delivered the opinion of the court as follows : The present motion is not founded on any supposed misdirection of the judge, who tried the cause, to the jury; nor has it been alledged, that the verdict given for the defendants, was manifestly against evidence. But it has been contended, that it was obtained by surprise on the plaintiff at the trial. This surprise, it is said, has been in some degree occasioned by the courts’ omitting in December term 1805, to express the grounds on which they awarded a new trial. — I cannot accede hereto.
The plaintiff's claim was attempted to be repelled on the first trial, under a supposition, that Wheelen and Miller owed a larger sum to Wilkins and Scott; and it was also insisted, that the note in question could not be considered as an accommodation. On the first ground, the court without hesitation declared, that the set off was not sustainable by law; because the debts were not mutual, and between the same parties. Mr. Duncan had no interest in the firm of Ernest and Co., to pay a debt demanded of him, with their money. This would be doing injustice to *465Mathew Ernest and Charles Wilkins, two of the members of that firm, who were not concerned in the present transaction.
The defence was afterwards conducted on the principle of its not being an accommodation note, which was combatted by the plaintiff’s counsel.
The charge of the court was conformable thereto, and the arguments on both sides were stated to the jury. Upon the argument on the rule to shew cause, the same question was again taken up; and the court expressed their unanimous opinion, that there was reasonable ground to doubt, that justice had not been done, but refrained from going into further particulars, as the enumeration of them might tend to prejudice the plaintiff on the second trial. Upon what point, could the judgment of the court have been founded, except on the character of the note ? We were fully satisfied, that it was not an accommodation note, but was bottomed on a real purchase of lands, and given for the indemnity of Wheelen and Miller; which Wheelen, during his difficulties did not think of raising money upon, from the summer until December 1796. It was a large note, not divided as the notes of Wheelen and Miller were, drawn by persons living at great distances from the city, and in different places, payable 11 days earlier than the three notes, so that Wheelen and Miller should be in funds, to meet the payments on the 3d March. Besides it was not between the same parties, so that Duncan could have *no benefit thereby, if his note r* W. might be negotiated and the monies paid thereon should L 4 not be applied in discharge of the contract for the lands. — I have seen no reason, after the fullest reflection, to alter the opinion which I then formed.
But if even it should be considered as an accommodation note, it was incumbent on the plaintiff to shew that it came from him in a fair course of trade, that he had paid a valuable consideration for it, and that there was no trust whatever for Wheelen in the indorsement. This was gone into fully on the last trial, and the books of the plaintiff were strongly relied on, to shew that Mr. Wain was a trustee for Wheelen, or his creditors. The point was correctly stated in my idea, by Judge Smith to the jury, and left to their decision, together with the question, whether by the fair understanding of the parties, it was intended to be an accommodation note, or not. The jury have found for the defendants: but whether they formed their judgments on the one or other of the points, does not appear to the court.
It has been urged, that the plaintiff is furnished with the evidence of Martha Powell since the last trial, of which he is desirous to avail himself. It has been determined, that where testimony is not known at the trial, which will throw light on the cause, the court will grant a new trial, where there is no default in the party. It is acknowledged, that the plaintiff knew here, what she could prove; but that she did not become a competent witness, until she assigned her interest in the money due *466to her from Wheelen and Miller to her sister Anne Powell without recourse.
Cited in 5 S. & R. 470 to show that there can be no set-off, unless both debts are respectively due, between, exactly, the same parties: See Stewart v. Coulter, 12 S. & R. 252.I forbear to say any thing of her materially contradicting the testimony of Israel Wheelen.
But whose fault was it, that Martha Powell was not examined upon the last trial ? It can be imputed only to the plaintiff or Miss Powell.
If to the former, he cannot derive a benefit from his own default. When he deemed his case sufficiently strong to go to trial, under the testimony he was then possessed of, he must be supposed to be liable to all consequences. But if the fault be imputable to Martha Powell, she must be considered as the cestui que use of such proportion of the note, as according to her affidavit, she was entitled to under, the indorsement. As far as appears, she took no active part in the cause from 1797, until 1807, though she must necessarily be supposed to have known, that the action was going on. Ought she not to have removed her disqualification earlier, if she was willing to be affirmed as a witness ? Shall a party interested lay by, while a suit is carrying on in the name of another, and the latter avail himself of the neglect of the former, in not releasing her interest, and thereby render herself a '^competent witness? In my *467] idea, the same principle, which is applicable to the plaintiff, will also operate against such cestzd que tise.
The judge who tried-the cause has not expressed any disapprobation of the last verdict; and therefore under all the circumstances of the case,.I have no hesitation in saying, that the motion on the part of the plaintiff for a new trial should not be granted.
Smith, J. concurred. Brackenridge, J.Upon the first trial, I declare, that I thought the question, whether the note was of accommodation or of indemnity, was mere matter of law; upon which the opinion of the court should have been explicitly given to the jury; but I was overruled by the other members of the court. I still retain my former opinion, that it was a question of law, and that the judge should have charged the jury accordingly. But I am decisively of opinion, that it was not an accommodation note, and that a new trial ought not to be awarded.
Motion denied.