Hopkins v. Banks

* Curia, per Woodworth, J. The plaintiff’s demand did not pass by the assignment of 1821; for the reason that it had been previously assigned; but if this suit was commenced without any authority whatever from Seymour, the plaintiff had no right to proceed. I am inclined to think, however, from what appears, that Seymour did not object to the suit being prosecuted; and if so, it must be considered for his benefit as assignee, and to enable him to execute the trust reposed in him by the assignment. The plaintiff, for aught that appears, is a nominal party ; his name being necessary to conduct the proceedings according [653] to law. If, then, Seymour is to be considered as a trustee, was he not interested ? He had no interest in the money to be recovered; but, I apprehend, in case of failure, he would be liable for the costs, on application for a rule against him, directing him to pay them. This constitutes an interest, which, it seems to me, should have excluded him. His evidence went strongly to show that the defendants ought to have taken up the note of 200 dollars. Neither the evidence contained in Stephen Gould’s deposition, nor any admission of his, appears to have been before the referees. It cannot, therefore, be regarded in deciding on .the report made. Besides, as the co-partnership of the defendants was dissolved before the commencement of this suit, the admission by one, of their joint liability, is not competent evidence, unless for the purpose of avoiding the statute of limitations. (3 John. 536; 6 John. 267.) If Stephen Gould had been sworn before the referees by consent, and had testified to the facts contained in his deposition, the evidence would have been competent. But it is contended, that if the report be set aside, enough appears to show that the result would not be varied. This” argument is founded partly on the fact that the referees made no allowance of interest to the plaintiff. If this be granted, and that the plaintiff was entitled to interest on such balance as remained, after deducting the set-off, *still it will be seen that if the two disputed notes are allowed, no balance would be due to the plaintiff. From the evidence before us, enough does not appear to authorize the court to reject these notes. They appear to be the principal subject of contention between the parties; and probably may be satisfactorily explained, should the cause be sent back to the referees, I am of opinion that the report of the referees be set aside; the costs to abide the event. Buie accordingly.