Walbridge v. Kibbee

Where a deposition is not attached to its wrapper, and the filing of the clerk was indorsed upon the wrapper, which is lost, the question of the identity of the deposition is one of fact, to he determined by the county court, and their determination is final. An initial letter is not to be regarded as any part of a man’s name, in the caption of a deposition, if one name is given in full. The maker of a promissory note, when sued by an indorsee, cannot plead an offset, even though the note were indorsed overdue; but he is entitled, under the general issue to make any defence, which grew out of the note transaction, or out of any agreement between himself and the payee in relation to it.

Assumpsit upon a promissory note for $ 100, dated November 9„ 1837, and made payable to one Abbott, or order, in April, 1841. It appeared from the testimony of Abbott, that he sold the note to one Joseph A. Wing, sometime in the autumn of 1845, and indorsed it in blank. - The defendant offered the deposition of Jared H. Kibbee, — which was objected to by the plaintiff, for the reason that the plaintiff’s name is certified, in the caption, to be Henry F. Walbridge, and also for the reason, that the deposition was not attached to the wrapper, nor in any way marked by the clerk, so as to identify it as being the deposition originally filed. The clerk, being sworn, testified, that he had no doubt it was the same deposition, but that he had no mark, by which he could positively so swear; — and the court, being satisfied that it was the same deposition, overruled the objection. The defendant also gave evidence tending to prove, that, while Abbott was the owner of the note, he had a settlement of accounts with Abbott, in which there was found due to the defendant a sum sufficient to extinguish the balance now claimed to be due upon the note, which sum Abbott agreed to apply upon the note, as soon as he should return to his own home, where the note then was; and that the defendant, when called upon for payment by Wing, on behalf of Abbott, previous to the sale of the note, paid what was actually due, and informed Wing, that it was agreed, that the balance of the account should apply in payment of the balance of the note. The plaintiff 'then introduced evidence tending to prove, that in the spring or summer of 1845, the defendant was in the office of Wing, who then held the note for collection, as attorney for Abbott, and paid tó Wing: about' thirty dollars, to apply upon the note, and told him .that he would'send the balance in a short time. The plaintiff requested,-the court to charge the jury, that if the defeiidant .promised to pay Wing, in the manner the testimony tended, to prove," the'plaintiff was entitled to recover. But the court instructed"* the jury, that, as Wing purchased the note after it became due, he could not recover, if it had been paid before, he purchased it; and that, even if the defendant told Wing, while the note was in his hands as attorney for Abbott, that he should pay the balance in a short time, but afterwards determined to await a suit upon it, and Wing afterwards purchased the note, even though he did rely somewhat upon what the defendant had told him, it would not oblige the defendant to pay the note to Wing, if he had previously paid it to Abbott, unless the defendant, at the time he made those declarations to Wing, had knowledge, that Wing intended to purchase the note. Verdict for defendant. Exceptions by plaintiff.