
    STEPHEN SMITH, Respondent, v. BETHUEL PHELPS, Appellant.
    See the case of Brown v. Graves, which governs this case, page 118.
    Appeal from the District Court of the Fourth Judicial District.
    Smith filed his complaint against Phelps, alleging that on the . 29th of September, 1849, the defendant executed his promissory note for §1437, payable six months after date, “with interest,” to Owen Spencer, or order; and that Spencer indorsed the note to the plaintiff; whereby the defendant become indebted to the plaintiff in the amount of the note, with interest at twelve per cent.- per annum from its date; and praying judgment accordingly. The defendant, by bis answer, set up that Spencer was the owner of the note till after maturity; before which time the defendant paid him the- amount of the note and interest; and that Spencer become indebted to the defendant before the maturity of the note, in a sum exceeding the note and interest, for goods sold, and money had and received; and which the defendant claimed as a set-off. The cause was tried, by the Court sitting as a jury. It was shewn that the note was indorsed after maturity: and there was evidence that the defendant had paid money to Spencer before such indorsement; but the evidence was conflicting as to whether those payments were made on account of the note. The defendant objected to the plaintiff’s proving certain declarations made by the defendant’s agent respecting such payments; but the objection was overruled, and the defendant excepted. The Court found for the plaintiff for $1186.82, and rendered judgment accordingly. The defendant appealed; and a statement of the evidence, &c., was annexed to the record. No motion for a new trial appeared to have been made.
    
      E. CooJc, for the appellant.
    The Court erred in admitting evidence of the declarations of the defendant’s agent. The record shows that the defendant objected.
    
      Chetwood, Edwards, Bose and Turk, for the respondents.
   Per Curiam__Justice Heydeneeldt.

For the reasons assigned in the case of Brown v. Craves, just decided, the judgment in this case is affirmed.

The appellant petitioned for a re-hearing; which was granted at the ensuing term.  