
    Timothy Fox and Another, Administrators, versus Aaron Whitney, Administrator.
    [ is competent for an administrator, in an action against him, by the administrator of the promisee of a negotiable note, made by his intestate, to prove such note to have been given upon a usurious consideration.
    A surety in such note is a competent witness to prove such consideration.
    But the defendant administrator is not a competent witness, although the estate of his intestate is insolvent.
    Assumpsit upon a- promissory note, dated March 21st, 1811, for 564 dollars, 54 cents, made by Moses Whitney, * the defendant’s intestate, and payable on demand [*119] with interest to Peter Fox, the plaintiff’s intestate, or his order. Trial upon the general issue before Putnam, J., April term, 1818. The defence was on the ground of usury.
    
      Nathaniel Page was offered as a witness for the defendant;
    and the plaintiffs objected to him, because he had signed the note sued as surety, although not so expressed in the note, and had been sued upon it as his several note; and being a party to the note, it was not competent to him to discredit it. But he was admitted.
    
      Aaron Whitney, the defendant,
    was also called as a witness, and objected to by the plaintiffs. But it appearing that the estate of his intestate xvas represented insolvent; and that he had objected to the allowance of this note, before the commissioners; and that the amount of the judgment, which the plaintiffs might recover, would be added to the claims against the estate of the intestate, and thus that he was not interested, he was admitted.
    It was proved by these witnesses, that the consideration of the note in dispute consisted of a note, which the said Moses and the said Aaron Whitney owed to the said Peter Fox, for 300 dollars, upon which interest had been cast at the rate of 12 per cent., to make up the sum included in the note in dispute; and that the residue of the consideration was a note, which Jason Mead and Eli Dwinmll owed to Peter Fox, which was usurious; but which they procured the defendant’s intestate to assume and pay to the said Peter for them; which he did by including it in the note in question.
    Upon this evidence, the judge directed a verdict for that part only of the note in dispute, which consisted of the debt assumed by the intestate for Mead and Dwinnell; and the verdict so returned xvas «.o be amended by adding to the amount of the damages the sum of 300 dollars, with interest from the date of the nóte, if those wit nesses ought not to have been admitted ; otherwise judgment was to be rendered on the verdict-as the same was returned.
    [ * 120 ]
    
      * Lincoln, for the defendant,
    contended that the defendant was well admitted as a witness . In the case of Scars vs. Dillingham & Al., the only reason on which it was ruled that Dillingham was incompetent was, that he was liable for the costs of the suit out of his own pocket, in case the decision should be against him. But the same objection does not lie in the present case, for the defendant has a right to charge the costs to the estate of his intestate. Here, particularly, the estate being insolvent, he can have no interest whatever.
    As to Page's competency, this is not like the case of Churchill vs. Suter 
      , or that of Jones vs. Coolidge 
      , in which an innocent endorsee might be affected; in this case the action is between the promiser and the promisee, and the mischief, intended to be guarded against in those cases, cannot arise here .
    
      Shepley, for the plaintiffs.
    The case of Walton vs. Shelley 
       lays down the broad rule, that a person is not a competent witness to impeach a security which he has given, although he is not interested in the event of the suit. Later decisions of this Court have narrowed the rule, and considered it applicable only to negotiable securities. Thus' narrowed, it is now applicable to the case at bar, and excludes Page as a witness.
    The defendant is incompetent, being a party to the suit; and although he might charge any costs he might pay, to the estate of his intestate, yet should he recover costs, he will put them in his own pocket, and never account for them. And indeed if an administrator improperly engages in the prosecution or defence of a suit, he will not be allowed to charge the costs to the estate he represents .
    
      
      
        Peak’s L. of Evid. 102, 107.
    
    
      
       4 Mass. Rep. 162.
    
    
      
       7 Mass. Rep. 199.
    
    
      
       11 Mass. Rep. 375. Ibid. 498. —Peak on Evid. 102, 107.
    
    
      
       1 D. & E. 296
    
    
      
       4 Mass. Rep. 354. —11 Mass. Rep. 527. -7 Mass. Rep. 398. -7 D. & E. 664.
    
   Parker, C. J.,

delivered the opinion of the Court. The rule, by which' parties to notes are excluded from being witnesses, to discredit the security to which they have given currency, does not apply to the case before us. Such witnesses are excluded [*121] on the ground of policy, because * in fact their testimony goes to contradict their own acts. It applies only to the case of negotiable securities, as in Churchill vs. Suter, which has been cited.' There it was decided that he who gives or endorses a negotiable note, by which act he gives a currency and credit to it, shall not be permitted to disaffirm his own doings, by showing that the act itself was illegal, to the prejudice of an innocent holder of the note .

The principles, on which that decision rests, do not apply to the present case ; because the note, although negotiable in its form, was not in fact negotiated, but remains in the hands of the original promisee, and the suit is now brought by his administrator. No currency has been given to the note, and there is no innocent endorsee to be prejudiced. The contest is between the original parties to the illegal bargain; and the competency of the witness must depend altogether upon the question, whether he is interested in the event of the suit or not. Now it is plain that Page is not thus interested ; for the verdict in this action cannot be used in a suit against him ; and he cannot be held to contribute, because it is a fact agreed that he signed the note only as surety.

But the administrator himself was improperly admitted as a witness, on the general rule, that no party to a cause can testify in it. It is true, he may not eventually be interested in it; but he is liable in the first instance for the costs. It has heretofore been thought sufficient to exclude such testimony; that the witness is a party on record ; and we see no reason for relaxing the rule. The cases referred to in Peake are exceptions, which prove the general rule, that a party in a cause cannot be a witness .

New trial ordered. 
      
       [The Court, in the case of Churchill vs. Suter, were misled by a Nisi Prius decision which has been overruled. Jordame vs. Lashbroke, 7 D. & E. 601. —Rich vs. Topping & Al. Peake, 224. N. P. C. 1 Esp. N. P. C. 176. —Brand vs. Ackerman, 5 Esp. 119. —Kent vs. Lowden, 1 Camp. 177. —Chitty, 6th ed. 413. —Peake, Ev. 255. —2 Stark, Ev. 298. —2 Phil. Ev. 7th ed. 20; and see note to Worcester vs. Eaton, 11 Mass. 375, and the cases there cited.—Ed.]
     
      
      
        [Sears vs. Dillingham, 12 Mass. 360. —Nason vs. Thatcher & Al. 7 Mass. 398. A party defendant to a suit, who is not interested in the event of the suit as to other parties, may, after suffering judgment by default, be a competent witness. —Worrall vs. Jones, 5 M. & P. 244. -7 Bing. 395.—Ed.]
     