3 Vt. 445 | Vt. | 1831
After argument,
pronounced the opinion of the Court.— We will first enquire whether Spencer, the witness offered by the plaintiff, was correctly excluded from testifying ? It appears in the case, that the note was executed for the benefit of this witness, but made payable to Jarvis, the creditor, whose process the witness had served probably in hopes, that he would receive this note as new security for his debt. But there was a writing co-temporaneous with this note, containing a condition precedent to the validity of the note. The plaintiff, not being able to show this condition to have been performed, attempts to show something tantamount, to wit, a waiver of the condition by the deceased in his life time. To prove this, the plaintiff offered said Spencer as a witness. But the plaintiff offered first to remove his interest, by showing, that he then in court had conveyed all his interest to Messrs. Child and Hall, who also had released all claim upon him
Another important point is raised by the exceptions. The nominal plaintiff, Jarvis, had assigned this note, which in terms is negotiable, to this witness, Spencer, by an assignment without date. This would prima facie divest Jarvis of all right to pursue his action, and drive Spencer to his action in his own name. In which case the defendant would be entitled to a nonsuit in this action. The plaintiff, to avoid this difficulty, offered to show, that this assignment, which is thus without date, was made after the decease of Barker, and after his estate was represented insolvent, and commissioners were appointed to receive and report the claims against his estate, and after this note had been exhibited to and adjudicated upon by them. This testimony was objected to by the defendant, and excluded by the court. We now consider, that, so far as that assignment of the note was to affect the trial, the plaintiff had a right to this testimony to avoid its effect. All demands that go before commissioners, must be treated as they were at the decease of the debtor. So of claims in favor of the estate. The commissioners must strike and report the balance. Any transfer after the decease cannot affect the decision of the commissioners. It may convey the equitable interest ; but cannot change the nominal plaintiff or defendant. On this point, the decision of the county court was incorrect. But if this testimony had been admitted, the plaintiff’ could not have recovered, without proof upon the first point now decided, in which he wholly failed, Yet it is possible, that justice has not been done by the nonsuit. Plaintiff now,, on his motion to set aside the nonsuit, shows an assignment of this
The Court have a discretionary power to remove this nonsuit for the purpose of attaining justice, and this on such terms as will do substantial justice. We have come to the conclusion, to grant the motion for setting aside the nonsuit, and open the cause for a new trial, on the terms, that the plaintiff- pay to the defendant all the taxable cost of this term, and of the term, in which the jury trial was, and that he take no cost for said two terms, should he finally recover.