White v. Kibling

Where a negotiable note "was paid, before it became due, to the payee, by the maker, who took a receipt in full, and the note was after-wards, before it became due, endorsed by the Pemtorsee rfthe"nfact1of such payment before the note was delivered lieiaTL't The endorsee took the note subject to such payment. An endorsee of a promissory petent witness meTt°of ait Yy Evidence1"" of whYir'dead’ swore to at á aTaute/isYdsmssibie, tho’ ed with the objection1 is110 Sialf’orT that ground ; for it will then be presumed that of^heYormer suit and trial

THIS was an action of assumpsit. The cause was tried at the Jefferson circuit, the 16th of June, 1813, before Mr. Justice Yates. The plaintiff gave in evidence a promissory note, dated 17th of May, 1808, by which he promised to pay Simeon Daggett, or order, two hundred and twelve dollars, on or before the 1st of January, 1811, with interest, and endorsed by Dag-0 The defendant’s counsel offered to prove that the note was endorsed originally by Daggett to one William Otis, and that, at time 80 made the endorsement, he informed the agent of Otis that the defendant had paid the note; and that Otis, , . . when he transferred the note to the plaintiff, was informed of t*16 same fact. The plaintiff objected to this evidence, unless the defendant first proved that the note was endorsed and trans- , ferred, after it became due; but the judge overruled the objec- .- UVIi* Ackley, a witness for the defendant, testified, that in May or June, 1809, Otis delivered the note in question to him, and requested him to get it endorsed by Daggett. The witness soon a^er saw Daggett, and requested him to endorse it, which he 0^jecte^to’ saying the defendant had paid the note to him, and that he had given a receipt to the defendant for the amount. Daggett, however, endorsed the note, on the express condition that the witness should keep it, and not let Kibiing know of it, until the 20th of August, when he agreed to be at Ellisburgh, where Otis resided, and pay it. The witness accordingly kept ^ie note in his hands until after the 20th of August, and then delivered the note to Otis, informing him of the conversation , , , . ° , _ which had passed between the witness and Daggett. Another witness, Cole, testified, that he was at the house of Qfá$ jn qie winter of 1809, when Kibiing told Otis the note in question had been paid, and that he should not pay it again. Otis produced the note, which was not then endorsed by Daggett, and the defendant produced the receipt in full. Otis said the note had been delivered to him by Daggett, as security for another note, signed with Daggett to the plaintiff. The witness further stated that Otis was dead; that on a former trial of the cause, in the court of common pleas of Jefferson county, from which it was removed to this court, Otis was a witness, and testified that the note was first deposited with him in the autumn of the year 1808, in the manner mentioned by the witness; that in February, 1809, Kibling informed him, Otis, of the payment of the note; that the endorsement of it was afterwards obtained, and it was delivered to the plaintiff towards payment of his demand against Daggett and Otis, on their note above mentioned; that, at the time he so delivered the note to the plaintiff he informed him of the payment of it, and of the manner in which the endorsement from Daggett had been obtained, and told the plaintiff he might take the note and make what he could from it. This evidence, as to what Otis testified at a former trial, was objected to by the plaintiff’s counsel; but the judge admitted it on the ground that Otis was dead. The defendant then produced and proved a receipt given by Daggett to the plaintiff, which was objected to by the plaintiff’s counsel, but admitted by the judge. The receipt was as follows: “Chester, January 3, 1809, received of John Kibling, jun. the .full demand which I hold against him, dated the 1 Tth of May last, which was given for a certain lot of land in Ellisburgh, bping for value received.” The. jury, under the direction of the judge, found a verdict for the defendant. ■ A motion was made to set aside the verdict, and for a new trial.