
    Daniel Butler versus Caleb Damon.
    In an action by the endorsee of a negotiable promissory note against the maker the confession of the plaintiff that he had not purchased the note of the endorser, and was not interested in it, except as collateral security for a small part of its amount, due from the endorser to the plaintiff, having been given in evidence,— it- was held that the declarations or admissions of the endorser could not be received, to defeat the action.
    Assumpsit by the endorsee of two promissory notes against the maker. One dated June 28, 1809, for 150 dollars, payable to Marvin Jewell, or order, in sixty-one days, with grace, at the Northampton Bank, endorsed to John Stevenson, or order, and by him to the plaintiff on the 15th of March, 1813. The other note was for 210 dollars, dated May 10, 1810, by Damon to the said Stevenson, or order, payable in one year, and on the 15th of March, 1813, endorsed to the plaintiff.
    At the trial before Putnam, J., at the last May term in this county, there was evidence that the plaintiff had said that he was not interested in the notes, and that he liad not purchased them of Stevenson,' but that they were left with him as collateral security for 50 or 60 dollars, due from Stevenson to him.
    The defendant then offered a witness to prove the confession of Stevenson, to which the plaintiff objected; but * the witness was admitted, on the ground that, as the suit was for the benefit of Stevenson as well as Butler, as appeared from Butler's confession, the confession of Stevenson was admissible. The witness testified that, in August or September, 1816, Stevenson had said that the notes were not given for any value, but were accommodation notes.
    A verdict being returned for the defendant, a new trial was moved for by the plaintiff, on account of the admission of evidence of the confessions of Stevenson, as aforesaid.
    
      Mills, for the plaintiff.
    The plaintiff, as pledgee of the notes, may maintain an action, although he is not interested to the whole amount of them. As between him and the maker, lie has the same rights as if he had paid the whole sum due upon the notes,  subject to any defence which the defendant could have against the payee. The confessions of the endorser, made after the assignment to the plaintiff, cannot affect the rights of the endorsee. His release would have no operation upon the plaintiff’s rights. Stevenson is not to be viewed as a party to the action; and if he were, it could only affect the suit as respects the surplus beyond what is due to Butler. 
       The admission of such evidence would be extremely mischievous, and injurious to the rights of assignees of choses in action not negotiable, as well as to endorsees of negotiable securities. Stevenson could not have been a witness, to prove the want of a consideration;  his confessions, then, were wholly inadmissible in evidence.
    
      Howe, for the defendant.
    After the proof of the plaintiff’s confession, Stevenson became the real plaintiff in interest, and thus his confessions became legal evidence. His interest in the action is far the greatest. Indeed, he is interested to the whole amount, for he is still responsible to Butler for the demand for which the notes were pledged.
    They are, at least, joint owners of the notes in suit, and the confession of one of several copartners is sufficient to defeat their action. In this case, an objection to the * confessions of Butler would have more force, as his interest in the action is less than Stevenson’s. In the case of Bauerman & Al. vs. Radenius, 
       it was determined that the defendant may give in evidence the declarations or admissions of the plaintiff on the record, to defeat the action, although such plaintiff appear to be only a trustee for a third person. A fortiori, may the declara lions of cestui que trust be admitted. In the case at bar, Butler is but the trustee of Stevenson, the cestui que trust. In actions against the sheriff for the default of his deputy, the admissions or confessions of the deputy are always received in support of the action.
    
      
       1 B. & P. 652, Collins vs. Martin.
      
    
    
      
       14 Mass. Rep. 291, Jenkins vs. Brewster.
      
    
    
      
       1 D. & E. 296, Walton vs. Shelly.—4 Mass. Rep. 156, Churchell vs Suter. —16 Mass. Rep. 502, Manning, Exr., vs. Wheatland.
      
    
    
      
      
         7 D. & E. 663.
    
   By the Court.

We think the evidence of Stevenson’s declarations was improperly received against the plaintiff in this action. He is not a party to the suit. The principle of the decision in Churchill vs. Suter is applicable here. A party to a negotiable security shall not be received to show facts, antecedent to the transfer, whereby the holder is to be defeated of his recovery, As it appears, from the evidence of the plaintiff’s confessions, that he came lawfully to the possession of the notes, as a pledge, he has a right to recover the whole amount due upon them ; and he will be accountable to the pledgor for the surplus when received.

New trial ordered. 
      
      
         Vide note to Manning, Exr., vs. Wheatland, 10 Mass. Rep. 505. The rule is well settled otherwise in England.
     