Schley v. Merritt

Bartol, C. J., delivered the opinion of the Court. This suit was instituted by the appellees to recover from the appellant, the amount of a promissory note* ³⁵⁸ drawn by George W. P. Smith, and endorsed by James Higgins the appellant’s testator. . The defence was, that there was not sufficient notice of the dishonor of the note, to bind the appellant; and the Court below in refusing the second prayer of the appellees, and granting the first prayer of the appellant, ruled that question in her favor : it does not, therefore, properly arise on this appeal, and is not material to be decided. The bills of exceptions present two questions for our decision: First. — Whether Smith, the drawer of the note, was a competent witness for the appellees, to prove the facts stated in the first bill of exceptions, and second; whether the facts testified to by him, and stated in the appellees’ first prayer, were sufficient to bind Higgins’ executrix to pay the note, witho.ut notice of demand and non-payment.

First. — The competency of the witness Smith does not depend in any manner upon the construction of the Act-of 1868, ch., 116. In a suit upon a promissory note by the endorsee against the endorser, the drawer has always been held to be a competent witness for the plaintiff, not having any. interest in the event of the suit which would disqualify him ; his testimony could not tend in any manner to exonerate himself; for he still remains liable to the holder of the note ; and is answerable over to the endorser, in case judgment has been recovered against the latter, and paid by him. No authorities need be cited for this familiar rule of evidence; it was conceded by the appellant’s counsel in the argument. But it was contended that the witness was incompeteiit to testify to the particular facts enumerated in the exception because it is supposed they tended to relieve himself from his primary liability upon the note, and to fix it upon Higgins the endorser.

Such however, could not in our opinion, .be the effect of his testimony. If the judgment ³⁵⁹ recovered against the appellant in this case be paid by her, she would have a right of action against the witness, as drawer of the note; the judgment would be evidence of his liability, and fix its amount; and in a suit against him, he could not avail himself for his defence, of the testimony given by him in the present suit, but would be compelled to estabish his defence by independent, legal and competent testimony. A question very similar to this, arose in Bank of Columbia vs. Magruder, 6 H. & J., 172 , where objection was made to the competency of George Magruder, the drawer of the note, as a witness for the plaintiff in a suit by the endorsee against the administratrix of the endorser. The testimony offered by the witness was “ that at the time the note was drawn and endorsed, the intestate was indebted to him (the maker) in a large sum of money, which though not exactly liquidated between them, was believed by them both to be fully equal to the amount of the note, and that it was agreed between them that the note should be offered for discount at the Bank of Columbia, and the proceeds taken by the witness on account of the debt so due to him by the intestate ; and that the intestate should have all the time to pay the note that the bank would allow him.” The Court decided that the witness was competent to give the testimony offered.

In noticing the objection, Judge Earle said, (p. 178,) “Should the case be established on his testimony against the administratrix, and the principal, interest and costs recovered of her, she will have her remedy against him as drawer, and it is not easy to perceive how the evidence given by him, or the verdict founded on it, could any way benefit him in the defence he may please to set up to her action. If the account he has spoken of, is used in bar of her suit, it must be supported by competent testimony, wholly ³⁶⁰ unconnected with his narrative concerning the original negotiation between him and the endorser ; and he can have no advantages in such defence, which he would not have in an action instituted against the administratrix on the same account. A recovery in this cause against the