
    Arthur Brown vs. Patrick H. McGraw, use of William Wright.
    The admissions or declarations of the assignor of a chose in action, made while he is the holder, and before assignment, are evidence against .his as-signee, and all claiming under him; in this state this rule is universal.
    Therefore, in an action on a note against the maker and payee, wherein the maker only-has plead, on the trial of the issue, it will be competent for the maker to prove that the payee, while holder of the note, Acknowledged that the note was given to secure a bet upon an election; which, if true, would defeat the action under the statutes of this state against gaming ; and it will be immaterial whether the indorser is a party to the issue or not.
    In error from the circuit court of Adams county; Hon. Wiley P. Harris, presiding judge.
    Patrick H. McGraw, for the use of William Wright, sued Arthur Brown as maker, and Thomas Ferguson as indorser of a note for one hundred dollars, payable to Ferguson. Brown plead non-assumpsit. On this issue a trial was had; and the defendant offered to prove, by William Gay, that the payee of the note, of which he was the holder, and before assignment, acknowledged to him that the note was given to secure a bet on an election. The court below excluded the evidence; the defendant excepted; and on the verdict of the jury being rendered for the plaintiff on the issue, and the judgment of the court against both defendants, Brown sued out this writ of error.
    
      Montgomery and Boyd, for plaintiff in error.
    The admissions were competent against one subsequently acquiring title from the indorser. 2 Phil. Evid. (Cow. & Hill’s ed.) note 446, p. 387; lb. note 481, p. 644; lb. p. 663.
    
      
      J. A. T. Midderhoff, for defendants in error,
    contended,
    1. The defendant, Ferguson, could not be permitted to testify upon his oath before the jury, that the note was given to secure a bet on an election, because he is a defendant in this case; his statement is not admissible; and, therefore,
    2. An “acknowledgment” by the defendant himself, that the note was given to secure a bet on an election is not proof that the note was so given; or, in other words, does not prove the issue in this cause.
   Mr. Justice ThacheR

"delivered the opinion of the court.

McGraw, use of Wright, instituted his action upon a promissory note against Brown, the maker, and Ferguson, the payee. Both defendants were served with process, but Brown only pleaded to the action. Upon the trial, Gay was offered as a witness to prove that Ferguson, the payee, acknowledged to him, the witness, while he, the payee, was the holder of the note and before its assignment, that the note was given to secure a bet upon an election. This evidence was excluded by the circuit court, and its judgment, in this respect, was excepted to by the defendant, Brown.

The admissions or'declarations of the assignor of a chose in action, made while he is the holder and before assignment, are evidence against his assignee and all claiming under him. This rule is universal, with a solitary qualification as to bills of exchange and promissory notes, which pass to a bona fide holder in the course of trade. This qualification or exception does not subsist in this state, in consequence of the statute H. & H. 373, sec. 12, making promissory notes, &c. assignable by indorsement, and affording to a defendant, in an action thereon, the .same defence as assignee, that existed to his assignor; and so with us the rule is universal.

It is not a sufficient objection to the admission of this evidence, that the assignor of the note was sued in the same action. He was not a party to the issue, and therefore his admissions were properly named; and if he had been, then of course, under the above rule, they would have been admissible.

The evidence was pertinent to the issue, because, if believed, it will entirely defeat the action under our statutes running against gaming, &c.

The judgment must be reversed, and the cause remanded for a new trial.  