Scripture v. Newcomb

the first question in this case, is, whether the declarations of the assignor, confessedly made after the assignment and notice thereof to the maker, were admissible on behalf of the defendant.

Although the declarations were made after the assignment, and after the assignor had ceased to have any interest in the note, and when therefore the general reason on which such admissions are usually received, founded on a supposed interest to make a different declaration, did not exist, they would, according to the decisions which had been made in this state prior to the passing of the act of 1822, (Stat. p. 66. §1.) undoubtedly have been admissible in favour of the defendant, it being for the jury to determine the weight to which they would be entitled. Bulkley v. Landon, 3 Conn. R. 78. Plant v. McEwen, 4 Conn. R. 544. Johnson v. Blackman, 11 Conn. R. 389. It is not necessary here, nor do we intend, to impugn the general principle established in those decisions. That statute however provides, that “whenever the defendant in any suit upon a bond, note, or other chose in action not negotiable, shall plead or give in evidence the discharge, admission, or other act of the plaintiff, or any payment to him, or transaction whatsoever between the plaintiff and defendant, it shall be lawful for the plaintiff to reply or prove, as the case may require, an assignment of such chose in action, and notice thereof given to the defendant; and on the same being made to appear, such discharge, admission, payment, or other transaction shall be no otherwise available in such suit, in favour of the defendant, than the same would or ought to be in a court of equity.” In the present case, it was conceded, that there had been an assignment of the note on which the suit was brought, to the person on whose behalf it was prosecuted, and notice thereof given to the defendant. The defendant gave in evidence a discharge from the plaintiff on the *592record, and claimed, that it was executed before said assignment, which was denied and claimed to be disproved, by the plaintiff. The declarations of the assignor, made subsequent to the assignment, were then offered by the defendant, to shew, that the discharge was prior to the assignment. It is a case where the defendant gave in evidence and relied on a discharge,—where there had been an assignment of the claim with notice,—and where the subsequent admissions of the assignor were offered to support that discharge; and is, therefore, plainly embraced in the statute above recited. It provides, that neither such discharge nor admission shall be otherwise available for the defendant, than they would be in a court of equity. In such a court, there is no doubt, that both the discharge and the admissions of the assignor, made after the assignment, would be entirely unavailing, and therefore inadmissible. The declarations offered in evidence by the defendant, were therefore properly excluded, unless we adopt the absurdity that it is the duty of a court to admit evidence, which by statute is made utterly unavailing. It would indeed be very singular, if the declarations of the assignor, made after the assignment, should be held to affect the assignee, when even a charge then executed by him would be wholly ineffectual. The counsel for the defendant has treated the case as if there was a question between the parties, on the trial, whether the declarations offered to be proved by him were made before or after the assignment. If that were the case, it would present a very different question from the one now before us. The declarations here were confessedly made after the assignment; and we place our decision on that ground.

The objection to the admission of the deposition, on the ground that it was not properly directed, has not been strenuously pressed. On the principle settled in Thompson v. Stewart, 3 Conn. R. 171. it was clearly admissible. There was obviously a mistake as to the style of the court to which it was meant to be directed, which was undoubtedly the superior court. We have no such court as the “supreme court.” The word “supreme” may, therefore, be disregarded; and then it would be a direction to the court then in session; which would be sufficient; for that would be the superior court, and no other.

*593A new trial, therefore, should not be granted.

New trial not to be granted.