10 Johns. 231 | N.Y. Sup. Ct. | 1813
The question arising upon this case is, not whether the facts offered in evidence by the defendant were not sufficient to cast upon the plaintiff the necessity of showing that he gave a valuable consideration for the note, but whether the endorsor was a competent witness to prove those facts. He was, called to prove, among other things, this fact, that after the note was duly executed and endorsed, it was delivered to a third person to carry to the bank for discount, and that instead of doing this, he placed it in the hands of a broker. Here was a breach of trust in the third person. The maker probably intended to bor= row money for his own use from the bank, on the credit of the note; and it is the same thing as if the third person had lost the note, in going to the bank, and the tinder had put it into circulation,
A new trial ought, therefore, to be awarded, with costs to abide the event of the suit.
New trial granted.