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Starkweather v. Mathews

2 Hill & Den. 131 Court N.Y. Sup. Ct. English

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p. 131
Starkweather vs. Mathews and others.

Headnote

In an action against the maker of a note and his accommodation endorsers, to which the defence was usury; held, that the former, upon being released from all costs and charges on account of the suit, was a competent witness for the latter.
It is not a ground for excluding a witness, whose legal interest is prima fade balanced by a liability over, that possibly he may have a better defence as against the adverse party, than the one by whom he is called.
Assumpsit, tried before Dayton, C. Judge, at the Erie circuit, in January, 1840. The action was on a promissory note made by Mathews, and endorsed for his accommodation by Goodrich & Stebbins, the other defendants. The defence was usury; and the endorsers, after releasing the maker from all costs and charges on account of the suit, called him as a witness. The judge admitted him, and the plaintiff excepted. Yerdict for defendants.
A. Gardner, for plaintiff.
M. Fillmore, for defendants.

The release rendered the- maker a competent witness for his accommodation endorsers. If the defence failed, the witness would only be answerable to the endorsers for the amount of the note—not for an indemnity; and if the defence prevailed, he would still be liable, as maker, to the plaintiff. His interest was balanced.

p. 132
Gardner said, he thought the interest was not balanced. If the endorsers are defeated and have to pay the note, the witness will be absolutely liable to them; whereas in an action against him by the plaintiff, he can set up the defence of usury; and so he is in a better condition by defeating a recovery against the endorsers.

When the witness was called, he was under an apparent legal liability both ways—he was answerable both to the holder and endorsers of the note; and .the possibility .that he might have a better defence against the one than against the other, if it can be regarded as an interest, is too remote and contingent to exclude a witness.

New trial denied.[1]

(a) (a) See Hubbly v. Brown, (16 John. JR. 70.)