
    * James Andrews versus Ebenezer Herring.
    A stranger to a suit in which a trustee is examined, is not concluded by the examination from proving that there were other facts within the knowledge of the trustee, which he did not disclose, or that there was collusion between him and the plaintiff or defendant in such suit.
    Assumpsit on the sale and delivery of a hogshead of sugar. The action was tried on the general issue before the Chief Justice at the last November term, and a verdict having been found for the defendant, the plaintiff moved for a new trial, on the ground that the verdict was against evidence.
    From the Chief Justice’s report of the evidence, it appears that the plaintiff proved the delivery of the sugar on the defendant’s written order, in which he promised to call and settle for it; and on the delivery, the sugar was charged to the defendant.
    The plaintiff having prima facie made out his case, the defendant set up as his defence that the sugar was delivered in part payment of a promissory note for goods, which he held against the plaintiff, which he had given to one Isaac Walker, and which, not being negotiable, Walker had assigned to him. To prove this defence, he produced the plaintiff’s note to Walker, with his name endorsed thereon in blank. He then produced the examination of the plaintiff in a suit in which he had been summoned by Francis Brinley, as the trustee of Walker. On this examination the plaintiff stated that the defendant, Herring, who was the father-in-law of Walker, had informed him that he held the said note, and that he wanted goods in payment, but that he had never produced the said note; that he delivered the sugar to Herring, and charged it to him, but he delivered it under the impression that Herring held the note, and was entitled to the goods; and that he did not know that the sugar was ever endorsed on it. He further added that Walker had told him, when the note was given, that it was to be assigned to Brinley, who had advanced the money for it, and that Brinley, after the delivery of the sugar, had informed him that Walker had deceitfully procured the note *from him on the pretext [*211 ] of obtaining payment, but had given it to his father-in-law, Herring.
    
    The plaintiff then produced evidence that on this examination he was adjudged the trustee of Walker.
    
    The cause stood over to this term upon the motion for a new trial; and now Richardson, of counsel for the plaintiff, objected to the verdict, because there was no proof of any assignment of the note to the defendant, made bond fide, and for a valuable consideration; and because it appears that the plaintiff was adjudged the trustee of Walker on the same examination, which was produced by the defendant as the confession of the plaintiff.
    
      J. T. Austin, for the defendant
    insisted that there was no evidence that the judgment was bond fide, it not appearing that the plaintiff had satisfied any part of it, and if it was, it might be on the ground that the sugar did not discharge the whole of the note.
   The opinion of the Court was delivered by

Parsons, C. J.

Upon considering the evidence and arguments in this case, we are satisfied that the facts laid before the jury are much too imperfect to enable us to form a correct opinion on the merits of the cause.

The defendant ought to have proved a bond fide assignment of the note for a valuable consideration, especially when there is. reason, from the plaintiff’s examination which the defendant produced in evidence, to suspect fraud in the transaction.

The plaintiff, if in fact he has satisfied the judgment, as he now alleges, should have given some evidence of it, or if he had not, he might have assigned a reasonable cause for it, that all suspicion of collusion might have been removed. But as the judgment cannot be presumed collusive without some evidence, it must have been inferred by the Court that there was no assignment by Walker. For if such assignment had been admitted, no part of the [ * 212 ] note would have been due to him, the equitable * interest of the note being in Herring, and the plaintiff could not have been adjudged trustee.

We do not consider that a stranger to the suit, in which a trustee is examined, is concluded by the examination from proving that there were other facts within the knowledge of the trustee, which he did not disclose, or that there was collusion between him and the plaintiff or defendant in such suit. But when a party in a suit will produce the examination of a trustee as evidence of his confession, he ought to be bound by it. As therefore there was no evidence of any assignment of the note, and as the legal effect of the judgment against the plaintiff as trustee might.have been mistaken, we are satisfied that the justice of the case requires a new trial, in .which each party may come prepared for a more perfect investigation of all the facts, which are relative to the merits of the cause.

Let a new trial be granted, but without costs to be paid by the plaintiff, as it appears that there was a defect in the evidence produced to maintain the defence. If the defendant should, on the new trial, recover upon the merits, he may then tax the costs of this trial.  