Dazey v. Mills
| Decision Date | 31 December 1848 |
| Citation | 1848 WL 4117,5 Gilman 67,10 Ill. 67 |
| Parties | WILLIAM T. DAZEYv.ALEXANDER MILLS, for the use of Nathan Pinkham. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS was a suit originally commenced before a justice of the peace in Adams county by the defendant in error against the plaintiff in error. Judgment was rendered for the plaintiff below, who appealed to the circuit court, and at the May term, 1848, the Hon. Norman H. Purple presiding, a jury was dispensed with, and the cause tried by the court, who rendered a judgment for plaintiff for $51.46, and costs.
The facts of the case are sufficiently stated by the court in the opinion.
A. WILLIAMS and C. B. LAWRENCE, for the plaintiff in error.
2. The court erred in excluding the evidence. The admission of the plaintiff on the record is always admissible and competent evidence against him, without regard to his interest. This is a positive and inflexible rule of law. Its wisdom is justified by the consideration that he could not be used as a witness in the case, and if it should appear that the admission was not made in good faith, but by collusion with the defendant to defeat the recovery by the person to whom he had passed his interest, this would destroy the effect of the admission, but would not affect its competency. Whether made in good faith or collusively is a question for the jury and not for the court, but in this case there is no pretence of collusion. Bauerman v. Radenius, 7 Durn. & East, 663, and note ( b); 3 Harr. & Johns. 342; 3 Conn. 76; 4 do. 544.
3. In this case, the only evidence that Pinkham had any interest is furnished by the deposition itself, and it shows that Mills still had an interest in the note. It was not sold absolutely to Pinkham, but pledged as security for a debt which Mills owed him. If Pinkham failed to get the money of Dazey, he would resort to Mills for payment. So that upon the ground of interest, as well as his being a party to the record, his admission was competent evidence. The rule is, that the admissions of a party against his interest are evidence against him.
4. If, as the record shows, the deposition was admitted as competent evidence, then the judgment is for forty dollars more than it should have been, that sum having been paid as shown by the deposition.
5. The paper purporting to be a bill of exceptions on the part of the plaintiff is no part of the record, and is improperly copied by the clerk. It contradicts the record. If the plaintiff wished a writ of error he could file a bill of exceptions for that purpose; but it certainly can not be regarded as any part of the record on error brought by the defendant, particularly for the purpose of contradicting the record. The record shows that the deposition was admitted as competent evidence. The plaintiff could, in a writ of error prosecuted by himself, assign this as error, but he can not do it in a case brought and prosecuted by the defendant. This bill of exceptions shows that the deposition was excluded. This is not ground of exception on his part, because it is in his favor. It also shows that the affidavit of Pinkham was not considered. This might be regarded as part of the record on error by the plaintiff, because it was against him and does not contradict the record.
C. A. WARREN and O. C. SKINNER, for the defendant in error.
1. It is the duty of courts to protect the holder of a chose in action, and to regard him as the real party. Session Laws, 1838-9, p. 271.
by the courts as coming within the rule. Anderson v. Van Allen, 12 Johns. 342; Ransom v. Jones, 1 Scam. 293; Leigh v. Leigh, 1 Bos. & Pull. 447; Mandeville v. Union Bank, etc. 1 Wheat. 232; Gould v. Newman, 6 Mass. 239; Skinner v. Somes, 14 do. 107; Tuttle v. Beebe, 8 Johns. 155; Van Vechten v. Graves, 4 do. 406; Franklin v. Raymond, 3 Wend. 71; Jones v. Witter, 13 Mass. 304.
3. The admissions of a nominal party to the record, being a trustee only, can not affect the rights of his cestui que trust.Williams v. Judy, 3 Gilm. 282; Root v. Taylor, 20 Johns. 136; Frear v. Evertson, ib. 142; Sprague v. Kneeland, 12 Wend. 161; Kimball v. Huntington, 10 do. 675; Payne v. Rogers, Doug. 407; Cowen & Hill's Notes to Phil. Ev. 663-8; Raymond v. Squires, 11 Johns. 47; Wheeler v. Wheeler, 9 Cowen, 34; Andrews v. Beecker, 1 Johns. Cases, 411.
On the 9th of June, 1846, Dazey made a promissory note to Alexander Mills for $46, payable one day after date. A suit was brought on the note before a justice of the peace, on the 2d of October, 1846, in the name of Mills for the use of Nathan Pinkham. It resulted in a judgment for the plaintiff, and Dazey appealed to the circuit court, where the decision of the justice was affirmed. Dazey took the deposition of a witness, who testified to a conversation had with Mills on the 13th of October, 1846, in which the latter stated that previous to the commencement of the suit, he transferred the note to Pinkham as security for the payment of a debt; and that prior to the transfer Dazey paid him $26, which ought to be credited on the note. The circuit court, being of the opinion that the evidence was inadmissible, excluded the deposition, and the propriety of that decision is the only point in the case.
This presents the naked question whether the declarations of the nominal plaintiff made after he has parted with his interest in the subject matter of the suit, can be introduced in evidence by the defendant to defeat the cause of action. There is a conflict of authority on the question, and we therefore feel bound to adopt the rule which will best subserve the ends of justice. It was decided in the case of Bauerman v. Radenius, 7 Term Rep. 663, that the defendant could give in evidence the admissions of the plaintiff on the record to defeat the action, although such plaintiff was only the trustee for a third person. The same doctrine is asserted in 2 Starkie's Ev. 22, and in the cases of Thomas v. Denning, 3 Harr. & Johns. 242, and Dillon v. Chouteau, 7 Missouri, 386.
On the other hand,...
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