
    HARLEY v. EMERICK.
    June 22, 1835.
    
      Rule to show cause why a new trial should not be granted.
    
    In an action by the indorsee of a promissory note against the indorser, the drawer ⅛ not a competent witness for the defendant to prove that when the note was made the indorsee had stipulated not to hold the indorser responsible, and that the note was for the accommodation of the indorsee, unless there be proof aliunde that the indorsee was an original party to the note.
    THIS was an action on a promissory note, drawn by George Emerick, in favour of, and indorsed by the defendant, dated August 18lh, 1832, for 548 dollars 42 cents, at sixty days, duly protested at maturity for non payment.
    At the trial, on the 20th of March 1834, before Judge Barnes, the defendant offered George Emerick, ihe drawer, as a witness to prove that (he name of Augustus Emerick was used in the note, in the first place, at the solicitation and for the accommodation of Francis Harley, to enable him to get a discount, and under a distinct assurance, on the part of Francis Harley, that he did not look to Augustus Emerick, declaring the note to be merely for his own accommodation.
    The plaintiff’s counsel objected to the witness ; the judge allowed him,to be sworn, and the witness having proved the matters alleged, there was a verdict for the defendant.
    The plaintiff’s counsel obtained a rule to show cause why anew trial should not be granted, upon the ground of the alleged incotn-petency of the witness.
    
      I. Norris, for plaintiff.
    
      Keemlé, for defendant.
    Authorities cited on the argument: Jones v. Brooks, 4 Taunt. 464; Griffith v. Reeford, 1 Rawls’s Rep. 196 ; 16 Johns. Rep. 70; 2 Stark, on Ev. 300 ; Walton v. Shelley, 1 T. Rep. 300 ; Bent v. Baker, 3 T. Rep. 35; 9 Serg. & Rawle 229 ; 1 Peake's N P. R. 10, 117; Jordain v. Lathlom, 7 T. Rep. 601; Stille v. Lynch, 2 Dali. Rep. 194; Pleasantsv. Pemberton, Ibid. 196; Commonwealth «.Ross, ibid. 239; Shaw». Wallace, 2 Yeates Rep. 17; Baring». Shipper), 2 Binn. Rep. 165; M’Ferran v. Powers, 1 Serg. & Rawle 102 ; Baird v. Cochrane, 4 Serg. & Rawle 327; Heberton v. Cassel, 6 Serg. & Rawle 113; Bank of Montgomery v. Walker, 9 Serg. & Rawle 229 ; Bank of Pennsylvania v. M’Callmonf, 4 Rawle's Rep. 308 ; 1 Phillip's Ev., 3d edil., note 35 ; Wilson ». Lenox, 1 Cranch’s Rep. 201 ; United States v. l)unn, 6 Peters's Rep. 51 ; Bank of Metrop. v. Jones, 8 Peters's Iiep. 12 ; Chitly on Bills {edit, of 1835) 654; 6 Mass. Rep. 430 ; 7 Mass. Rep. 470; 14 Mass. Rep. 303; 11 Johns. Rep. 176; Stafford». Rice, 5 Cowen's Rep. 23 ; Hill v. Ely, 5 Serg. & Rawle 363 ; 3 Wash. C. C, Rep. 405.
   The opinion of the Court was delivered by

Pettit, President.

The testimony was therefore improperly received, and a new trial is awarded.

This decision rests entirely upon the authority of the case of Griffith v. Reeford ; for though the opinion of the supreme court was delivered by the chief justice in but a few words, and was dissented from by two of the judges, yet it is altogether obligatory upon this court. Were we at liberty to speculate upon the subject, we might be inclined to express a desire to see the law settled in this commercial community, upon the principle now recognised as part of the mercantile law of England and New York, that nothing but an actual interest in the witness (when not infamous) shall exclude him: the rights of a bona fide holder of negotiable paper without notice being protected upon the ground that any thing showing that the note was originally different from what it purporls to be as business paper, would exhibit a fraud, and be therefore inoperative as to him.

Rule absolute, 
      
       See Gest v. Espy, 2 Watts’s Rip, 268,reported after this decision was made.
     