Milward against Hallett

Milward against Hallett. A master of a ship who has drawn a bill on his owner for the amount of money advanced to him to pay exporting duties on a cargo delivered to his owner, and to enable him to return home with his vessel, is a competent witness, without a release, in an action by the person lending the money against the owner, though the bill be unaccepted, as he is equally liable to both parties. A master of a ship can bind his owner by a bill of exchange drawn for necessaries. This was an action' on the usual money counts, to recover a sum advanced to the captain of the defendant’s ship when abroad, and for which the captain had drawn bills upon his owner, who had refused to accept them. *Some time in January, 1801, the vessel sailed from Philadelphia to Port Eepublican, in Hispa-nolia, under a charter party to James Yard, of Philadelphia. In February she arrived at her place of destination, had discharged her outward cargo, and taken in part of one for Europe, pursuant to her charter party, when information was received that Yard had become a bankrupt. Upon this (according to the testimony of James Hussey, the master of the vessel, who was admitted as a witness) Chambaud, the merchant in Port Eepublican to whom the ship was addressed, refused to furnish any more of her lading, and demanded restitution of that which had already been put on board. The master refusing to comply with this, legal proceedings were thereupon commenced to enforce a redelivery. THese, however, failed; but the master was, notwithstanding,' prevented from sailing with his cargo, by the French admiral, who threatened that unless the cargo was relanded, he would detain the vessel till a court from the first counsel should sit, before which time the bottom of the vessel would probably drop out. Upon this the master, supposing it best for the interest of all concerned gave up part of his cargo, retaining only 85 hogsheads of sugar, and a quantity of logwood. For the purpose of paying the exporting duties on these goods, and the necessary expenses of the ship in consequence of this deten tion, the money in question was borrowed. The voyage being thus broken up, Captain Hussey returned to New York with the ship, and delivered her, together with 85 hogsheads of sugar, and 80,000 weight of logwood, to the defendant, and rendered him a full account of all his transactions. On the part of the defendant the deposition of the mate was read in evidence. He testified that the principal part of the outward cargo belonged to Yard; that the defendant had on board 85 barrels of prime pork, and 20 of beef, over and above the ship’s stores, together with 86,000 bricks. That there was some property on board belonging to other persons which the master sold, and received the proceeds. That the freight of these must have amounted to upwards of 100 dollars. That the part of the cargo relanded by Captain Hussey was delivered up, contrary to the express directions of the defendant, which the captain had received, and showed to the witness. That *Hussey told him that the exporting duties on the sugar retained, and the expenses of relanding the others, amounted to eleven or twelve hundred dollars. The mate also swore there were no other expenses of any consequence attending the ship, except the repairing of a fore-yard, which cost about thirty-six dollars. The jury having found for the plaintiff, a motion was now made to set aside the verdict, and grant a new trial, upon the following grounds: 1. Because Hussey was (in incompetent witness, without being released by the plaintiff; 2. Because it was not in his power to bind the defendant by the contract which he made with the plaintiff. Boyd, for the defendant. Supposing the general reasoning of equal liability to be good, it does not hold in the present case. Hussey is liable to the plaintiff, in damages, to the amount of 10 or 20 per cent, on his protested bill. This, therefore, gives a preponderance of interest in favor of the plaintiff. The case from 7 D. & E. which may be relied on by the plaintiff, was not like this. It was determined on the necessity of receiving the testimony offered. But the captain could not bind his owner in this way. He can do it only through the medium -of his ship. The case shows the money was borrowed to extricate the -property of Yard, and pay the exporting duties of the sugar. The receipt of it does not give the defendant any right to it, for as Yard has become a bankrupt, it is, by the operation of the 10th section of the bankrupt law, vested in his assignees, by whom we are liable to be called on. Caines, contra. Evans v. Williams, 7 D. & E. 481, (n.) is in point. The case runs qualuor pedibus with this. The captain of an Indiaman drew a bill on his owners for money expended on account of the ship. He was held a good witness, because equally liable. The quantum of liability cannot be considered by the court. That would be to try the respective causes, and settle on the bench the amount of verdicts. That a master can bind his owners by a bill drawn upon them, on account of .their vessel, was settled in Sansum v. Braginton, 1 Yes. sen. 443. and in Gary v. White, 1 Bro. Pari. Cas. 284. Neces* sity requires it; for many persons will not lend on bottomry, *wbo may advance on bills. Every agent lias an implied authority to bind his principal respecting the subject matter of his agency. The appointment to the command of a vessel is a certificate of confidence by the owner, and equal to a letter of credit respecting bis ship. It is enough, if sbe be in difficulty, to authorize any one to lend. ■ The visible necessity of the vessql is all a lender is bound to look to. If she cannot depart without money, he is warranted in advancing, and is not bound to look to the application, or inquire wbetber funds be in the master’s bands. Mol. b. 2, c. 1, s. 10; Marsh. 689 ; Abbott, 121. This would be to ask a stranger to doubt the very man the owner himself has trusted. He holds him up to the world as trustworthy, and cannot say the reverse. The same principle exists in cases of executors. A man purchasing of them is not bound to see to the application. Whale v. Booth, 4 D. & E. 625, n.(a) Though the bankrupt law transfers to the assignees of Yard the property delivered to the defendant, it is subject to the lien for the amount of the exporting duties and freight. Boyd, in reply. If the master can thus bind his owners, the whole of every shipowner’s property will be at the mercy of his captain, and the consequence must be ruinous to commerce. If the rule antecedently laid down (Peyton v. Hallett, 1 Caines’ Rep, 367 n. (a,) respecting the incompetence of witnesses be correct, the inverse of its principle will determine their competency. When, therefore, the legal effect of the verdict will not operate to the immediate advantage or disadvantage of a person testifying, such person is a competent witness. From this principle it follows, I. That parties to the record are admissible, when it appears judicially, from the proceedings in the suit, that their liability is determined or merely possible; as in an indictment for an assault and battery, one defendant, who has submitted and been fined, for the other; (Rex v. Fletcher, 1 Stra. 633,) a co-defendant in trover, after judgment against him by default, to show that the other never intermeddled; Ward v. Haydon & Ventom, 2 Esp. Rep, 552,) so in trespass, to exculpate, but not to inculpate, liim by testifying for the plaintiff, and putting it in his power to levy all against the other; Chapman v. Graves, per Le Blanc, J., 2 Camp. 333 n.) aliter, if the co-trespasser bo not made a defendant; (id. ibid.) overruling, in this respect, Barnard v. Dawson, cited in the same case, and stated 1 Caines’ Rep. 367 n. (a,) which, however, does not seem to bo law; fora verdict and judgment, without satisfaction, would be no defence to the witness. Besides, the distinction of Be Blanc is rather shaken by Lord Ellenborough, who allowed a co-defendant in ejectment, against whom judgment had gone by default, to prove the other defendant in possession, it being amere possibility that the plaintiff would go against him alone for the mesne profits; (Doe v. Green, 4 Esp. Rep. 197,) so those in the simul cum in trespass if nothing bo proved against them; (Sty. 401,) or, if tney have made satisfaction, to prove it; (Poplet v. James, Bull. N. P. 286,) so when a witness does not appear individually on the record, though he may be one of the body who do, if it be shown that he has no kind of interest; as a mere trustee for a public charity who is one of a corporation, sued by its corporate name. Weller v. Governor, &c., of the Foundling Hospital, Peake’s Cas. 153, before Kenyon, Ch. J. In Pennsylvania a plaintiff on the record who was a certificated bankrupt, and had released his interest at the bar, was held competent in a suit carried on for the benefit of his estate, but in which liis assignees had given security for the costs; (M'Ewen v. Gibbs, 4 Dall. 137,) so when the party to the record in whose favor the rule of exclusion would operate, is willing to waive its benefit, and the other consents to be examined; as one of two plaintiffs, in behalf of the defendant; (Williamson v. Twibill & Norden, 1 Taun. 378,) in the report of which, as printed in the New York edition by Riley, the parties appear to be reversed. 2. Persons interested in the subject matter of the suit when their interests would bo unaffected by the event, and must necessarily remain the same, whether the verdict be for the plaintiff or defendant; as tenant in fee of the inheritance to prove the lease in an ejectment, where both plaintiff and defendant claim under him; (Fox v. Swann, Sty. 482,) or an original lessor, under whose lesseo the defendant holds, to prove whether lie demised first to the plaintiff, or another person; (Bell v. Harewood, 3 D. & B. 308.) or a purchaser, who has recovered judgment against the defendant for a fraud in selling land to which he had no title, to testify in another action for the plaintiff) who had bought under the same sale; (Fairchild v. Beach, 1 Day’s Cases in Error, 266,) so when the interest is not beneficial, but fiduciary as an executor in trust, though he has acted: (Lowe v. Joliffe, 1 Black. 365; Cornwell v. Isham, 1 Day’s Cases in Error, 35,) or an assignee in trust, to show that he had no real interest, .where the conveyance is by the cestui que trust, in whose name the suit is brought. Wilson v. Speed, 3 Cranch, 283. 3. When the interest is merely a possible or consequential, but not certain or immediate result of the verdict, as a steward of a court, to prove a fine due to tho lord on admissions during his minority, though on such tho witness would be entitled to afee; (Champion v. Atkinson, 3 Keb. 90,) or a person who expects to be a deputy to the party for whom he testifies, should he obtain an office, which he seeks to avoid in a scire facias; (Banning's Case, 1 Mod. 21,) or, on a justification in trespass that tho locus in quo is a highway, the owner of an adjoining lot who has agreed to let the defendant pass across it for a certain rent, which privilege cannot be enjoyed without establishing the road ; (Pollard v. Scott, Peake’s Cas. 18,) so where the interest is a consequential right to an office of mere authority, that is not beneficiary. The King v. Bray, Cas. temp. Hardw. 358. 4. Where the interest in a fund is transferred; as that of a creditor who has sold his chance of recovering a debt to a third person, to testify for him. Granger v. Furlong, 1 Stra. 507; 2 Black. 1273, S. C. 5. Where the interest which did exist becbmes impossible; as that out of the future profits of an adventure in goods which are lost before sold. Robertson v. French, 4 Esp. Rep. 248, or, 6. Where it is in any way destroyed, as that of a borrower of money on usurious terms, to prove, after payment of the debt, the fact of usury; (Smith v. Prager, 2 Esp. Rep. 486; Pettingal v. Brown, ante, vol. 1, p. 168,) or a drawer of a bill, who has not received due notice, to prove, in an action against the acceptor, that it is paid. Mumphrey v. Moxon, Peake’s Cas. 53. 7. Where the interest is not immediate on the fund, though the witness may ultimately be paid out of it, as a creditor of a bankrupt, who has not proved his debt, to support the commission. Williams v. Stevens, 2 Camp. 300. 8. Where it remains unaltered, as that of a certificated bankrupt under the law of the United States, to testify in favor of his estate when it will not pay 25 per cent. Phoenix v. Bey and others, 5 Johns. Rep. 412. 9. Where it is only in the general ability of the party to pay, and creates ao new liability to the witness, as an agent entitled to a commission on goods sold, to prove the sale and delivery; (Dixon and others v. Cooper, 3 Wils. 40,) or a creditor to testify for his debtor, though suing for the recovery of the amount of the very goods for which the debtor is liable to him. White v. Baring, et al. 4 Esp. Rep. 22. 10. where the interest in the event of the suit is a mere possib.e, and not necessary liability in consequence of the verdict; as that of a mere liability to a rate that may be imposed, but is not in fact laid; (The King v. Prosser, 4 D. & E. 17; The King v. South Lynn, 5 D. & E. 664; The King v. Little Lumley, 6 D. & E. 157; Falls v. Belknap, 1 Johns. Rep. 486,) or to an information in the nature of a quo warranto, if the right of the party for whom called be disturbed; (The King v. Bray, Cas. temp. Hardw. 358,) or that of a sub-lessee of lands let out under a covenant for particular cultivation, to show there was no breach; (Wishaw v. Barnes, 1 Camp. 341,) or that of a person who expects to be called on for costs, but is not bound to contribute to them; (Bent v. Baker, 3 D. & E. 27,) or, who considers himself bound in honor only; (Pederson v. Stoffles, 1 Camp. 144, contra Fotheringham v. Greenwood, 1 Stra., and tho doubt expressed in Coleman v. Wise, 2 Johns. Rep. 365,) upon which point, however, the court have in a late case laid down the rule, (Trustees of Lansingburgh v. Willard, 8 Johns. Rep. 428,) that an ideal interest in a witness, if so circumstanced that it cannot be released by the party calling him, shall disqualify him as a witness for, though he may be a witness against such party: a principle that seems to recognize a legal nonentil.y, as a legal disqualification, contrary to the position that the law acknowledges only legal consequences. The rule seems also to be impugned by a more recent decision, (Gilpin v. Vincent, 9 Johns. Rep. 219,) in which the court say, that as the contribution to the suit (which was the ground of iucompetency urged) depended on the volition of the witness, and on the contingency of his being asked, and upon his sense of the general practico and principles on such occasions, “there was no fixed or certain legal interest," to disqualify, and the witness therefore competent. 11. Where the interest is. a liability to the party for whom called, only when the other party is liable to him, as a payee to prove, for an endorsee, that the defendant, who drew the bill, had promised payment after it became due. Stevens v. Lynch, 2 Camp. 332. 12. Where, though it be to exonerate liimselfin the suit in which he testifies, it makes him liable over; as a joint debtor, to prove that money of his co-debtor’s was in the hands of the defendant as garnishee in an attachment issued against the odebtors. M'Leod v. Johnson, 4 Johns. Rep. 126. 13. Where the interest from liability is removed; as an owner of a vessel who has paid to a shipper of money more tha.n the amount for which bills of lading were signed and been reimbursed by his captain, to testify foi him in his suit against the shipper for the money so paid. Cortes v. Billings, 1 Johns. Cas. 270. 14. When the witness’s liability in the suit remains unaltered, as that of a person who has sold a horse with a warranty of Ins soundness, to prove that he was so when he sold him, in an action on a similar warranty against a subsequent vendor; (Briggs v. Crick, 5 Esp. Rep. 99,) or a joint seller of lands to which he had no title, for the other sellers who were sued in an action on the case for the same fraud: (Phelps v. Winchell, 1 Day’s Cases in Error, 269,) or a commoner testifying for a prescriptive right in a fellow commoner in a particular estate, though he may have correspondent rights. Baker v. Bent, 3 D. & E. 33. 15. When the liability is on another point than that for which called; as a deputy jailer who has taken a bond to the sheriff for the liberties, to testify for the sheriff in an action against him for an escape of a prisoner in the custody of the deputy. Stewart v. Kip, 5 Johns. Rep. 266. 16. A witness, though liable to the defendant, if the plaintiff’s case turn out differently from what stated, is nevertheless competent to prove it, if tha defendant would still be liable to the plaintiff; as a captain to prove a vessel not seaworthy in an action against the owner for negligently carrying goods freighted. Lay v. Hollock, Peake, 101. 11. There is a class of persons who are said to be witnesses from necessity, such as agents, factors, brokers, and others who act between the parties to a suit; but perhaps the principle would be more accurately laid down by saying, that all persons in the mutual confidence of parties litigant are competent witnesses between them, on the subject in which employed; as a book-keeper, to whom goods were delivered, to prove their direction; (Spencer v. Goulding, et al, Peake, 129,) or a servant, to whom money has been paid for his master, to show that it was given into his hands; (Mathews v. Haydon, 2 Esp. 509,) so to prove that goods, for which he had an order in his favor, were delivered over to the defendant; (Burlingham v. Deyer, 2 Johns. Rep. 189,) or an agent, who applied to a broker to get insurance, to prove the order and representations; (Mackay v. Rhinelander, 1 Johns. Cas. 408,) or, though employed to make a purchase on terms which he exceeds, to testify between vendor and vendee. Bailey & Bogert v. Ogden, 3 Johns. Rep. 399. 18. AVhen the interest in the subject matter of the suit is such that the verdict cannot be used in favor of the witness; as that of a widow, in an action for the recovery of lands claimed under her husband, out of which she is entitled to dower; (Jackson v. Van Dusen, 5 Johns. Rep. 144,) or a defendant in a suit at law, to prove perjury in an answer to a bill filed by him against the plaintiff, for a discovery respecting the merits of the question between them ; (Rex v. Boston, 4 East, 512,) so if the suit in which the perjury is alleged, has terminated in favor of the witness. Rex v. De Favia, Peake’s Cas. 104; Rex v. Broughton, 2 Stra. 1229. The same rule holds in equity, notwithstanding the decision in Rex v. Menetone, cited 4 East, 516, and The King v. Eden, 1 Esp. Rep. 98, in which the evidence went to permit a party to manufacture it for himself. Where, however, a statute exempts a person from penalty or punishment on convicting another, a witness testifying to that effect is competent,. though the verdict gained on his testimony may be used by him in his own discharge. Howard v. Shipley, 4 East, 180. It has been a subject of frequent discussion whether a person whose name has been forged to an instrument, is a competent witness to prove the forgery. In England he is hold to be incompetent; (The King v. Boston, 4 East, 582, per Lord Ellonborough,) so in Connecticut, (State v. Blodget, 1 Root, 534, State v. Bronson,1 Root. 301,) unless he comes within the principle of Bex v. Broughton, ubi sup.; as where the witness had recovered the money, on a receipt for which his name had been forged; (Welle’s Case, Bull. N. P. 289,) or has been released by the party to whom liable by the forgery, (D. Dodd's Case, 2 Leach's Hawk. c. 46, s. 24, n.) whether it would be so with us is doubtful, (The People v. Howell, 4 Johns. Rep. 296,) he is not in Pennsylvania: (Respullica v. Keating, 1 Dall. 110; Pennsylvania v. Farrel, Addis. 246,) nor in Massachusetts. Commonwealth v. Hutchison, 1 Mass. T. R. 7. A further rule on the subject of competency is, that an interested person is the best possible witness against himself. Jackson v. Vredenbergh, 1 Johns. Rep. 159. Therefore, an uneertificated bankrupt to decrease his estate. Butler v. Cooke, Cowp. 10. A witness to prove himself liable. See post, p, 84, n (a.) [MAJORITY — THOMPSON, J. Kent, J. LIVINGSTON, J.] THOMPSON, J. The two questions arising out of this case, and made on the part of the defendant, are, 1. Whether James Hussey, was a competent witness ; 2. Whether the defendant is bound by the contract Hussey made with the plaintiff, and to what extent. I think the master of the vessel was a competent witness. His testimony would tend equally to charge himself on a.ny event: and although, perhaps, he might himself have objected against being examined, yet, as his interest between these parties is equal, the objection .against him could, with propriety, be made by neither. The witness was liable to the plaintiff on his bill of exchange which he had drawn on the defendant, which had not been accepted : and, if he had borrowed the money from the plaintiff in capactiy of master of the vessel of which the defendant was owner, and had misapplied that money, he would be responsible to the defendant for such misapplication. He was therefore competent, not on the ground of necessity, *but because, as between these parties, he stood perfectly indifferent on the score of interest, which must exclude every presumption of bias on his mind With respect to the second question, there is no doubt but the master of a vessel may make his owners personally responsible for necessary expenditures, relating to the usual employment of the vessel. The master is held up to the world as the agent of the owners. His character and situation furnish presumptive evidence of authority from the owners to act for them in such cases. But in order to make the owners responsible, it is necessary the supplies furnished the master should be reasoably fit and proper for the occasion; Abbott, 108; or that the money advanced to him for the purchase of them, should at the time, appear to be wanting for that purpose; the contrary would furnish a strong presumption of fraud and collusion on tbe part of tbe creditor. The court, however, I think, ought not to be scrupulously nice in requiring the creditor to show this necessity, to the full extent of the money advanced. The master is elected and appointed by the owners, and by their appointment of him to a place of trust and confidence, (1 Bro. Parl. Cas. 284,) they hold him forth to the public as a person worthy of such trust and confidence. The exist ence and extent of such necessity were proper questions for the determination of a jury. The master swears that the money borrowed was for the purpose of paying the necessary expenses of the ship, and the exporting duties of the cargo, the whole of which has been delivered to the defendant, together-with a full account of all the transactions. So that if all the money borrowed was not expended for the purposes for which it was loaned, it has been accounted for by the master. There can be no doubt, I think, that the captain had a right to borrow money on the credit of his owner, to pay the necessary expenses of the ship, and the money applied to the payment of the exporting duties was clearly for the benefit of the defendant; he was interested in the outward cargo, and it is fairly to be presumed he was also in the return cargo. At any rate the whole of the cargo, upon which the exporting duties were paid, has been delivered to the defendant, and upon which he will have a lien for the repayment of the money against any claim on the part of the assignees of Yard. *There appears some contradiction between the master and mate as to the extent of the necessity of the expenditures; their credibility was, however, a proper subject for the jury, with whose decision I see no reasonable ground for dissatisfaction. I am therefore of opinion that the plaintiff ought to have judgment. Kent, J. It will not be requisite for me to examine the first question, because, admitting Captain Hussey to have been a competent witness, I am of opinion the plaintiff is not entitled to recover. There was no special authority given to the captain to bind the owner of the vessel. All the power that he had was derived from his general and ordinary character as master; and in that character, he can only bind the owner of the ship to contracts relative to the usual employment of the ship, and the means requisite for that employment. Abbott, 83, 92, 94, 97; Abbott, 102 ; 1 Bro. Pari. Gas. 284. This power relates only to the carriage of goods, and the supplies requisite for the ship. The master quoad the cargo is limited to the duties and authorities of safe custody and conveyance* and, except in cases of unforseen necessity, he is a stranger to the cargo beyond those purposes. 3 Rob. Adm. Rep. 257, 258. The contract, in the present case, was not respecting the employment of the ship. It was wholly distinct from it. The payment of the export duties at Port Republican was made by the master, in the assumed character of agent respecting the cargo, and whether well or ill assumed, is perfectly immaterial as it concerns the owner of the ship. He can only be affected by contracts relative to the master’s trust, who is set over the ship, and not over the cargo; and the owner of the ship cannot be bound by any contract of the master concerning the purchase of goods, or the charges attending them. If this had been a contract concerning the destination of the vessel from Port Republican, the time of sailing, or the amount or species of goods she was to carry; or if it related to the repairs of the ship, or the stores and provisions requisite for the voyage, the question would have been very different. But it would be of most dangerous consequence to shipowners, to be held responsible for all the master’s contracts and loans, relative to the goods on board; and it would be. unjust on principle, because such contracts are not within the purview of the master’s trust. It is very clear, in *this case, that the loan of the plaintiff was not requisite for the ship’s expenses: the master had funds in hand more than sufficient for all such purposes. The loan was for the payment of tbe export duties on tbe sugar and logwood, and tbe sugar and logwood were purchased with tbe proceeds of tbe outward cargo belonging, to Yard, and were delivered on board for and on bebalf of Yard, and, consequently, tbe property vested in bim, and went to bis assignees. Tbe delivery of the sugar and logwood to tbe defendant, on tbe ship’s arrival at New York, cannot alter tbe nature and operation of the contract of loan; for tbe defendant must be responsible to tbe assignees of Yard for tbe amount of that cargo. It was formerly held^ (Johnson v. Shippen, per Holt, Cb. J., 2 Ld. Raym. 982; Salk. 35 ;) that tbe master of a ship bad no credit aboard, but upon the security of hypothecation; that he could not hind the owners personally, and that the hypothecation must have been for necessaries for tbe ship. But in tbe case of Carey v. White, Abbott, 102; 1 Bro. Parl. Cas. 284, it waS established, after great litigation, in the bouse of lords, that tbe owners were liable for money borrowed by the master for necessaries for the ship, but it must appear that the money Yas wanted for tbe necessary use of tbe ship, and this, I apprehend, is the extent to which the owners liability has hitherto been carried. I do not think that tbe receipt of the cargo by the defendant makes any alteration in the case. The cargo did not belong to the plaintiff, and the acceptance of it cannot, I think, be construed into any affirmance of the loan, because there is no necessary connexion between the cargo and the loan, and the defendant had a right to receive and detain the cargo, as a security for the freight, and it was prudent for him to do so since Yard, to whom the cargo belonged, had already become a bankrupt. But there is another fact which completely does away this inference of any affirmation of the loan, and it is a fact direct and unequivocal; and this was the refusal to accept the bill of exchange. For these reasons I am for the defendant. LIVINGSTON, J. Two questions are made by this case; 1. "Whether Hussey could be examined without a' release from the plaintiff; and, 2d. Whether his contract was binding on the defendant. Unless masters be admitted as witnesses in cases of this kind it will be extremely difficult to ascertain whether such a necessity existed as would , justify their ^taking up moneys on their owners’ account. I will not, however, say, that from necessity this testimony ought to have been received; because, as the witness had no interest, I see no reason why he should have been excluded. In any event, he stood indifferent between these parties, being liable either to pay the money received to the plaintiff,‘or to refund it in another action to the defendant. Thus in 7 D. & E. 481, in noil's, it appears, that a master who had, as in this case, drawn a bill on his owners, was a witness between the bill-holder and his owners, he being liable, in Lord Kenyon’s opinion to the plaintiffs on his bill of exchange, and to the owners if the money was borrowed improperly, or for himself. As to the damages for which Hussey may be liable on this bill, it does not appear that any are due; and if that be the case, I am not certain that the defendant, if he wrongfully suffered the bill to be protested, is not liable for them. If not, what is to prevent an action on the bill against Hus-sey, in which he would be entitled to a credit only for the sum recovered in this suit. I think, therefore, he was a competent witness. As to the second point, it is not easj to conceive a case of stronger necessity for making the loan than is here presented. It was the only way of securing the freight, and most manifestly for the owner’s benefit. Yard being a bankrupt made no difference; for his as-signee could not get at this property without discharging the freight, and the moneys paid for exportation duties. This lien existed against all the world. It is true, the cases generally speak of moneys borrowed for repairs and necessaries, but the same reasoning applies here. This was money borrowed for the benefit of the owners, and in relation to the voyage then pursuing, and the whole transaction being in good, faith, it would be hard to say the master shall refund it himself. But without deciding this point, it appears that the cargo brought back was received by the defendant, who, it is probable was immediately in formed of what his captain had done. He must, therefore, for aught that appears to the contrary, have in his hands the very money for which this action is brought, and, at any rate, the acceptance of the cargo, under these circumstances, must be regarded as an affirmation of the captain’s conduct. The plaintiff is, in my opinion, entitled to judgment. , New trial refused. Wherever a witness is, in all events, liable to one or other of the parties to a suit, and his testimony goes only to determine to which he shall be so liable, lie is competent. Therefore, in an action by the holder of a bill against the drawer, the acceptor is a good witness to prove he had no funds of the drawer’s in his hands at the time the bill was drawn. Staples v. Okines, 1 Esp. Rep. 322. So a payee of a bill of exchange, drawn without consideration, is competent, in an action by his endorsee against the maker, to prove the time of his endorsement, and the value given for it; because he is liable to the drawer for money paid if the verdict be against him, and if it be for him, to the endorsee on the endorsement, Shuttleworth v. Stevens, 1 Camp. 407. But where tne payee of such a note is discharged under an insolvent or bankrupt law, posterior to its date, he is not a competent witness for the defendant maker, because he is not liable to the plaintiff endor-' see, and would be to the defendant if a verdict went against him. Maundrell v. Kennett, ibid. 408, n. So an endorsor of a bill who has received money from the drawer to take it up, may prove the payment of the bill in an action by the endorsee against the maker; for he is liable, on liis endorsement, to one party, and to the other for money had and received; the extra liability to the costs o£ the action in which he testifies is of no importance. Birt et al v. Kershaw, 2 East, 458; Ilderton v. Atkinson, 7 D. & E. 480, overruling, in this respect, Buckland v. Tankard, 5 D. & E. 578; see Renaudey. Croken, 1 Caines’ Rep. 168, and M'Leod v. Johnson, 4 Johns. Rep. 126. See New York Digest, title Witness The competency of witnesses, &c., and the rules heretofore existing as to witnesses, have been materially altered. Under the Code of Procedure, a party to the action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and may be compelled to testify, &o. See Code of Procedure, p. 153, § 390; [seo. 344,] see Bank of Charleston v. Emerick Davenue, 2 Sandf. 718; Park v. Mayor, &c., of the City of New York, 3 Com. 489; Pillow v. Bushnell and others, 4 Howard, 9; Brockway v. Stamton, 2 Sandf. 640; Anderson v. Johnson, 1 Sandf 713; 2 Code Rep. 66; 2 Code Rep. 15; 2 Sandf 661; and for certain purposos a party may offer himself as a witness. See Myers v. McCarthy, 2 Sandf. 399, 2 Code Rep. 143; see examination of co-plaintiff or co-dofendent, Code of 1849, and amendments thereto passed 1851; Code of Procedure, § 391, p. 155. Por authorities on the above, see 4 How. 212 ; 5 How. 223 ; 5 How. 296; 5 How. 401, and 5 How. 281. Code of Procedure, p. 156, says, No witness to be excluded by reason of interest, § 398; [sec, 351,] and also shows to whom this rule does not apply in § 399, [sec. 352.] Por decisions under Code Of 1848 and 1849, see 1 Barb. 151, S. C. 3 How. 401, S. C. 1 Code Rep. 108, 2 Code Rep. 16, 5 How. 8, also see 6 Barb. 666. By sections (of Code) 64, sub. 15, this applies also to justices’s courts. See also different decisions and opinions as to competency and incompetency, Pillow v. Bushnell, 2 C. R. 19, 4 Pr. Rep. 9, 1 C. R., 133, 7 L. O. 225, 1 Code Rep. 123; Huffman v. Stephens, 2 C. R. 16, 1 C. R. 113 ; Farmers Bank v. Paddock, 1 C R. 81, 3 How. 401, 1 C.R, 108, 1 I. O. 139 2 C. R. 33.