12 Vt. 427 | Vt. | 1840
The opinion of the court was delivered by
— The evidence, in this case, proved, most conclusively, that the note in question was paid, and that it could not have come into the possession of the plaintiff until long after it was due and paid. The propriety of the ■decision, admitting testimony to prove that fact, is not questioned here. The only questions raised are, whether evidence ■of the testimony of Cobb, in a former trial of this cause, when both parties were present, is now to be received, (Cobb having since deceased) as he was not sworn. It appears that Cobb was a witness, and.' gave his relation without being sworn, by the consent of the plaintiff. His relation was evidence, or testimony, in the cause, and asjthe plaintiff waived
The other objections to the admission of the account and letter of Cobb, were not well taken, as he was, at the time of making the entry and writing the letter, the owner and holder of the note. He never indorsed nor sold the note to the plaintiff. He refused to put it in suit, and, a long time after the payment of it, he delivered it over, with his indorsement, thereon, to Leland, the person who paid it.
The judgment of the county court is affirmed.