White v. Green, 50 N.C. 47, 5 Jones 47 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 47, 5 Jones 47

JAMES WHITE v. GEORGE N. GREEN.

In a suit brought to recover back money paid for the purchase-of a forged pro- ■ missory note, which had been taken without endorsement, it is not a ground of estoppel that the purchaser had obtained, to his use, a judgment against the ostensible maker, in favor of the supposed payee.

In a suit brought to recover back ' the purchase-money paid to the holder, without endorsement, of a note alleged to be forged, the ostensible maker of such note is a competent witness to prove the forgery, although he had given to the ostensible payee a bond to indemnify him against the consequences of refusing to let his name be used in the collection of it by suit.

One cannot produce his own declarations in evidence, though not interested at the time.

Assumpsit is the proper form of action for the recovery of money-paid on the purchase of a forged note.

ActioN of assujipsit, tried before Bailey, J., at the Spring Term, 1854, of Bertie Superior' Court.

The plaintiff’s declaration contained two counts :

Eirst. That the defendant had sold to him a forged note on one Eason Ward, for the sum of eighty-four dollars.

Secón dly. Eor money had and received to the plaintiff’s use.

The plaintiff produced in evidence a paper writing, purporting to be a note for eighty-four dollars, bearing date 15th of May, 1849, payable to Riddick Freeman, to which the name of the defendant was affixed as a witness, in his proper hand-writing. The body of the note was not in the handwriting of either the defendant or of Riddick Freeman, and there was no evidence going to show by whom the body of the instrument was written. Riddick Freeman died in the month of September, 1850, and. Blount Freeman became bis administrator. The defendant sold the note to the plaintiff on the 10th of February, 1851, which was delivered by the defendant to the plaintiff, but not endorsed or assigned in writing. The plaintiff caused to be issued a warrant against Eason Ward, in the name of Blount Riddick, as administrator, to the plaintiff’s use, and on the trial thereof, the defendant was examined as a witness, who swore to the execution of the note by Eason Ward, and a judgment was rendered against him for the amount thereof by the justice of the peace before whom it was rendered. Whether this judgment was appealed from by Ward, or whether he had paid it, did not appear on the trial of the cause below.

Afterwards, however, the plaintiff brought this action against the defendant, alleging that the note in question was a forgery.

To disprove the allegation of forgery, the defendant offered to prove, that before the death of Riddick Freeman, he (defendant) had repeatedly stated that Eason Ward owed him eighty ©r eighty-five dollars. The evidence was objected to by the plaintiff’s counsel, and excluded by his Honor; for which the defendant excepted.

Eason Ward was tendered as a witness for the plaintiff, and objected to on the part of the defendant. It was shown, in support of this objection, that he had given to Blount Riddick a bond to indemnify him for refusing to permit his name to be used in a suit against W ard for the collection of the note. The objection was overruled, and the testimony admitted ; whereupon the defendant again exceeded. Defendant also objected to the form of the action, but the court overruled the objection.

There was a verdict and judgment for the plaintiff, and an appeal by the defendant.

Smith, for the plaintiff.

Winston, Jr., for the defendant.

Pearson, J.

The judgment taken upon the note in the name of Blount Freeman, administrator of Riddick Freeman, the payee, to the use of the plaintiff, cannot be used by the defendant as an estoppel on the question of forgery. He was not a party to that proceeding ; it was res inter alios acta. Estoppels must be mutual. The justness of the rule is exemplified by this case, because the defendant was the witness upon whose testimony the judgment was obtained. If the plaintiff became satisfied that the note was a forgery, it was right in him not to collect the judgment, and his remedy to, recover back the money paid for the supposed note, ought not to be affected by the fact that he had obtained a judgment.

The case turns upon the competency of Eason "Ward as a witness for the plaintiff. He had executed to Blount Freeman, who had the legal title, a bond of indemnity not to allow his name to be used in enforcing collection of the note. So neither the plaintiff, nor defendant, could reach him at law. The only remedy was in equity, by a bill against him and Blount Freeman, charging that he held the note as trustee, and had combined with the maker to prevent its collection atlaw. It would be immaterial to the witness, whether the bill was filed by the plaintiff or the defendant.

The defendant excepts, because certain declarations of his, made before the death of Biddick Freeman, were rejected.

It is a sufficient answer to say, it does not appear when the defendant acquired the beneficial ownership of the supposed note ; it may have been before these declarations. Besides, we can see no ground for departing from the rule, that one cannot manufacture evidence for himself, although he may not be interested at the time.

There is no- objection to the form of the action. It is settled, that where a counterfeit bank bill or forged note is passed, the money may be recovered back in assumpsit.

Feb OubiaM, Judgment affirmed.