
    Gurdon Manwaring against Christopher Griffing.
    MOTION for a new trial.
    This was a scire-facias against Griffing, as garnishee, in a process of foreign attachment.
    The original process was brought against Francis Hazard; and Griffing, the defendant, was duly served with a copy thereof, on the 6th of September, 1809.
    The question relating to the indebtedness of Griffing to Hazard, depended on the following facts. Griffing, at the time the copy was left with him in service, was the surviving partner of Robert Starr, late joint merchants under the name and firm of Griffing & Starr ; which partnership was dissolved on the 1st of January, 1806. George I. Furnace drew a bill of exchange, at Demerara, on Henderson & 
      
      Seller, of Liverpool, for 200/. sterling, in favour of MU Ham Leeds, dated the 31st of January, 1805. Leeds endorsed the bill to Griffmg & Starr, by whom it was endorsed to Hazard, The bill, on the 7 th of December, 1805, was protested for non-acceptance, and on the 10th of April, 1806, was protested for non-payment. The defendant laid no per.-onn! notice of the dishonour of the bill : But it was claimed, by the plaintiff, that such notice had been given to Robert Starr.
    
    
      
      A. drew a bill of exchange m fa-vour of B., on C., for 2001. sterling, dated tlie31st of January, 1805; I! endorsed the bill to G. and S'., joint partners, by whom it was endorsed to H. The bill was protested both for non-accept, payment; but G. had no notice of its dishonour. After the dissolution of the partnership subsisting' between G. and S., and after the bill had been protested, D, by-process of foreign attachment, brought his action against II, and a copy was duly left in service with G , as his agent, &c. On a scire facias against G., J). offered to prove by the testimony of G,, the confessions of II, relating to the fact of notice having been given to S. of the dishonour of the bill ; and also relating to the fact that II. had shewn to G. the deposition of C. S. containing evidence of such notice ; it was held, that such evidence was inadmissible. anee and non-
    
      On the trial, before the Superior Court, the defendant having made his disclosure, the plaintiff proposed to enquire of him, “ what information Hazard had give» him relating to notice to Robert Starr of the dishonour < f I he hill ; and whether Hazard had not shewn him, (the defendant,) the deposition of one Charles Starr, containing evidence of such notice ?” The defendant objected to the admission of this evidence ; and the court adjudged it to be inadmissible. The plaintiff, thereupon, introduced Charles Starr, the deponent above mentioned, as a witness, who testified fully before the jury, on the trial.
    The jury returned their verdict for the defendant: Whereupon, the plaintiff moved for a new trial, on the ground that the court erred in rejecting the evidence relating to the declarations of Hazard, and the exhibition of the deposition of Charles Starr, as above stated ; which motion was reserved for the consideration and advice of the nine Judges.
    
      N. Smith and Gurley, argued in support of the motion.
    They cited Whitcomb v. Whiling, Doug. Rep. 652.
    
      Goddard, contra, cited Momatt v. Howland, 3 Day’s Rep. 353.
   Smith, J.

This was a scirc-Jacias, in which, the plaintiff claimed that the defendant was indebted to one Francis Hazard, au absconding debtor.

On the trial to the jury, the indebtednes which the plaintiff attempted to prove against the defendant, was, as surviving partn< r of the firm of Griffin & Starr ; which indebtedness, ih(3 plaintiff insisted, arose from thru- endorsement of a certain bill of exchange, which had been dishonoured ; but whether the defendant was indebted to Hazard, or not, depended on the question of fact, whether due notice had been given of the dishonour of the bill.

It was admitted, that notice had not been given to the defendant, personally ; but the plaintiff insisted, that it was given to Starr ; and to prove this fact, the plaintiff's counsel proposed to enquire of the defendant, what Hazard informed him respecting notice to Starr ; and whether Hazard did not show him a deposition proving such notice ? The court did not permit this enquiry to be made ; which is the ground of the present motion for a new trial.

In my judgment, the decision of the court was perfectly correct. This is an action in which the plaintiff may call on the defendant to disclose, and when thus called on, he stands on the same ground with any other witness; and is not bound to testify to any facts which would not be proper and admissible, when coming from other witnesses. The attempt here was, to prove notice, by the declarations of Hazard, the party in interest, making affirmations and declarations in his own favour. Nothing could be more clearly inadmissible. Had a proposition come from the other side, to prove, that notice had not been given, by the confession of Hazard against himself, he being the party in interest, it would have presented a very different question.

In regard to Hazard’s shewing a deposition proving notice, it may be said, that as the deposition was in the hands of Hazard, with no other proof of its authenticity, than his own declarations, it stands on no higher ground than the other evidence offered. If any such deposition exists, or could he obtained, it would, in itself, be good evidence.

I would not advise a new trial.

All the other Judges concurred in this opinion, except Braimrd, J.j who did not judge.

New trial not to be granted.  