
    The Farmers and Mechanics’ Bank of Michigan vs. Griffith, impleaded with Brown.
    In an action by the endorsee of a promissory note against the maker, the endorser is a competent witness for the plaintiff.
    Assumpsit, tried at the New-York circuit, in January, 1842, before Kent, C. Judge. The action was brought against the defendants as makers of a promissory note payable to the order of and endorsed by B. 0. Hoyt. The defendants had formerly done business under the firm name of John Griffith & Co., but the partnership was dissolved before the date of the note in question. It was signed by the defendant Brown, in this form, “ For John Griffith & Co., H. Brown,” and was given to the plaintiffs in renewal of paper made by the firm before dissolution. Griffith insisted that he was not liable on the note; and the main question at the trial was, whether he had authorized Brown to use the name of the firm in the renewal of its paper. Hoyt, the endorser of the note, was examined as a witness for the plaintiffs, and testified to an admission by Griffith that Brown was authorized to sign the note, and also that the signature was in Brown’s handwriting. The counsel for Griffith objected that Hoyt was incompetent on the ground of interest; but the judge overruled the objection. Exception. Verdict in favor of the plaintiffs. The defendant Griffith now moved for a new trial on a bill of exceptions.
    
      C. Van Santvoord, for the defendant Griffith,
    insisted that Hoyt was incompetent on the ground of interest. He cited and commented on Herrick v. Whitney, (15 John. Rep. 240;) Shaver v. Ehle, (16 id. 201;) Murray v. Judah, (6 Cowen, 484, 491;) Heermance v. Vernoy, (6 John. Rep. 5;) Jackson v. Hallenback, (2 id. 394;) Swift v. Dean, (6 id. 523;) Smith v. Chambers, (4 Esp. Rep. 164;) Baskins v. Wilson, (6 Cowen, 471;) Barretto v. Snowden, (5 Wend. 181;) King v. Baldwin, (2 Johns. Ch. Rep. 554;) Hayes v. Ward, (4 id. 123;) 1 Phill. 
      
      Ev. 63, 7th Bond. ed.; Cowen & Hill’s Notes to Phill. Ev. 119; Rogers v. Hosack’s executors, (18 Wend. 319;) Morton v. Naylor, (1 Hill, 583.)
    
      J. W. Gerard, for the plaintiffs,
    relied principally upon Barretto v. Snowden, (5 Wend. 181.)
   By the Court, Nelson, Ch. J.

It must be conceded that some of the cases in this court go far to sustain the objection urged against the competency of Hoyt; particularly Baskins v. Wilson, (6 Cowen, 471,) which was founded upon Herrick v. Whitney, (15 John. Rep. 24,) and Shaver v. Ehle, (16 id. 201.) In the last two cases the witness had transferred the note without recourse; but the court said he might nevertheless be made liable as warrantor of the genuineness of the paper, and that he was therefore interested. In Baskins v. Wilson Mr. Justice Sutherland expresses his dissatisfaction with this doctrine, but is inclined to concede the interest where the witness is liable as endorser in the usual way.

In Barretto v. Snowden (5 Wend. 181,) the execution of the note having been admitted, the endorser was held competent to prove it free from usury, there being no affirmative proof that he had been charged by notice of dishonor; and in that case Savage, Ch. J., who delivered the opinion of the court, observed: “Perhaps it might be doubted whether the witness ought to be excluded, even if his liability as endorser had been shown; for, by fixing the debt upon the defendant, he does not discharge himself. If he is liable, the plaintiff may prosecute him as well as the defendant, and prefer to take execution against him; or the maker maybe insolvent; so that his interest would be contingent.”

On this ground the witness is uniformly admitted at the present day in England, and the doctrine appears to me sound and unanswerable. It has its foundation in a principle of evidence upon which witnesses thus contingently and remotely interested are daily admitted as competent. (Chitty On Bills, 634, 658, ed. of 1839, and the cases there cited; 2 Stark. Ev. 180, ed. of 1834; Bayley On Bills, 372; Cowen & Hill’s Notes to Phill. Ev., 131, et seq.; Cropley v. Corner, 4 Carr & Payne, 21; Saund. Pl. & Ev. 289; 2 Phill. Ev. 20, 7th Bond, ed.)

New trial denied.  