The rule in Walton and Shelly has never been applied, at least in this state, to a bill or note on which the action was not brought. The question could not arise in The Bank of Pennsylvania v. McCalmont, because the drawer was offered as a witness by the holder, not to impeach the note, hut to prove that he was the principal debtor, without affecting the liability of the endorser. The object and effect of the testimony was not to discharge either of them, but to bring the debt within the terms of the drawer’s assignment for his creditors. It is true, that in delivering the opinion of the court, Judge Kennedy recognised the principle of Walton v. Shelly as a general one, and without distinction as to the foundation of the action; hut he was not called on to distinguish, as the rule was clearly inapplicable to that case on another ground. The point, therefore, did not come up, and there was no intimation of an opinion in relation to it. The rule is of questionable propriety in the abstract; and its utility in practice, if it has any, has not been so clearly disclosed as to give it a claim to extension.
The testimony of Beinhard being admitted, the question of fact submitted to the jury came up for determination as a matter in course. The papers on which the plaintiff principally relied as evidences of debt, were jorimd facie evidence of it, and the jury were told so. The court had then performed its proper function, in deciding what was an unmixed question of law; hut when parol evidence, explanatory of the transaction, became an element of the ca.se, it drew the whole to the jury. Then, if the note was given, as Beinhard testified, to accommodate Danforth, and not to secure advances by him, there was an end of the contest. The fact was for the jury, as judges of his credibility; and the court properly referred the whole to them.
Judgment affirmed.