
    *Phelps v. Frazer.
    December, 1824.
    Bonds — Debt by Assignee — Evidence.—if an action of debt "be brought by tbe assignee of a bond against tbe obligor, and tbe latter pleads payment to tbe plaintiff, be cannot give evidence of payment to tbe assignor.
    Frazer, assignee of Goodwin, brought an action of debt on a note under seal, against Phelps, in the County Court of Pittsyl-vania. The defendant pleaded payment to the plaintiff. At the trial, the defendant offered to prove the hand-writing of Goodwill, (the ogligee and assignor of the note,) to a paper purporting to be a receipt of part of the money, due by the said note. This evidence was rejected by the Court, because there was no proof of the handwriting of the subscribing witness to the said receipt. Whereupon, the defendant proved by a witness, that the said subscribing witness was a resident of the State of Tennessee, who before her removal, lived in the county of Halifax, and offered to prove by his own oath that he had made enquiry, and could find no person who could prove the hand-writing- of the said subscribing witness. But, the Court refused to admit the defendant to prove the said fact, by his own oath. The defendant excepted. Other evidence was offered, not material to be mentioned.
    The jury found a verdict for the plaintiff. The defendant moved the Superior Court of Law for a writ of supersedeas, which motion was over-ruled.
    On a petition .to the Judges of the Court of Appeals, a supersedeas was awarded to the judgment of the Superior Court.
    Call, for the appellant.
    Leigh, for the appellee.
    *December 8.
    
      
      See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on “Debt. The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
   JUDGE CABELL,

delivered the opinion of the Court.

The issue having been joined on the plea of payment to the plaintiff, who was as-signee of the writing obligatory on which the action was brought, any evidence whatever, proving a payment to the assignor, would have been improper. It seems, therefore, that the questions raised in the argument of this case, are not presented by the record. The judgment of the Superior Court, refusing the supersedeas, was correct, and is to be affirmed. 
      
      Judge Brooke and Carr, absent.
     