9 Port. 225 | Ala. | 1839
It is difficult to conceive for what cause the evidence of the maker of the note was excluded, in an action against the endorser: surely not because he was interested in the event of the suit, for it was entirely immaterial to him what judgment the court rendered. If the endorsee was unsuccessful, he might immediately resort to the maker, who could not set up in his defence, the verdict and judgment in favor of the endorser. So, if the endorsee were to recover of the endorser, the latter might directly charge the maker; and, in either event, the interest of the witness would be balanced.
There is no pretence for excluding the maker as a witness in such a case, on the ground that he is a party to the paper in suit. By subscribing the note, he admits an indebtedness — prima facie only — but even this admission does not extend to the endorser: the endorsement is a post factum act.
In every view in which the case has presented itself to us, we are persuaded that the Circuit court erred in the rejection of the evidence, and the error is manifested by authorities. so direct and ample, that we will content ourselves with a mere reference to them, without adding any further reasoning of our own — (Kennon vs. McRea, 2 Porter’s R. 389; Standefer vs. Chisholm, 1 Stew. & Por. R. 449; Todd vs. Stafford, 1 Stew. R. 199; Bent vs. Baker, 3 T. R. 27; Jourdaine vs. Lashbrook, 7 T. R. 601;
The judgment must be reversed, and the case remanded.
