit.

Verdict set aside. Buie for nevj trial absolute.  