Wilson v. Hanson

20 N.H. 375 | Superior Court of New Hampshire | 1850

G-ilchrist, C. J.

If Cady is charged as trustee in this suit, as he will be if Wentworth fails to support his claim to the note, he may plead the matter in bar of the further maintenance of the action of Wentworth against him. In that event he will be charged with the costs up to the time of the plea. Bailey v. Marsh, 3 N. H. 274. If, however, Wentworth makes good his claim to the note, he proceeds of course in his action against Cady, who will in that case also have the costs to pay. In either event Cady seems likely to be charged with the costs of that suit, so far as any judgment which can be obtained in this can be made use of to affect the case. So he stands indifferent, and without any interest in the result of this suit, and therefore not subject to the objection taken against his testifying as a witness. He was properly admitted to testify.

It appears that Hanson was snecl by one Roby, and that Wentworth gave his note for about sixty dollars to Roby to settle the suit. That is all the evidence, and we think that it does not conclude the question which the court below charged the jury to consider: namely, whether, in giving such a note, Wentworth assumed the debt, and so made Hanson his debtor; or only gave his note as collateral to Hanson’s undertaking to pay that or some other sum in satisfaction of Roby’s claim. For, giving a note, whether by the debtor or by a third person, does not of itself extinguish the claim for which it was given; and, in the absence of some evidence that a novation of the debt was agreed to by all the parties, Hanson would not become the debtor of Wentworth till the latter should have paid something for him on account of it. The jury were, in our judgment, correctly instructed in that particular, and the exception does not prevail.

The deposition of Hanson, taken by the commissioner, and filed in the case, was not taken in the manner, as respects notice and other particulars, in which depositions are by law required to be taken to be used on trials, nor was it taken for the purpose of being used on the trial of the cause by the jury. It was taken in pursuance of the provisions of the 22d section of the 208th chapter of the Revised Statutes, to be used, with the disclosure, by the court-. Hpon an issue to the jury, the disclosure is, by section 28, made evidence, and the debtor in express terms a competent wdtness. This, following the provisions of the 22d section, allowing his testimony to be taken as the court may direct, and appended to the disclosure, is a strong confirmation of the inference which would otherwise be drawn, as to the limited use to be made of his testimony, as authorized by the 22d section. He is a competent witness on the trial, and should be called and examined, or his deposition should be taken in the ordinary manner, if required. The deposition was properly rejected by the court at the trial.

Upon the question whether the note which Hanson took of Cady in the name of "Wentworth, had or had not been assigned to the latter at the time of the service of the writ in this case, it was wholly immaterial to inquire whether or not Hanson had held himself out as the actual owner of it two days before. If he had the note at the time he demanded payment of Cady, that possession was evidence that the assignment was not perfected, which derives no appreciable corroboration from the demand which he made. If he had it not, then whatever he might have said was in no sense part of a res gesta bearing upon the question at issue.

But the party whose words were offered in evidence was himself a competent witness by the statute," and had no interest in the result of the suit, beyond a choice whether one or the other of two creditors should have the avails of the note against Cady; a position which the law regards as one of indifference. The court below, therefore, erred in admitting evidence of what he said to Cady on the 4th of July; and the exception to this ruling must in conse-' quenee prevail against the verdict.

New trial granted.