17 Johns. 176 | N.Y. Sup. Ct. | 1819
delivered the opinion of the court. The material points in the cause are, whether the note in question was fraudently put into circulation? whether the plaintiffs are bona fide holders of it ? and whether the confession of one of the plaintiffs, that the note was usuriously discounted, was admissible evidence ? There is no force in the objections, that the indulgence granted by the plaintiffs to Wood, discharged the defendant, or as to the overruling the proof, of what a witness had sworn on a former trial, as to usury in the transaction. It is decisive, as to these points, that mere delay to sue does not affect the rights of the creditor even against a surety ; and that to entitle a party to give in evidence the testimony of a witness on a former trial, it must be shown, that the witness is dead; and this was not shown or pretended,
The note in question was a renewal of one which had been drawn by Wood, and endorsed by the defendant. The first note was intended to be discounted at the Newburgh, bank, but was discounted by the plaintiffs; and it appeared, by the testimony of Smith, an endorser of the note, subsequent to the defendant’s endorsement, that the present note was delivered to him by Wood, endorsed by the defendant, without any directions or instructions from either, in what manner he was to negotiate it, though it was well understood by Wood and the defendant, that with the avails he was to take up the original note. Independently of the question of usury, there is nothing in the objection; the #first note was made and endorsed to raise money on, and it was entirely immaterial whether it was discounted at the Bank of Newburgh, or elsewhere. It did not alter or increase the responsibility of the endorser; the money to be raised was intended to be for the benefit of Wood, and he did receive the money for which the first note was discounted. If the plaintiffs knew, when they received the note, that it was intended to be discounted at the Bank of Newburgh, and had been refused, it would not affect them, or establish any fraud.
The situation in which Smith stood did not incapacitate him from testifying to that fact. He was not asked any question involving his own turpitude, as whether the note which he passed as a good and available note, was void within his knowledge, when he offered it to the plaintiffs, and that I consider to be the precise point on which a majority of this court, in Winton v. Saidler, (3 Johns. Cas. 185.)
It certainly was an extraordinary question which was put *to the witness, whether one of the plaintiffs had not admitted to him, since the note was discounted, that it was usuriously discounted; for Smith, being the person who transacted the business, would himself know the fact. Still, however, I perceive nothing improper in the question ; his answer may have shown the relevancy and propriety of the inquiry; and it is not to be supposed that the question would have been entirely overruled, but under the idea that Smith, being an endorser, would not be permitted to testify at all to the usury. Had not that idea prevailed, the question would have been so shaped by the judge, as to elicit all that the witness knew on the subject. We, therefore, grant the motion for a new trial, with costs to abide the event of the suit.
New trial granted.
What one swore on a former trial, cannot be given in evidence unless he be dead. That he is beyond the reach of process of subpeena, and cannot be found on diligent inquiry, will not render such proof admissible. Wilbur v. Selden, 6 Cowen, 162.
Vide Stafford v. Rice, 5 Cowen, 24.
Vide M’Fadden v. Maxwell, post. 188. Myers v. Palmer, 18 Johns. Rep. 167. Tuthill v. Davis, 20 Johns. Rep. 285. Stafford v. Rice, 5 Cowen, 22. Utica Bank v. Hillard, Ibid, 153. Baskins v. Wilson, 6 Cowen, 471.