The opinion of the Court, after a continuance, was drawn up by

The defence depends on the legal admissibility of the declarations of James Howard, the payee of the note. At the time of these declarations, he was not the holder of the note, which had been previously passed to Charles Goodwin. He held it as security for certain liabilities, in which he was involved *115for Howard. Goodwin then held it for value, it may be equal to, or exceeding the amount of the note; but if it was to a less amount, he was a bona fide holder, for value. Bayley on Bills, 850. Bosanquet & als. v. Dudman, 1 Stark. Rep. 1; Smith v. Hiscock & al. 14 Maine Rep. 449. When the note was indorsed does not appear, except from the declarations of Howard, which are not competent proof of that fact, although it might be proved by his testimony.

None of the cases, to which we have been referred, have gone the length to determine, that the declarations of a party to a note, who is not at the time the holder, and while it is then actually held by another for value, can be received in defence. The declarations admitted in evidence, in Shirley v. Todd, 9 Greenl. 83, were made by the payee, while he was the holder of the bill. In Hatch v. Dennis, 1 Fairf. 244, the declarations of the payee held admissible, were made by him, while he held the note, it having been first proved, that it was indorsed, after it was due. In that case, Parris J., who delivered the opinion of the Court, says, “ the current of English decisions show the declaration of the payee, while he held the instrument, and adverse to his own interest, to be admissible as evidence in favor of the maker.” And again he says, “ a number of cases are to be found, both in the American and English reports, where the declarations or admissions of the payee of a negotiable note, made while the note remained in his possession, were received as evidence for the maker, in a suit against him by an indorsee, it having been first proved, that the note was indorsed after it became due.” And the cases cited by him sustain the position.

It does not appear to us, either upon principle or authority, that declarations of this sort ought to be received in evidence, except such as come írom a party when in possession of the instrument, and having a complete and entire control over it, as his property. In this case, the note was at the time fairly held by another for value, and it depended upon contingencies, whether the payee would again become the holder.

The purposes of justice do not require a further extension of the rule. It would be dangerous receiving such declarations, if at the time, any other person was the holder and interested in the instru*116ment. The opinion of the Court accordingly is, that the defence has not been sustained.

Defendant defaulted.