Amos T. Dwight and others v. Benjamin F. Linton, 3 Rob. 57

Morphy, J. The defendant, endorser of a note drawn by Andrus & Harman, has appealed from a judgment decreeing him to pay its amount. He has called our attention to three bills of exception, taken during the progress of the trial. I. The defendant moved the court to fix the amount, necessary to carry on the discussion of certain property he had pointed out as belonging to the drawers. This the judge refused to do, on the ground that he was not entitled to the benefit of discussion. The motion was in our opinion properly overruled, but not for the reason assigned by the judge.

An accommodation endorser, such as the evidence shows the defendant to have been, must be viewed in the light of a surety, and, like other sureties, is probably entitled to discuss the property of his principal. The motion should have been overruled, because the plea of discussion came - too late. The defendant offered it about one year after his answer had been filed. Like all other dilatory exceptions, it must be set up in limine litis, and cannot be received after issue joined. Code of Prac. arts. 332, 333. Civ. Code, art. 3015. 1 Pothier Oblig. p. 316, No. 411. II.

The judge properly overruled the defendant’s objection to the plaintiffs offering in evidence-testimony obtained under a commission taken out by him, on the ground that as they had declined to putting cross interrogatories, the testimony was his, and could be used only by himself. When a commission duly executed is returned into court, either party may use the testimony taken under it, and he does not lose this right by waiving that of cross-examining his adversary’s witnesses. III.

The defendant offered two witnesses to prove that his endorsement on the note sued on, was merely as security, and that the same was to be paid out of collections to be made by him of claims due to the drawers, Harman dr Andrus, and particularly out of anote due by Redmond & Harper, for about $1700, in his hands. The court refused to heat these witnesses, being of opinion that parol evidence could not be received to change, or modify a written contract. We think that the court erred. We have repeatedly held, that the

article of our Code which provides that parol evidence shall not be received beyond, or against the contents of a written act, is inapplicable to a case of this kind. The evidence offered was neither to contradict nor explain a written instrument, but to prove a collateral fact or agreement in relation to it. 12 Mart. 402. 1 Ib. N. S. 90. 2 Ib. N. S. 122. 3 Ib. N. S. 268. But even had these witnesses been heard, and had they testified to the agreement relied on by the defendant, their testimony would have been outweighed by that adduced against him.

Their evidence might have destroyed the proof resulting from the answers of the plaintiffs to interrogatories propounded to them by the defendant, in which they denied the existence of any such agreement; but there would still remain the testimony of George A. Trowbridge, one of the defendant’s own witnesses, who was the person who received the note for the plaintiffs, and who positively denies that any condition was attached to the endorsement, which was given as an ordinary accommodation endorsement. Judgment affirmed.