Field, C. J. and Cope, J. concurring.
If the facts found by the Court and deposed to by the witness, Avery, be true, it seems to us that the judgment of the District Court is right. Whether the guaranty indorsed on the note by Enoch M. Avery, the payee, vested the legal title in the plaintiffs, and whether the note at that time were overdue, are not very essential questions, if it be true that the note was made by the defendant to be used by the payee, his brother, for the defendant’s benefit in the purchase of goods, and the payee and agent deposited the note with the plaintiffs as collateral security for his own debt, and afterwards paid the debt or substituted other security for it. In either case, the plaintiffs here would have no right to the note or its proceeds. It would, by this process, have been redeemed from the pledge, and a right to its repossession result to Enoch, who would hold it as agent for his brother. The proofs are not very satisfactory that this was the real state of the case; but certainly the testimony of Avery tends strongly to that conclusion, and the Judge below'gives credence to his statement.
We do not usually interfere with the findings of fact where there is any evidence to sustain them.
E. M. Avery was a competent witness for defendant. His interest would seem to be adverse to the defendant, since the effect of his testimony would be and is to make himself liable on his guaranty.
Judgment affirmed.