Bacon v. Williams , 77 Mass. 222 ( 1858 )

By the Court.

1. The right of action on this note passed by the assignment to the assignee in insolvency, and was not affected by the subsequent death of the debtor; and the assignee, upon motion made while the action was still pending in court, was rightly admitted to prosecute it for the benefit of the estate. St. 1838, c. 163, § 5.

2. The assignee was also a competent witness; but by the terms of the statute the defendants could not be witnesses. St. 1857, c. 305, § 1. Howe v. Merrick, ante, 129.

Exceptions overruled.

The defendants also moved for a new trial, upon the ground of a discovery of a receipt since the verdict, and, although the plaintiff objected that the evidence was merely cumulative, a new trial was granted, upon which the plaintiff obtained a verdict and judgment. 13 Gray, 525.