
    Gilman's adm'rs. vs. Pugh & Doyle.
    June 12.
    
      The obligor in a note, is a competent witness to prove the assignment, in an action, between the obligee and assignee, in which the fact of the assignment is contested. 1.
    Statement of the case.
    The obligor in a note, is a competent witness to prove the assignment in an action between the obligee and assignee, in which the fact of the assignment is contested.
   Opinion of the Court.

THIS was a bill filed by Pugh and Doyle, in which they allege, that they held a note upon Reel for $3,512 50 ; and that one of them having left the state, and the other being about to do so, they had endorsed the note to Gilman, in trust, to be collected for them ; that Gilman suddenly and unexpectedly died, before he had collected the money, leaving his estate insufficient to pay his debts; and that his administrator has brought suit and recovered judgment upon the note against Reel; and they pray, that he may be enjoined from collecting the judgment, and that they may have the benefit of it.

The administrator admits the note and the recovery of the judgment thereon by him ; but denies that the endorsement on the note was made to Gilman for collection only, and insists it was for a valuable consideration, and for his own benefit.

1. The court decreed the relief prayed by the bill, and the defendant has appealed to this court.

The proof in the cause, we think, is sufficient to sustain the decree.

The repeated declarations of Gilman, that he held the note for collection, for the benefit of the complainants, are proved by the testimony of two witnesses. One of these is, to be sure, the obligor in the note, and his competency was assailed in the argument in this court. But as no objection was made in the court below to reading his deposition, it is too late to make the objection, for the first time, in this court. Besides, he is equally bound, let the suit be decided as it may ; and the objection to his competency would, if even it had been made in proper time, have been unavailing.

To the other witness there is no objection made, either on the score of his competency, or of his credit ; and the testimony of these witnesses, is, undoubtedly, sufficient to justify the decree. There are, indeed, other circumstances proved by both parties; but they have so remote a bearing upon the point in issue, and are so equally balanced, as to be entitled to but little weight, and do not, in our apprehension, deserve particular notice.

The decree must be affirmed with costs.  