
    James Bird vs. Solomon Cole.
    In a suit by the indorsee against the indorser of a promissory note indorsed for the accommodation of the maker, the maker is not a competent witness for the indorser, without a release.
    Assumpsit by the indorsee of a promissory note for $190, made by John R. Case to the defendant, and by him indorsed, dated April 29th 1840, and payable in 12 months.
    At the trial in the court of common pleas, the making and indorsement of the note, the presentment to the maker at maturity, and notice of non-payment, were admitted. The defendant offered the testimony of said Case, the maker of the note, contained in a deposition. The plaintiff objected to the admission of the testimony, on two grounds; 1st, that the facts, thus sought to be proved, did not constitute a defence; and 2d, that Case was not a competent witness, without a release from the defendant. The court excluded the testimony, and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.
    The statement deposed to by Case was as follows: “ The note, having been first indorsed in blank by Solomon Cole, the defendant, was made by me for a debt due from me to Bird & Beardsley; and the time in which I was to pay said note was 18 months. Bird stated to me that he could not use a note made on that length of time, and wished me to make a note on one year’s time. I consented to make the note at 12 months, on condition that if it was not in my power to pay it at the expiration of that time, I should have the privilege of renewing it for 6 months longer. Some 20 days before the note fell due, I called on Bird, in the city of N. York, and told him I was making efforts to raise money, and if I could pay him that note, at the time it fell due, 1 would do so, and wished him to send it to a friend of his, Mr. Lee of Troy, so that, if I could not pay it, I might have the privilege of renewing it, according to the original understanding. When the note became due, it was not in my power to pay it. Mr. Lee called on me with the note, and demanded payment, as the agent of Bird. I stated to him the conditions upon which the note was given, and tendered to him a new note for the same sum, including the interest, for 6 months, indorsed by Solomon Cole. He said he was not authorized to receive said new note. Previous to making the first note I told Bird that I was not at liberty to use Mr. Cole as an indorser for a less time than 18 months, and that I had received from Mr. Cole instructions to that effect. Mr. Cole did not know of my using his name on this paper for a less time than 18 months.”
    
      Bishop, for the defendant.
    As the plaintiff knew, when he received the note, that the maker had no authority to make such a note, the rule, that one who has given currency to a note shall not impeach it in the indorsee’s hands, does not apply to this case. That rule applies to innocent holders. See Winton v Saidler, 3 Johns. Cas. 185. TuthiU v. Davis, 20 Johns. 287, Myers v. Palmer, 18 Johns. 167. Fox v. Whitney, 16 Mass. 118.
    
      G. J. Tucker, for the plaintiff.
    The deponent, aside from his interest in the event of the suit, was incompetent, on the ground of policy. Churchill v. Suter, 4 Mass. 156. Deering v. Sawtel, 4 Greenl. 191. Chandler v. Morton, 5 Greenl. 374 
      Adams v. Carver, 6 Greenl. 390. He was also interested Peirce v. Butler, 14 Mass. 303. Greenl. on Ev. § 401. And he was also incompetent because he was agent of the defendant in filling up the note, and cannot testify that he violated his instructions. Greenl. on Ev. <§>417. The two last grounds of incompetency might be removed by a release; but not the first.
   The opinion of the court was given at May term 1844.

Dewey, J.

The principle seems to be directly stated, in Peirce v. Butler, 14 Mass. 303, that in a suit by the indorsee against the indorser of a promissory note, the maker is not a competent witness in behalf of the indorser, unless first released from all liability to him. This seems to be a rule established independently of the supposed effect of the principle, that a party cannot be admitted to testify to facts tending to defeat a negotiable instrument to which he has given currency. The doctrine does not, therefore, rest on the authority of Churchill v. Suter, 4 Mass. 156; (a decision which is now understood to be restricted to the immediate point there presented;) but in a case like the present, where the witness, who is offered, is the maker of a note upon which a suit has been instituted against one who is a mere accommodation indorser, at the instance of the maker, it is a case of direct interest in the witness; as the in-dorser is to be regarded as a surety, and would be entitled to recover of the maker any sum that might be recovered of such indorser, with the cost he might be compelled to pay. Hubbly v. Brown, 16 Johns. 70. Jones v. Brooke, 4 Taunt. 464. Greenl. on Ev. § 401. The same question has lately come before the supreme court of Maine, in the case of Southard v. Wilson, 8 Shepley, 496; and it was held that “ the maker of the note declared upon, for whose accommodation the defendant had indorsed it, without a release from the defendant, was an incompetent witness for him.” Upon this question, thus limited to the case of a maker of a note, offered as a witness by an accommodation indorser, the decisions, it is believed, are entirely uniform.

The present case presents the objection to the competency of the witness in a peculiarly strong light. Here, upon the facts proposed to be proved by the witness, the witness himself had grossly abused the trust reposed in him by the defendant, when he gave the witness his name in blank. With the full understanding and knowledge of his restricted power in the use of the defendant’s name, he filled up the blank paper with a contract, different, in its terms, from that which he was authorized to make, and, by the abuse of the trust reposed in him by the indorser, has rendered himself responsible for all costs and damages incurred by the defendant. It is quite clear, therefore, that the witness, here offered, had a direct interest in the event of the suit, and was properly excluded.

Exceptions overruled.  