Shipmans & Co. v. Archinard

■Martin, J. delivered the opinion of the court. The defendant ahd appellant has placed this case before us on a bill of exceptions to the rejection of the testimony of William P.Hickman, and of aletter from W.P. & T.Hickman, the *472 payees °f the note sued on, to the defendant, the maker. The wjtnesg was offered, to prove, that the suit was premature ; he had guaranteed the payment of the note to the plaintiffss the en-dorsees, who had received it after its maturity ; and the judge informs us, he was rejected on the following ground : “ That a person or persons, who had guaranteed and secured absolutely the payment of an obligation, the tenor of which showed it to be due and exigible, cannot be permitted to come into court and show by their testimony, that the action is premature.” The plaintiff and appellee has drawn our attention in support of the opinion of the first judge to the case of Lesassier, curator, vs. Hurtzel et al., 8 Martin, N. S., 265, in which the de* fendant, to support the plea of novation, offered as a witness his surety, who had become the principal debtor in the obligation sued on; which had wrought the novation of the first. We were of opinion, that the lowercourt had not erred in rejecting him, because “if it were true, that he engaged to pay the debt of the principal, then it follows, that he was interested to defeat this action ; because the principal, if condemned, would have a right to call on the witness for the debt and the costs incurred by the failure of the latter to discharge the obligation.” In that case it was the interest of the surety to protect Hurtzel and defeat the plaintiff’s action. In this action it is the interest of Hickman, the witness, to support the plaintiff’s claim, and to have the defendant, his principal, condemned ; for an effectual recovery by the plaintiff would annihilate the witness’s obligation as a guarantor. This case is the converse of that relied on by the present plaintiff. In the one, the discharge of the defendant would give him a claim against the witness ; in the other, the success of the defendant would leave the. witness liable to an action, which would be destroyed by the plaintiff’s effectual recovery. The witness therefore was, in our opinion, improperly rejected, as be was called upon to testify against bis own interest. 4 M. R., 472; 4 Martin, N. S., 172. The bill of exceptions is silent as to the reasons which influenced the court in the rejection of the letter. The *473 plaintiff had received the note after its maturity; the maker therefore was entitled to every equitable d’efehce, which he might have opposed to the payees, whos'e letter was offered as ■evidence of an Obligation, which the defendant -’contended* they had incurred, to forbear sueing him. It ohght fot these reasons to have been received. ’The guarantor of a note is a competent witness on the part of the maker, in a suit by the en-dorsee against the latter; for it is the interest of the witness, thai the plaintiff should recover, and he is called upon to testify against his own interest. So "where ceived^the note ^afurity defendant may produce in evi-denee the letter and e original thauhesuttwas ¡!re,mature> an.<1 that a certain bad beep allowed for-payment. It is therefore ordered, adjudged and decreed, that the jhdgment of the District Court be annulled, avoided and reversed, as well as the interlocutory judgment overruling the defendant’s ° . éxception to the prematurity of the suit; all proceedings be-Wveen the interlocutory and final judgments set aside ; and the case remanded for a new trial upon the ’exception, with direct tions to the District Court, to admit the testimony of W. P. . . J Hickman and the letter of W. P. & T. Hickman: the ..... . , ana appellee paying the Costs of the appeal.