#### *Tilden *vs.*Gardiner and McKinlay.

A *new trial*will be granted on the ground of *surprise,*where a witness who has been duly subpoenaed, and under whom the plaintiff claims title to a note, the recovery of which is sought, at the moment of the trial absents himself, so that the defendant cannot avail himself of the benefit of his testimony.

In an action by an endorsee against the maker of a note, the *endorser*is not a competent witness for the maker, if he be *interested*in defeating the recovery.

Teces was an action of *assumpsit,*tried at the Hew-York circuit in March, 1841, before the Hon. Philo Gridley, one of the circuit judges.

The plaintiff claimed to recover on a promissory note, made by the defendants on the 15th April, 1836, for $192.10, payable to J. B. Glentworth, & Co. or order, six months after date, which was endorsed by the *506payees. The defendants proved that on the 6th January, 1837, the payees wrote to them, requesting payment, or a new note at 60 days, which they accordingly sent, and which was received hy Glentworth & Co. and handed over by them to their assignees, they having on the 10th of January made an assignment of their property fSr the benefit of their creditors; which note was paid *at maturity.*After such payment, the assignees of Glentworth & Co. demanded from *Charles Burrall*a statement of notes placed in his hands by Glentworth & Co. The agent employed to make the demand, had been the clerk of Glentworth & Co., and testified that the note in question, together with a number of others, had been placed by Glenthworth & Co. in the hands of *Burrall,*as collateral security for a loan made ; that he had been so informed by *Burrall;*that at the time he called upon Burrall, he saw in his possession the bundle of notes which had been put up by the firm ; he did not see the note in question, but Burrall admitted that he had it in his possession. The admissions of Burrall were objected to by the plaintiff’s counsel, and excluded by the judge. *James B. Qientworth*was called as a witness, by whom the defendants offered to prove that the note in question, with others, was placed in the hands of *Burrall*as col- [ *664 ] lateral security for an usurious loan. He was Objected to as an incompetent witness on the ground of *interest,*and rejected by the judge. *Burrall*was then called as a witness on the part of the defendants, but did not appear. The counsel for the defendants insisted that enough had been shewn to require the plaintiff to prove the *time*when he received the note, and the *consideration*paid for it. The judge ruled that the consideration had not been impeached; that the legal presumption was that *Burrall*had received the note before maturity, and that therefore the *plaintiff,*holding all the rights of *Burrall,*was entitled to recover ; and the jury, under his direction, found a verdict for the plaintiff.

On the above case, and on the ground of *surprise,*the defendants asked for a new trial. They produced affidavits shewing that *Burrall*was subpoenaed as a witness on their part to attend the trial; that after the trial commenced he was at the door of the court room, beckoned to come in, but instead of doing so, "secreted himself or went away ; that he was searched for, but could not be found. The defendants swore that they had no notice of the *assignment*made by Glentworth & Co. until after 29th March, 1837.

C. *P. Kirkland,*for the defendants.

N. *Hill,jun.,*for the plaintiff.

*By the Court,*

Nelson, C. J.

I am of opinion that no error has been *507committed by the learned judge at the circuit, and that a new trial cannot be granted on that ground.

The interest of *Gflentworth*was not balanced. He will be liable to the defendants for the costs and expenses of the suit, in case the plaintiff succeeds, which turns the balance of interest against them; and as it respects the title to the note, for aught shown, Burrall took it *bona fide,*and for value, which enured to the benefit of the plaintiff. He had a right to protect himself under this title, without regard to the circumstances attending the transfer to himself.

But I am inclined to think that justice and fair dealing require us to grant a new trial on the ground of *surprise,*arising out of the improper conduct of Burrall. As the note has passed through his hands, he is not to be regarded in the "light of a stranger to the transac- [ *665 ] tion, for whose conduct the plaintiff should not be held in any way responsible. On the contrary, he is to be presumed to have in some measure a common interest in the recovery, as he may be accountable if the defendants should succeed; at least, a well founded suspicion that such an interest may exist, naturally arises from the circumstances attending his departure from court to avoid being called as a witness. It was obviously by contrivance and design, with the settled purpose of embarrassing the de-' fence. Such conduct should not succeed any where, much less in a court of justice. Eeasonable care and diligence had been used to procure his attendance 5 and the ground of surprise is as strong as in the case of *Jackson*v. *Warford,*7 *Wendell,*67.

New trial granted on payment of costs.