
    John Peirce versus William Butler.
    Of demand on the makers, and notice to the endorsers, of promissory notes.
    The maker of a promissory note is not a competent witness for the endorser, in an action by the endorsee against the endorser, unless released.
    [The usage of the bank, where a note is made payable, as to demand and notice, is not binding on the holder, unless he be cognizant of it; in which case it is binding on him. The words >u for renewal,” written near the bottom of the note in the hand-writing of one of the makers, does not destroy the negotiability of the note, or necessarily affect the holder with such notice that the burden of proof is put upon him to show that he is a bond fide holder. A party who puts in evidence the deposition of a witness, cannot afterwards put in evidence, at the same trial, any other writing of the witness under his hand to contradict his testimony.—Ed.]
    This was an action of assumpsit upon a promissory note, dated January 9, 1813, made and signed by F. &f C. Dickinson, for 1000 dollars, payable to the defendant or his order, in six months after the date, at the Hartford Bank, and endorsed by the defendant.
    At the trial of the cause, which was had on the general issue, before Jackson, J., at the last May term in this county, it appeared that the defendant and the said F. &f C. Dickinson lived at Northampton when the note was made. The plaintiff then lived at Hartford, in the state of Connecticut, but afterwards, and before the note became payable, had removed to the state of New York. The words “ for renewal ” were written near the bottom of the note, at the left side ; and it appeared that they were in the hand-writing of the said F. Dickinson, and not in the same writing as the body of the note.
    The plaintiff,
    to prove a demand of payment on the makers, and notice of non-payment to the defendant, produced two depositions of one N. Knox, the cashier of * the Hartford Bank, in the year 1813 ; and to prove what had been the usage and course of business at the said bank, and also to prove the demand on the said makers of the note.
    [The said Knox testified that the note sued in this action was left for collection at the said bank a few weeks before its maturity; that, on the day it fell due, payment was demanded at the bank, but not made ; and that, on the same day, after the bank closed, it was delivered to George Beach, as agent to Peirce, the endorsee. In the second deposition, he stated that the practice of the bank was to give notice on all notes left for collection, in the same manner as on notes discounted by the bank, when the parties live in the city, and the days of grace the same, viz., three; that it was not the practice in all cases to give notice to endorsers out of the city on notes lodged for collection, though it was frequently done, and always when requested by the person lodging the notes. When not requested, it was left to the lodger of the note to give the notice. It was generally the practice of the bank to give notice on discounted notes, to the drawer and endorser, on or before the day on which the note became due, in cases where either of the parties had failed; and then to give notice again to the endorser on the evening of the last of the three days of grace, if the note was not paid.]
    He also produced two depositions of one George Beach, and one of one John Law, and another of one John Bahcock, to prove due notice to the defendant as endorser. The defendant produced on this point another deposition of the said George Beach, and contended that he was not duly authorized, as the agent of the plaintiff, to give notice in his behalf to the defendant. The evidence on the point of notice was left to the jury, who decided that the said Beach was duly authorized, as such agent, to give the notice to the defendant.
    The counsel for the defendant also wished to argue to the jury the question whether, upon the whole of the said evidence, it appeared that the demand on the said makers of the note, and the notice to the defendant, were in other respects sufficient to bind the defendant. * But the judge informed the counsel that this appeared to him unnecessary, because he should instruct the jury that, if they believed the facts testified by the said Knox, Beach, Law, and Bahcock, on this point, they ought to find that the said demand and notice were in those respects legal and sufficient. As there was no evidence to contradict the above-mentioned deponents on this point, it was not argued to the jury; and the judge instructed them in the manner above-mentioned.
    The defendant then contended that the said note was endorsed by him for the accommodation of the said makers without any consideration ; that it was intended to be given in exchange or renewal for some other note signed and endorsed in like manner; and he produced evidence tending to prove that the said F. Sf C. Dickinson failed in business in the latter part of March, 1813, and that the note now in suit was at that time in the hands of one Thomas Lloyd, who had been the broker and agent of the said F. Sf C. Dickinson, in Hartford ; that it must have been negotiated and delivered by said Lloyd to the plaintiff (if it ever was so delivered) after the said failure was generally known in Hartford 
      particularly at the Hartford Bank. He contended that the said words, “ for renewal,” so written on the note, with other circumstances proved, or to be inferred from the evidence in the case, must have given sufficient notice to the plaintiff that the said Lloyd had no right to sell and dispose of the note to him in the manner aforesaid ; and he proved that the said words, “ for renewal,” when so written on a note, were generally understood to indicate that .he note was. made and intended to meet, or be substituted for, some preceding note, although they might not always imply that such preceding note was made and endorsed by all the same per sons whose names appeared on the note to be substituted. Upon the suggestion of the defendant’s counsel that the plaintiff, under these circumstances, could not recover, without showing himself to be a bona fide holder of the note, the judge intimated that this was a question of fact, in which the Court could not undertake to judge * of the weight of evidence. Whereupon the defendant also produced the deposition of the said Lloyd, originally taken in explanation of a deposition given by him at the request of the plaintiff; but which latter, although filed, was not used by either party at the trial. In the deposition thus produced by the defendant, the deponent states the manher in which he transferred the said note to the plaintiff, and the consideration therefor.
    The counsel for the defendant wished to argue this point also to the jury ; but the judge informed them that the effect of the said words, “ for renewal,” with the usage or understanding proved in relation to them, would be reserved for the consideration of the whole Court; and that it appeared to him unnecessary to argue the other part of this question; because he should instruct the jury that, if they believed the facts testified by the said Lloyd in his said deposition, they ought to find that the said note was duly and legally transferred to the plaintiff; and that there was no objection, on this account, to his recovering in this action. This point was not argued to the jury, and the judge instructed them upon it in manner above mentioned.
    The defendant offered the deposition of the said F. Dickinson, one of the makers of the note; but this was objected to, and rejected."
    The defendant then contended that, if the said Lloyd had taken the said note to his own account, and had negotiated it for his own benefit, as stated by him in his deposition, the note was void by reason of usury in such negotiation between the said Lloyd and the said F. If C. Dickinson. In support of this objection, the defendant stated that, in the account current between those parties, which is mentioned in said Lloyds deposition, the former had charged the latter with interest at the rate of more than six per cent, on moneys advanced by him for them; and that this rate, if retained by the said Lloyd, as stated in his deposition, was retained towards the amount due to him on that account.
    To prove this fact, and also to prove that the note against the defendant and the said F. &/■ C. Dickinson, * which was taken up by Lloyd in January, 1813, as stated in his deposition, was substantially paid or considered by Lloyd himself, in February, 1813, to be paid by the makers, the defendant offered a paper, proved to be in the handwriting of Lloyd, and containing charges and credits, and striking a balance of 3205 dollars. This paper was in the form of a com mon account current, but contained no names of the debtor or creditor therein, and had no signature at the foot thereof; the columns were not added up, and it had no date at the bottom, as of an account settled ; but credit was given under date of February 5, 1813, for a note for the said balance of 3205 dollars. The defendant further proved that the said Lloyd had recovered judgment against the said F. C. Dickinson on a note given by them to him on the 5th of February, 1813, for 3205 dollars ; and he further contended that it appeared, from this account or paper, coupled with the said deposition of Lloyd and the said judgment, that the said Lloyd, at the time of the failure of the said F. C. Dickinson, had, in substance, received payment from them of the note taken up by him in January, 1813 ; or, at least, had waived any claim to hold this note, as security for the money paid on that, and that he had no right to retain or negotiate the note now in suit in manner aforesaid.
    The judge was of opinion that, as the deposition of Lloyd had been introduced by the defendant, he could not impeach the deponent, nor contradict his testimony by any such paper proved to be his hand-writing; and that, in any other view of the case, this paper was inadmissible in evidence; and it was accordingly rejected.
    The defendant also offered, for the same purpose, and in connection with the paper last mentioned, another paper or account. This was regularly headed as an account current between Lloyd and F. Sf C. Dickinson. It was not written by Lloyd,, nor signed by him, nor by any other person; but there was a memorandum upon it, written with a pencil by Lloyd, connecting it, as the defendant contended, with the other paper. This was also rejected. * These two last papers, and also the depositions before mentioned, were to be referred to, if necessary, in the argu ment oí the cause.
    If the Court should be of opinion that the plaintiff, upon the whole of the case, was not entitled to recover, or that any of the said opinions and directions of the judge were wrong, or that any of the said evidence, so rejected, ought to have been admitted, the verdict which was returned for the plaintiff was to be set aside, and a new trial granted; otherwise the verdict was to stand, and judgment to be entered accordingly.
    
      Strong,
    
    on the part of the defendant, moved for a new trial for a misdirection of the judge; and he contended, in the first place, that the evidence of notice to the defendant of the non-payment of the note was insufficient. The note, by the terms of it, fell due on the 9th of July; yet there was no attempt to give notice until the 12th of the month. The note was not made payable with grace; nor was there proof that, by the law of Connecticut, grace was to be allowed on all notes and bills of exchange. Although it was proved that it was the custom of the Hartford Bank to allow days of grace, yet this could have no effect in the present case, unless a knowledge of the usage was brought home to the defendant, which was not attempted. 
    
    The custom of this bank, with the exceptions stated in Knox’s depositions as to notice where parties had failed, ought to have been referred exclusively to the jury. But the judge construed the depositions, directing the jury that, if they believed the facts as stated in those depositions, the plaintiff’s case on this point was proved. The defendant insists that the whole evidence should have been submitted to the jury without their being limited or restrained by such instructions.
    The usage, if proved, was proved to be to give notice to the maker and endorser on ’or before the day on which the note became due, in cases where either of the parties had failed, and then to give notice again to the endorser on the last of the three days of grace, if the note then remained unpaid. But the evidence in * this case was only that notice was given to the defendant on the day after the last day of grace; so that the plaintiff has not brought himself within the usage.
    The evidence of the object for which the note was created should have been left to the jury. The memorandum “for renewal,” which probably induced the defendant to put his name upon the note, showed that it was solely intended to meet a prior note That note having been paid and taken up by Lloyd, as the agent of the makers, and this within the knowledge of the plaintiff, the note now in question was, so to speak, functus oficio, and ought to have been cancelled; or at least the burden was thereby shifted, and the plaintiff should have been held to prove that he was a bond fide holder of the note, having had it duly and legally assigned to him. 
    
    The deposition of F. Dickinson ought to have been admitted.  He is, at all events, liable to payment of the note, and therefore stands indifferent between the present parties. This is not within the case of Churchill vs. Suter. 
       There the evidence was to show the note void from an original canker, into whose hands soever it might pass. But the evidence here did not go to avoid the note in the hands of a bond fide holder. 
    
    The accounts offered in evidence should have been admitted as part of the res gestee. They went to show that Lloyd had paid the former note, charged its amount to the Dickinsons also, and had settled the account. They would have proved that the note was originally usurious and void. 
    
    The defendant, being merely an accommodation endorser, is chargeable, at the utmost, for no more than the plaintiff has fairly paid. The direction of the judge, on the subject of damages, was therefore wrong. 
    
    
      Mills for the plaintiff.
    
      
       9 Mass. Rep. 157, Lincoln and Kennebeck Bank vs. Page. —11 Mass. Rep. 85 Blanchard vs. Hilliard. — Ibid. 87, in notisy Wentworth vs. Clap.
      
    
    
      
       4 Esp. Rep. 54, Kufh & Al. vs. Watson M. — 1 Campb. Rep. 100, Duncan vs. Scott.-2 Campb. Rep. 574, 596. —10 Johns. Rep. 231, Woodhull vs. Holmes.
      
    
    
      
       1 Esp. Rep. 332, Staples vs. Okines. — 1 Campb. Rep. 246. —10 Johns. Rep. ub sup. — Esp. Dig. 708, Levi vs. Essex.
      
    
    
      
       4 Mass. Rep. 161.
    
    
      
       2 East's Rep. 458, Birt vs. Kershaw.
      
    
    
      
       3 Johns. Cases, 66.
    
    
      
       3 Esp. Rep. 261, Wiffen vs. Roberts. — 7 Johns. 361, Brown vs. Mott.
      
    
   Jackson, J.,

delivered the opinion of the Court. On the first point, which has been argued in this case, we are all of opinion that the direction to the jury, as stated in the report of the trial, was wrong, and that * there must be a new trial.

On examining the depositions referred to in that part of the report, there appears to be no evidence, and, indeed, there is no attempt to prove, that the defendant had any knowledge of the usage and course of business at the Hartford Bank. As the note does not purport to be payable with grace, the demand of payment and notice of non-payment were too late, unless the defendant was bound by that usage.

When this question was first suggested on the present argument, I doubted whether it was open to the defendant. On the trial of the cause, the evidence of.the demand, and of the notice to the defendant, was objected to as insufficient for sundry other reasons, some dr all of which have been again urged on this argument. My impression was, that these were the only points presented in this part of the report; and I was not aware that it had ever been made a question whether the defendant was bound, provided the demand and notice were conformable to the usage and course of business. I have not novv^ any recollection that this point was raised at the trial; but as it is said by the counsel for the defendant that they have always relied on it as material in the defence, and as the language of the report is obviously broad enough to include it, there can be no doubt that the defendant has a right to insist upon it.

As there is to be a new trial, we have thought it proper to express our opinions on the other points that have been argued in this case, in order to prevent further delay and expense to the parties.

In every trial by jury, it is the duty of the judge to decide all questions of law that may arise. When evidence is produced by either party, it is for the jury to say whether they believe the fact which the party attempts to prove by it; and if the material fact is not itself directly proved, but is to be inferred from other facts, it is for the jury to draw that inference. So, when a witness testifies directly to any material fact, which is not rebutted by any evidence on the other side, *it is the province of the jury to decide on the credit to be given to the testimony ; but it is for the judge to declare its legal effect and operation. It is almost always expedient, and it is sometimes necessary, in such a case, for the judge to express his opinion to the counsel; as it not only saves time and trouble to all who are concerned in the trial, but also takes away the occasion of arguing to the jury on a mere question of law, which ought never to be allowed in a civil action. The mistakes of a jury, if they should commit any; on such a question, cannot be easily discovered; whilst those of the judge must be known, and will be readily corrected by the whole Court.

As to the first exception which is mentioned in the report, we are all of opinion that the demand of payment on the promisors, and the notice to the defendant, as stated in the depositions referred to in the report, were in conformity with the usage and course of business at the Hartford Bank, as proved by the same depositions; and were therefore sufficient to bind the defendant, if he had been conusant of that usage.

As to the next point, the defendant’s counsel having produced evidence tending to show that Lloyd, who negotiated the note in question to the plaintiff, could not have recovered judgment upon if against the defendant, and that the plaintiff was probably apprized of those circumstances when he took the note, they contended that the plaintiff could not recover injfiis action, unless he proved that he was a bona fide purchaser and holder of the note. It was obviously a question for the jury, whether those suggestions respecting Lloyd, were true, and how far the knowledge of the facts was brought home to the plaintiff; and if the evidence on this point had stopped there, these questions would have been jeft to the jury But the defendant’s counsel, not thinking it safe or proper to rely on this evidence, produced a deposition of Lloyd, in which he undertakes to state the facts relating to his transfer of the note to the plaintiff. Still it was a question for the jury, whether this statement by Lloyd was true. But as it * was contained in a deposition produced by the defendant him self, his counsel did not undertake to argue against it. We are all satisfied that the facts there stated, if believed by the jury, were sufficient to show that the note was duly transferred to the plaintiff, and that the instruction to the jury was in this particular correct.

We are also of opinion that the words “for renewal,” written at the bottom of the note, did not destroy its negotiability; and that, when taken in connection with Lloyd's deposition, they do not in any degree impair the plaintiff’s right to recover.

The next question relates to the competency of F. Dickinson, one of the makers of the note, as a witness for the defendant in the trial of this action. He was directly interested in the event of this suit, because a verdict against the defendant might be used as evidence in an action by the latter against him. If there has been any uncertainty or diversity in the practice of other courts, there has been none in this; and such witnesses have always been released by the defendant before they were examined by him. In the present case, however, the point rests on much stronger ground. According to the defendant’s statement, this was an accommodation bill, which he endorsed merely as a surety for the makers; and he offers the principal, for whose debt he is sued, to prove that he is not bound to pay it.

The case of Birt vs. Kershaw, which was relied on in the argument, is wholly unlike this. There the witness was an endorser after the defendant, who called him ; and was of course not liable, in any event, to an action by the defendant, in consequence of his being a party to the bill. His supposed interest arose entirely from his having received money of the defendant to pay the debt to the plaintiff; and he was considered, in this respect, as on the footing of any other agent under like circumstances, who is at all events liable to one or other of the parties in the suit, and who therefore stands indifferent between them.

* As to the next point, I was by no means satisfied that the usury, if proved according to the statement of the defendant, would avoid this note. The usury, as alleged, was wholly in other negotiations; and the note was held as a pledge, or rather it was to be applied in discharge of the eventual balance of those negotiations. Now, if any other chattel had been delivered in like manner, and Lloyd, had sold it to the plaintiff, and applied the proceeds of the sale towards the discharge of that balance, it would not be contended that the title of the purchaser could be impeached by reason of usury between the vendor and the former owner of the chattel. ' But, without determining that question, it is clear that the accounts current, which were offered by the defendant, could not be used by him for any purpose. They were not among the res gestee at the time of the negotiation of this note; and therefore they stand on the same footing with any other accounts between Lloyd and the Dickinsons. They could not be used by the defendant to impeach or contradict the testimony of Lloyd, because he was a witness produced by the defendant himself.

New trial ordered 
      
      
         [The mere fact that he was one of the makers of the note did not disqualify the witness. From the authorities, it seems that the witness would have been campe tent, if the endorsement had not been made for his accommodation. — Phil. & Am. 8th. Lond. ed 127. — Charrington vs. Milner, Peake’s C. 6.— Verning vs. Shuttlesworth, Bayley on Bills, 5th ed. 536. — But this rendered him incompetent. •—Jones vs. Brooke, 4 Taunt. 464. — Edmunds vs. Lowe, 8 B. & Cr. 407. — Bottomley vs. Wilson, 3 Starkie, 148. — Hardwicke vs. Blanchard, Gow. 113. — Phil. & Am. 104—125 —Maundrell vs. Kennett, 1 Camp. 408.— Hall vs. Cecil, 6 Bingh. 181.— Townsend vs. Downing, 14 East, 565.— Greely vs. Dow, 2 Met. 176. — Ed.]
     
      
       [It is clearly settled that a party may prove, by other evidence, the truth as to a material fact relevant to the issue in a cause, although it may collaterally affect the credit of his own witness. — Phil, & Am. 8th ed. p. 902, 903, 904.— Bull. JV. P. 297. — Lowe vs. Joliffe, 1 Bl. 365. — Pike vs. Badnaring, 2 Stra. 1096, a.—Alexander vs Gibson, 2 Camp. 556. — Richardson vs. Allan, 2 Stark. N. P. 334. — Ewer vs. Ambrose, 3 B. & Cr. 423. — Bradley vs. Richards, 8 Bingh. 57. — Friedlander vs. The Royal Exchange Assurance Company, 4 B. & Ad. 493. — Wright vs. Beckett, 1 M. & R , N. P. C. 429. — But in this case the substantial ground of objection was that the proof offered was not substantive evidence of the fact which it was offered to prove. — Ewer vs. Ambrose, 3 B. & Cr. 746.—Ed.]
     