Watson v. Bailey.

I. The judge erred in rejecting the defendant as a witness. 1. The witness Gaige was an "assignor of a thing in action or contract," within the meaning of section 399 of the Code. The note was a "thing in action or contract." (Kent. Com. 2 vol. 351; Chitty on Bills, 5, 245.) The witness Gaige was an "assignor." Webster's Dictionary words, "assign," "assignment," "assignor." (Code, sec. 112, and note to page 405, 2d ed.)

II. The defence of usury is set forth in the answer; if defectively set forth, the defendant should have been allowed to amend. (Utica Ins. Co. v. Scott, 6 Cowen 606.)

III. The defendant ought now to be allowed to amend.

T. Romeyn, for plaintiff, contended that→

I. There was no error in the court's overruling the application to receive the testimony of Bailey. Gaige, the witness for the plaintiff, was not the assignor of a thing in action within the meaning of § 399 of the Code. A negotiable note is not a chose in action, within the meaning of this section. At least,

as between a blank endorsement and the holder (as was the case here) the latter takes as bearer. This has been repeatedly held in questions of jurisdiction in the U. S. courts. (2d Peter 326; 1 Mason 243.)

II, The evidence as to usury was properly rejected, the answer not having sufficiently set forth an usurious agreement. (10th Barb, 321; 12th Barb. 603.)

III. The application to amend was addressed to the discre tion of the court, and its refusal is no ground of error.

BY THE COURT. HOFFMAN, J.-Two questions only are raised.

I. Charles W. Pratt made his promissory note in favor of Samuel Bailey, the defendant. The latter endorsed it in blank, and transferred and delivered it to Preserved Gaige, and Gaige, in the language of the complaint, "transferred and delivered the same to the plaintiff, who is now the lawful bearer and owner of the same." It is sufficiently shown by the evidence that Gaige delivered this note without endorsing it. Gaige was

Watson v. Bailey.

examined as a witness on the trial on behalf of the plaintiff, and after his examination, the defendant offered himself as a witness to the same points as those to which Gaige had been examined. Upon an objection made, the witness was rejected, and this rejection presents the first exception taken.

The ground to sustain the admissibility of the defendant is, that Gaige was an assignor of a thing in action through which the plaintiff derived title, and that the adverse party may, in such case, offer himself as a witness to the same matter, under the 399th section of the Code.

Whether this section applies to the case of endorsers of negotiable paper at all, is a question we do not feel called upon to discuss. We are clearly of opinion, that the case of an endorser delivering a note without his own endorsement, is not within the provision,

It deserves notice that the holder of a note or bill may strike out all intervening endorsements; may omit to state them in his declaration after the first endorsement in blank; and may aver that such first endorser endorsed immediately to himself (Byles on Bills, 87); and if a bill be once endorsed in blank, although afterwards endorsed in full, it will still, as against the drawer, payee, and acceptor, be payable to bearer; though as against the special endorser, title must be made through his endorsee. (Smith v. Clark, Peake 225.)

The effect of this rule of law is, that a holder, however remote, may overlook the derivation of his title through a series of endorsers, and treat the payee of the note as the original source of his right. We cannot conceive that the Legislature meant, in the section before us, to adopt a rule which would conflict in principle with so settled a doctrine of mercantile law.

II, The next question arises upon the refusal of the judge to admit testimony to establish the defence of usury in the note, on the ground that the answer did not set forth sufficiently the facts constituting the usury, or usurious agreement.

The answer avers merely, "that the said Gaige took and exacted from the said Pratt an illegal usurious interest for the loan and forbearance of the moneys to the said Pratt on the said note, when he received the same in violation of the statute;

Coursen v. Hamlin.

and that he received a greater interest than at the rate of seven dollars for $100."

It is needless to dwell upon this point. The answer is wholly insufficient to warrant the production of any testimony, and the application to amend it at the trial was also rightly denied. Both these positions rest upon authorities so numerous and consistent as to establish truisms in the law.

The appeal must be dismissed, and the judgment affirmed, with costs.

WILLIAM A. COURSEN v. FREDERICK V. HAMLIN and others.

An order for the payment of money under subdivision 5, § 244 of the Code, will not be made, unless the answer contains a plain, explicit, and full admission that a definite sum is due to the plaintiff. It will not be made when, in order to ascertain whether a specific sum is due, a critical examination of the pleadings, or of books and accounts, is necessary.

The provision in the Code is regarded by the court as a recognition and declaration of the rule which formerly prevailed in the Court of Chancery, and as going no further.

The rule in that court was settled, that an order for the payment of money into court, or to a party before a final decree, could not be made unless upon an explicit and full admission by the defendant in his answer, or upon his examination before a master, that a specific sum was due.

A counter claim cannot be set up in an answer, which cannot be decided without bringing other parties before the court, who have no interest in the determination of the causes of action set forth in the complaint.

A partner is not allowed to claim for his services in settling the affairs of the firm, unless a special agreement is averred and proved.

Order at special term, so far as it directed a payment to plaintiff, reversed; in all other respects affirmed.

(Before OAKLEY, Ch. J., EMMET and HOFFMAN, J.J.)

November 22; December 10, 1853.

THE Complaint was filed by the plaintiff, as the special partner in a limited partnership, against the defendants as the general partners, who conducted the business of the firm under the name and style of Hamlin, Sloan & Squires, and the relief demanded was, that the defendants should be enjoined from D.-II. 33

Coursen v. Hamlin.

interfering with or disposing of the goods, property, or credits, of the partnership; from collecting any moneys due thereto; that a receiver might be appointed to take charge of all the assets of the firm, and make distribution thereof; and that the defendants Hamlin and Sloan, under the direction of the court, should render a full account of the partnership, and of the goods, credits, and effects belonging thereto, and that in such accounting the plaintiff might be allowed interest on his share of the capital remaining unpaid from the time of its dissolution, and might be paid the amount due to him from the firm, with interest thereon, and might have such further or other relief as might be just.

The complaint charged that Hamlin and Sloan were each of them largely indebted to the firm for moneys drawn out by them beyond the shares to which they were respectively entitled, but admitted that nothing was due from Squires. Hamlin & Sloan answered together, Squires separately. Those parts of the pleadings upon which the questions decided arose, will be found fully stated in the opinion of the court.

The cause was now heard upon the pleadings and upon the following case and bill of exceptions.

The issues of fact joined in this action came on to be tried at a special term of this court, held by the Hon. Win. W. Campbell, one of the justices thereof, without a jury, on the thirtieth day of June, in the year 1853.

The counsel for the plaintiff opened the cause upon the pleadings and claimed that there was an amount admitted by the answer of the defendants for distribution, and moved that the court order said amount to be paid by the defendants to the plaintiff, and a reference to take and state the accounts of each of the partners in the partnership mentioned in the complaint, and to ascertain, determine and settle their rights and interests respectively in the assets which remain uncollected and belong to the said late partners.

The counsel for the defendants, Hamlin and Squires, thereupon objected to the granting of said motion, and insisted that this action was founded upon the agreement for a copartnership entered into between the parties and the relation which they had sustained towards each other under that agreement

Coursen v. Hamlin.

during the time specified in it, and that the claim of the plaintiff therein was entire to recover the whole amount, which upon the taking of the accounts between the parties, should be found due to him from the defendants, or any or either of them, and that but one judgment could be given in the action for the payment of money by the defendants to the plaintiff. That it was not competent nor lawful for the court in this case, to render judgment for the plaintiff for the amount collected by the defendants and admitted in the answer (if any) and then to order a reference in the case to ascertain what other, or further sums might be due from the defendants to the plaintiff, and thereupon give a further judgment for the amount, (if any) which should be found to be due. That the whole cause should be tried by the court or referred.

His honor the judge overruled said several objections, and decided thereupon, that it was competent to the court to grant the motion for an order for the payment to the plaintiff, of the amount admitted by defendants' answer, and for a reference to take and state the partnership accounts, to which decision of the said judge, the counsel for the defendants Hamlin and Squires, then and there excepted.

The court then looked into the complaint and answer of the said defendants, and thereupon decided that the sum of six thousand dollars was admitted by the defendants, upon said pleadings, to be in their hands ready for distribution, and which should be adjudged to be paid by the defendants to the plaintiff, and directed an order accordingly for its payment. To which decision the counsel for the defendants, Hamlin and Squires, then and there excepted.

The counsel for the defendant, Frederick V. Hamlin, then further objected to a reference, to take and state the accounts of the partnership referred to, and set up in the complaint, on the ground that the answer of said defendant Hamlin, sets up a set off or counter claim growing out of previous copartnerships. The counsel for the plaintiff insisted that said claims were not, nor was either of them, a subject of set off, under statute of set off, nor of an equitable set off, nor a counter claim, for which a separate judgment could be rendered for the defendant, Frederick V. Hamlin, in this action, against the plaintiff, under the