| Pa. | May 15, 1866
The opinion of the court was delivered, May 15th 1866, by
The suit was by the endorsee against the endorser of a promissory note made by T. S. Griswold and Erastus N. Griswold, on the 9th of May 1860, to the order of William Braine, at two years, and endorsed by Braine.
The only bill signed at the trial, and the only error alleged in this court, was to the admission of Delos Rockwell as a witness on the pai't of the plaintiff in error. From the examination of the •witness on his voir dire, it appeared that .he was an attorney at law; that early in May 1862 this note was placed in his hands for collection by Mr. Edwin Spalding, but as the property of A. P. Spalding; that on the 9th of May 1862 Edwin Spalding introduced him to the endorser, William Braine, at Leonard’s store, in Troy ; that at Braine’s request the note was delivered to him to take to Union, to deliver to Justice Barber,, in order that one of the drawers, the only one who was solvent, might be sued immediately ; that Braine caused the note to be sued on the 10th, and on the Í2th of May Rockwell mailed a letter to Braine, informing him that the note had not been paid, and that he (Braine) would be held as endorser.
The objection to the witness was that by neglect to present the note for payment at its maturity, and to have it protested, he had made himself personally responsible for it to the plaintiff, and was therefore incompetent to testify in relief of his own liability.
Two answers to this objection seem to us conclusive. In the first place, if there was any resultant liability on the part of the witness, it was too remote and contingent to disqualify him. An attorney may indeed make himself liable to his client for neglect of a professional duty which he has undertaken to perform, but the bare possibility that an action may be brought against him is no objection to his competency. It is only a fixed vested interest, that disqualifies. The true test of the interest of a witness
Now an attorney employed to collect a note by an agent of the owner is bound to use reasonable skill and diligence, and for want of these would be liable to the owner of the paper, but there is no obligation of indemnity. His liability sounds in tort and is remote and contingent. If it be a part of his professional duty to see to the protest of paper that matures in his hands, and he neglects this duty, still he has no such direct and immediate interest in a suit against the endorser as disqualifies him, however it may affect his credibility.
But in the next place, the endorser in this instance waived all necessity of a presentation and protest of the paper, by taking it into his own possession and undertaking the collection of it himself. He had full notice that demand was made of the only solvent drawer, for he instituted suit against him the very day after* the note fell due, and he knew the money was not paid. How could he expect the attorney to protest paper of which he had the possession, and what motive was there for a protest when the endorser had informed himself of the only facts of which a protest would have given him notice ?
If the witness was or could be liable even to his client for neglect of professional duty, this endorser had estopped himself from alleging such liability by his officious interference with the ordinary course of business. As to him the attorney was relieved from the duties which he had assumed, and therefore the defendant cannot set up these duties as grounds of exclusion.
The judgment is affirmed.