Bristol vs. Dann and others, 12 Wend. 142

By the Court, Savage, Ch. J. Rogers was the payee of the note ; had passed it to the plaintiff for a valuable consideration, and had guaranteed the payment of it. He was a competent witness for the defendants, but not for the plaintiff. He was interested in the event of the suit. If the plaintiff succeeded, and collected the money, he was discharged from his guaranty. If the defendants succeeded, he was liable upon his guaranty. His interest was against the defendants, and therefore he was a competent witness for them, and the plaintiff could not object to him.

The rule seems to be settled, that a party who can call a witness, shall not be permitted to prove his declarations. A former owner of real estate, through whom the title has passed, is said to be an exception ; his admissions against the title while he was in possession may be shown. That rule the judge at the circuit applied to this case, by permitting the defendants to give evidence of Roger’s admissions while he owned or possessed the note. This was going farther in favor of the defendants than they had a right to ask. In Whitaker v.

Brown, 8 Wendell, 490, where the suit was brought by the bearer of a promissory note, the admissions of the payee whilé owner of the note were excluded. Several cases are there cited to sustain that decision. If, therefore, there was any error at the circuit, it was in favor of the defendants, and they cannot complain of it- The second point excepted to is equally untenable. There is no pretence that the advance was made with the intent, and for the purpose of bringing this suit, for the advance was made long after suit brought, and subsequent to a former trial.

Nor was it made in consideration of the note' having been placed in the hands of the attorney for collection, 2 R. S. 288, § 71, 72; and without such intent, under the present statute, the demand is nqt affected; nor is the attorney punishable. The testimony shows that the advance was made from motives of humanity and benevolence. There are other points raised by the defendants’ counsel, but as no exception was taken upon the trial, it would not be proper to discuss them. I will only remark, that this case is not the same presented on a former occasion. 8 Wendell, 443. Nor does it depend upon the same principles.

Although the partnership had been dissolved the day before the note was given, yet notice of the fact had not been given ; nor does it appear in this case that Rogers knew it. New trial denied.