Curia, per
Sutherland, J.The title of the declaration is of August term, 1823. The writ issued in October, 1822, is not the writ, then, on which the defendant was arrested ; nor does the capias on which he was arrested, appear to have been an alias or pluries. No connexion is shown between the two ; and that issued in October, 1822, is totally unavailing. In order to render it availing, the plaintiff should have shown in his replication, that it had been actually returned by the sheriff, non est inventus, and regularly continued on the roll from term to term, down to the time of suing out the process on which the defendant was finally arrested. It is indispensable, for the purpose of saving the statute, that the writ should be returned. The continuances may be entered at anytime. (1 Dunl. Pr. 57, 124. Beekman v. Satterlee, 5 Cowen, 519, and the cases there cited.) The evidence was not admissible under the pleadings.
The only question then is, whether Minier was compet tent to prove an acknowledgment of the debt by the defendant within six years. The acknowledgment was sufficient to take the case out of the statute, if it was proved by competent evidence.
The objection on the trial to Minier’s deposition, was on the ground of his interest generally. The only evidence to show that he is not liable as endorser, is what he himself says in his deposition ; “that he has disposed of all his interest in the said note ; and that he is not made responsible, as he believes, on the said endorsement,” This *474appears to me altogether insufficient. The presumption of law is, that he has been regularly charged as endorser ; and this presumption is rebutted only by the belief of the endorser, that he has not been made responsible. Upon what that belief is founded, does not appear. Whether he is liable or not, is a mixed question of law and fact. He may not have received actual notice of the dishonor of the note by the maker ; and found his belief upon that circumstance. But if notice was actually sent to him, he is charged, although he may never have received it. The notice may, in his opinion, have been given too late ; but whether it was or not, is a question of law, which he cannot be permitted to decide, for the purpose of rendering himself a competent witness. He does not pretend that the note was taken by the endorsee upon the credit of the maker only, and under an agreement not to look to him as endorser. Such was the evidence in Herrick v. Whitney, (15 John. 240,) and in Shaver v. Ehle, (16 John. 201.) He must, then, be considered as endorser, liable to pay the note, if it should not be recovered from the defendant. He had therefore, a direct interest ⅛ producing a recovery in this suit. On this ground, he was incompetent.
If he had not been responsible as endorser, I am in? dined to think that his liability upon the implied warranty of the genuineness of the note, would not have disquali? tied him for the purpose for which he was offered.
The genuineness of the note had been previously established, by proof of the hand writing of the maker ; and although the testimony of the witness, as to the admission of the debt by the defendant, might tend to corroborate the previous testimony, it was not offered for that purpose; nor was such its natural and legal effect. The rule upon this subject, as recognized in Herrick v. Whitney and Shaver v. Elite, has always appeared to me to be founded on considerations, extremely refined and artificial. It is, at all events, not tobe extended.
The motion must be denied.
Motion denied.