The opinion of the Court was by

Weston C. J.

Moses Emery, a witness, introduced by the plaintiffs, was undoubtedly interested in the event of the suit. He was liable as indorser of the note; and his interest is conceded by the plaintiffs’ counsel. Being objected to, he was not legally admissible, unless his interest was removed. And in our opinion this has not been done. It does not appear, that Mr. Shepley, the plaintiffs’ attorney in this suit, had any other authority from them, except what resulted from his being employed by them in this cause. That could not give him the right to release any other collateral security. It would have the effect to put the rights and interests of clients unnecessarily into the power of their attorneys. It cannot be regarded as an authority incident to their employment or retainer. No case directly in support of it has been cited, but several have been, which bear against it.

It may be questionable however, whether the plaintiffs’ case required the testimony of the witness, Emery, and whether there is not enough to sustain the verdict without it. The note adduced at the trial, being evidence of the assumpsit declared on, the bur-then of proof is upon the defendant to show it paid or discharged. Actual payment in money is not pretended; but it is insisted that the note has been paid, either by the note signed by Pratt and Emery, or by that of which Gutter became the guarantor. If either of these notes was received by the plaintiffs in payment, it would have that effect, and not otherwise. There is no testimony to establish this fact., except what results from the books of the bank, and the actual receipt of the notes. The state of the books was fully explained by the cashier, and the jury have passed upon that part of the testimony. Both the cashier and King, the Pres*63ident of the Bank, testify, that this note has not been paid, and that the other notes were not received in payment, but as additional security. The implication, arising from the receipt of these notes, is thus done away by this positive testimony. No witness testifies, that either was received by the Bank in payment, whatever might have been the understanding between Emery and Cutter, or between Emery and the defendant. This fact, being directly disproved by the positive testimony of two witnesses, who were the organs of the Bank, and in a condition to know, and who are not contradicted, we have hesitated whether the verdict ought to be set aside, because a third witness to the same effect may have been incompetent. The" plaintiffs had a right to claim and' to hold, as much collateral security as they could get, provided they did nothing, under color of this right, to injure other creditors.

The second instruction requested, is virtually involved in others, which were given. If the Bank held the note unpaid and uncancelled, which the jury must be understood to have found, under the first and third instruction requested, they could not be mere nominal holders, which is the hypothesis assumed in the second. If the plaintiffs took the Cutter note as collateral security, they might hold it as operative and binding, until the principal debt was paid, without thereby discharging the note they held for that debt. Both are binding as security, until the debt secured is paid; and the fourth requested instruction was therefore properly withheld. If the plaintiffs have neither made Emery their agent, nor adopted his acts, which the jury have negatived, any defence which might exist against Emery, could not conclude the Bank, so that there was no legal foundation for the fifth requested instruction.

Upon consideration, however, we cannot take it upon ourselves to say, in a question of fact submitted to the jury, that they could and ought to come to the same result, independent of the objectionable testimony. It covered the whole ground of inquiry, was given at much length, and was material in its bearing. As the interest of the witness was not legally removed, the verdict must he set aside, and a new trial granted.