Manwaring v. Griffing ( 1813 )

Smith, J.

This was a scirc-Jacias, in which, the plaintiff claimed that the defendant was indebted to one Francis Hazard, au absconding debtor.

On the trial to the jury, the indebtednes which the plaintiff attempted to prove against the defendant, was, as surviving partn< r of the firm of Griffin & Starr ; which indebtedness, ih(3 plaintiff insisted, arose from thru- endorsement of a certain bill of exchange, which had been dishonoured ; but whether the defendant was indebted to Hazard, or not, depended on the question of fact, whether due notice had been given of the dishonour of the bill.

It was admitted, that notice had not been given to the defendant, personally ; but the plaintiff insisted, that it was given to Starr ; and to prove this fact, the plaintiff's counsel proposed to enquire of the defendant, what Hazard informed him respecting notice to Starr ; and whether Hazard did not show him a deposition proving such notice ? The court did not permit this enquiry to be made ; which is the ground of the present motion for a new trial.

In my judgment, the decision of the court was perfectly correct. This is an action in which the plaintiff may call on the defendant to disclose, and when thus called on, he stands on the same ground with any other witness; and is not bound to testify to any facts which would not be proper and admissible, when coming from other witnesses. The attempt here was, to prove notice, by the declarations of Hazard, the party in interest, making affirmations and declarations in his own favour. Nothing could be more clearly inadmissible. Had a proposition come from the other side, to prove, that notice had not been given, by the confession of Hazard against himself, he being the party in interest, it would have presented a very different question.

In regard to Hazard’s shewing a deposition proving notice, it may be said, that as the deposition was in the hands of Hazard, with no other proof of its authenticity, than his own declarations, it stands on no higher ground than the other evidence offered. If any such deposition exists, or could he obtained, it would, in itself, be good evidence.

I would not advise a new trial.

All the other Judges concurred in this opinion, except Braimrd, J.j who did not judge.

New trial not to be granted.