Tuthill v. Davis
New York Supreme Court
THIS was an action of assumpsit on a promissory note, made by the defendant to Abner Cunningham, and by him indorsed to the plaintiff. The cause was tried at the Orange circuit, in April last. After the signatures of the maker and indorser were proved, A. Cunningham, the indorser, was called by the defendant’s counsel as a witness.
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THIS was an action of assumpsit on a promissory note, made by the defendant to Abner Cunningham, and by him indorsed to the plaintiff. The cause was tried at the Orange circuit, in April last. After the signatures of the maker and indorser were proved, A. Cunningham, the indorser, was called by the defendant’s counsel as a witness. The plaintiff’s counsel objected to his competency ; but lie was admitted1 by the Judge, and stated, that the note in question was given to take up a former note made by Nathaniel Sands to him, and indorsed to the plaintiff, and also a note made by James Cunningham…
1Opinion of the CourtPlatt, J.
In regard to the admissibility of Cunningham, the indorser, as a witness for the defendant, I have no doubt that he was competent, and was properly admitted. His testimony went to prove, that after he had indorsed the first notes, they were used to obtain an usurious loan, by passing them to the plaintiff, who was himself the usurer, and of course *287had notice that those notes were infected when he so received them. If the decision in the case of Winton v. Saidler (3 Johns. Cas. 185.) he still considered as sound law, it has no application to this case : there, the plaintiff was a bona fide…
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