Cushman v. Downing

Wells, J. orally.

It has been decided in Putnam v. Churchill, 4 Mass. 516, that where the note, alleged to be usurious, is indorsed to a third party, the oath of the defendant cannot be admitted, and it was re-affirmed in Binney v. Merchant, 6 Mass. 190. In the latter case, it was alleged, that the suit was brought for the benefit of the payee, but that did not avail to let in the oath of the party. In a later case, Little v. Rogers, 1 Metc. 108, the Court did not disavow the authority of these decisions, but in that case, which was upon a note payable to defendant’s order, they held it was not a note until he put his own name upon it. From these decisions, it appears, that the question asked of the witness, Woodman, was wholly immaterial, and the decision of the Court, rejecting the statements offered by the defendants, was right.

Another question raised, is whether the statement of defendants should not have been admitted because the note, originally payable to Caldwell, was in fact given to the plaintiff. The note was running to Caldwell, and whether or not it was his property is wholly immaterial. He was a party to the note, and when it was negotiated this kind of evidence could no longer be allowable.

It is contended also, that the plaintiff had no right to buy this demand and sue it, and thereby prevent the defendants from using him as a witness. There is a rule of law, that a man cannot make himself interested, and thus prevent his being called as a witness, and there is another, that a note may be negotiated. There may seem to be some hardship in this case, but we think it best to adhere to the general principle that one party cannot be made a witness, rather than the other. Exceptions overruled.