The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-07
supsem Court-spccinI Term.
EXAMINATIo,. oF ONE DEPENDANT Az A WITNESS FOR
OTUTR-UaURY.


THE oTHRR-UsURY.
Dyo ely q Co ~. Miller q Reed --RoowyKtr, j.
The law at present in England allows parties 10 suit
TO testify In their favor, leaving the question Of
credibity under full view of all the circumstance
TO the determination Of the jury We have high autho.
rity for the confident predc.
tons OF the foreboders Of eythat in the courts OF
that country the change In practice works we'll Indeed,
Il always seemed--and in this state sti seems--a
strange anomaly that while the important mo.
tons they technically called, the parties should
not only beas from time immemorial they have been
allowed TO testify in their favor and paper too,
and without cross animation, yet under the
system Of Jurisprudence what technically demo
minated trials the witness although offered To the
points with the additional advantage of oral
and face to face crossexaminaton In cou IT. should
be excluded Such nevertheless, In s the law In this
state Efforts have been made TO change IT, and TO
the nifest contradiction alluded TO- but thus
FAR without success. AL that our Legislature, az
yet, nave been willing TO do has been 10 allow
one party to call his opponent, and in certain
opponent 10 call another. And the
question presented on the application now made,
Il Can Of two joint makers oi a promissory note
sued Jointly as such, be witness for his colleague
One defendant, says the Code section 3g7 may be
amned behalf Of his codefendant u any matter
in which he IL not jointly liable or jointly interested,
be rendered. Now what, under the commits.
sion applied for by Reed, Is the matter 70 which
he seeks to examine his codebtor, Mers The defence,
and the only defence, Is usury. And is not Miller
" jointly interested y with Reed In this matterY II
the usury be established by his testimony does he
necessarily prevent any Judgment against either de.
fendantt Does he not In effect destroy the note
which he would otherwise be- liable jointly with his
defendantpi The note, II Ia said IL both joint and
several and is not that option invested for tho
benefit Of the makers but Of the payeesf The plaintf
no doubt might have sued Reed alone but they
not boand TO do They have eected-and they had
right 70 electto the joint promise, and TO ask
for Joint judgment-a judgment which, when entered,
win bind all the joint property and merge the entire
contract and prevent any separate action Afterwards
against Miller, although he may not have been served
with a summons In this and which, As 10 his
separate property although open 10 other defences,
win forever preclude any defence OF the statute of
limitation. Code, section 3g7) The plaintiffs,
have said can have separate judgment In this
action This action In not brought the several but
all doubt, the plaintiffs have stpulsed-alth0ugh the
form Of their complaint would 70 render any spu.
ation superfuous-to ask judgment unless against
both. H. then, the defendant, Miller should by his
testimony establish the defence of usury, he by
his testimony defeats the action altogether To say
that be Is not Jointly interested with Reed in such
result stating the law above explained, Is manifest
absurdy. For although there may be no joint property
at preent, there may be joint property hereafter and
at all events, the statute Of limitations IL sufficient
cons lerstion 10 create interest "n the matter
But that - not all Judgment Of dismissal in this &C
ton on the ground OF usury, would as r1 adadodh,
b. complete bar 70 any action hereafter either Joint %
several, on this same note, sgains, Miller, To admit
him % swear ~ ALL therefore, Ia 10 admit him 20 swear
for himself And consequently until the Tngalatare
shall otherwise provide the present application and all
other applications Of like character, must be daned