The opinion of the Court was delivered by
It is not necessary to decide the question, how far the endorser is bound to warrant the genuineness of the maker’s signature, and therefore not a competent witness to prove it; because we are of opinion, that there is another reason why the witness is directly interested in the event of this suit. That is, that if the plaintiff recover, the witness may, by paying the amount of debt, interest and costs to the plaintiff, demand from him an assignment of the judgment. This right may be considered, under the decisions of this Court, as a matter of courseand one which the Court below would enforce by rule. In Burns v. The Huntingdon Bank, (1 Penn. Rep. 395,) this power was exercised in favour of an endorser who had paid half the amount of the note, against persons who had become securities for the maker for a stay of execution.
On the question as to the extent of the saving clause in the act of limitations, we think the opinion of the Court below right. Our act of assembly is copied nearly verbatim from the English statute; and the construction of the latter had been previously settled by judicial decisions. It is presumable, that our legislature were acquainted with this construction, and meant to adopt it. If the point were now open to discussion, it seems to be a just and reasonable interpretation of the statute, according to its spirit and the general design of its provisions.
Judgment reversed, and a venire facias de novo awarded.