Starkweather v. Mathews

The release rendered the- maker a competent witness for his accommodation endorsers. If the defence failed, the witness would only be answerable to the endorsers for the amount of the note—not for an indemnity; and if the defence prevailed, he would still be liable, as maker, to the plaintiff. His interest was balanced.

*132Gardner said, he thought the interest was not balanced. If the endorsers are defeated and have to pay the note, the witness will be absolutely liable to them; whereas in an action against him by the plaintiff, he can set up the defence of usury; and so he is in a better condition by defeating a recovery against the endorsers.

When the witness was called, he was under an apparent legal liability both ways—he was answerable both to the holder and endorsers of the note; and .the possibility .that he might have a better defence against the one than against the other, if it can be regarded as an interest, is too remote and contingent to exclude a witness.

New trial denied.(a)