
    
      Jesse Bishop vs. George B. Tucker.
    
    What a witness who is out of the State, formerly testified in another suit between the same parties, cannot be given in evidence if the matters in issue are not the same.
    A defendant who, when sued, is in possession of a sealed note drawn by the plaintiff, cannot use it as a discount, though after he is sued he gets an assignment of the note which is dated back before the writ was issued.
    
      Before WitheRS, J. at Union, Fall Term, 1850.
    This was an action on a receipt, dated 13th January, 1843, by which Tucker, the defendant, acknowledged that he had received from Bishop, the plaintiff, a sealed note, then due, which Bishop held on one George Clarke, for $197 50, “ which amount I promise to pay to the said Jesse Bishop, when I collect the note, or, if not collected, to return the said note unto the said Jesse Bishop.” On the receipt were indorsed by Bishop, two payments by Tucker, amounting to $53 86. The plaintiff closed his case after introducing the receipt in evidence.
    In the defence, it appeared that in January, 1843, there was a settlement in contemplation between Tucker and George Clarke; that Tucker, desiring to use the note for $197 50 in that settlement, applied to the plaintiff for it — received it from him, and gave him the receipt on which this aclion was brought. Clarke and Tucker failed to make an adjustment of their demands, whereupon Clark sued Tucker on the 23d February, 1843. Tucker pleaded in discount the note for $197 50, which presented on the back of it an assignment by Bishop to Tucker, bearing date in January, 1843; but upon the trial of that case, between Clarke and Tucker, on the 18th October, 1845, Bishop was called by Clarke and proved that the assignment was not, in fact, made until after Clarke had instituted his action.— Thereupon, Tucker took an order to withdraw the note, and by reason thereof, a verdict, for a sum less than the amount of the note, went against him in favor of Clarke, with considerable costs. A witness for the defendant testified that, on the evening of the day when this verdict was rendered, Tucker offered the note hack to Bishop, and demanded a return of the money he had advanced; that Bishop declined, observing that he had $50 sure, and he believed he would hold on to that. Another witness for the defendant testified, that in 1843, Tucker paid Bishop $30 on account of a note received from him to be discounted against Clarke, and in case Tucker failed to obtain the discount, Bishop was to refund; and that Bishop then also acknowledged the receipt of $23 and some cents before on the same account and condition. It was not until after this last witness had testified that the defendant was allowed to introduce, in evidence, the record of Clarke against Tucker, to shew that Tucker had filed the note in question, as a discount in that action, and the minutes of the Court to shew that he had taken an order to withdraw it, it being admitted that Bishop had proved, on the trial, that the assignment had been made, in fact, after action brought.
    For the plaintiff a witness testified that, on the day the case of Clarke against Tucker was tried, but after the trial, he heard Tucker say he had received a note from Bishop to balance with Clarke, and wanted Bishop to take it back, as he had failed to get it in settlement with Clarke, and to pay back the money he had advanced; that Bishop refused, saying he had once offered to take it back and refund the money, but Tucker refused, giving as a reason, he wanted to retain the note that he might have enough to throw Clarke in the costs. That he heard Bishop tell Tucker to sue Clarke on the note. That Tucker asked Bishop what he should do if he sued Clarke and failed to get the money; Bishop replied he would not look to him for it. That Bishop was sworn on the trial between Clarke and Tucker, and said the note was not assigned till after suit, but that Tucker had received it before. For the plaintiff, it further appeared that, on the 20th February, 1846, Tucker brought an action in the sum. pro. jurisdiction to recover back'from Bishop the $53 86 which he had paid him on account of the Clarke note; and that there was a non-suit which, on appeal, was sustained. But the plaintiff was not allowed to introduce in evidence a decree which the Judge who tried that case had first written for the defendant therein (Bishop) and had then struck out and granted a non-suit ; nor was he allowed to prove the grounds of appeal, on the part of Tucker in that case, and the report of the presiding Judge. His Honor also ■ refused to allow the plaintiff to prove what George Clarke, who was out of the State, hut alive, had sworn by deposition upon the trial of that case, on proof by one of the Commissioners who took his testimony.
    The case went to the jury, and' his Honor charged them that if the assignment of the note was not made until after action was brought by Clarke, Tucker could not, sustain that item of discount. That if both parties intended, when Tucker undertook to collect the note, that he was to collect by discount, then if he had done all he could to collect ill that form, and failed, (for he was bound to all practicable diligence) and he immediately offered the note back, his obligation was discharged. ' But, if he undertook to collect by discount if he could, and, failing in that, to use all other practicable means, this he had not done, because he could have sued Clarke and did not, and Clarke had departed the State with his property.
    The jury found for the defendant; and the plaintiff appealed, and moved this Court for a new trial, on the following grounds.
    1. Because the Court rejected evidence of what George Clarke swore in the case of the present defendant against the present plaintiff on the same subject matter in controversy, in. the first case, Clarke being- out of the State.
    
      2. Because the record in the case, George Clarke against the present defendant, was admitted in evidence.
    3. Because the defendant, in the case of said Clarke against him, voluntarily withdrew the note in question as a discount.
    4. Because, from the evidence in the case of Clarke vs.- Tuck* er, the note- might have been discounted in that case, as he was the owner of it before suit was brought, and the assignment had relation back to the transfer, and Clarke knew Tucker had it when he. sued Tucker.
    
      5. Because it was proved clearly, that the plaintiff had offered 
      to take the note hack from the defendant and refund the money paid on the receipt, and defendant refused to let him have it, saying he wished to keep it as a discount against Clarke.
    6. Because defendant might have collected the note from Clarke, and there is no proof he did not.
    
      7. Because the written evidence of the receipt ought not to be varied by parol testimony.
    8. Because the Court refused to let the plaintiff prove that Judge Evans, who tried the case Tucker vs. Bishop, had written a decree for defendant in that case after its trial on the merits, and gave a non-suit at the instance of the plaintiff; and because he also refused to let plaintiff offer in evidence the grounds of appeal on the Judge’s decision in the same case, served on the plaintiff’s attorney in the present case.
    9. Because there is no evidence that the Court rejected the said note as a discount in the case of Clarke vs. Tucker, and if it had, Tucker should have appealed.
    
      Herndon, for the motion.
    Dawkins, contra.
   Curia, per

O’Neall, J.

The first ground of appeal presents the question, can the depositions of a witness, who, when examined, was out of the State, and who is still out of it, in a former case, between the same parties, be read in evidence in a subsequent case 1 The rule generally is, that what a witness, who is now dead, beyond seas, or insane, formerly testified between the same parties, and on the same matter in issue, may be given in evidence. 1 Green. Ev. sec. 163 — Drayton vs. Wells, (1 N. & McC. 409). But I should hesitate long to admit depositions of a witness out of the State, under that rule. For it will be at once seen, that he has not removed since his former examination ; he is now exactly where he was then; the same means which then obtained his examination can now obtain it. Mr. Greenleaf, in his 1st. vol. note to sec. 163, states a similar matter thus. — “ If he (the witness) is merely out of the jurisdiction, but the place is known, and his testimony can be taken under commission, it is a proper case for the Judge to decide in his discretion, and upon all the circumstances, whether the purposes of justice will be best served by issuing such com mission, or by admitting th'e proof of what-he formerly testified.” This would be- enough for this case; for the Judge exercised his discretion.But I should think it safest to say there is no discretion in the matter, and that he ought to be examined de novo.

On recurring to the process, it is, however, plain, that the matter then in issue is not the same, in every respect, with that now before the Court. In the process the plaintiff’s demand is stated to be, “ for so much money advanced to the defendant on account of a sealed note on .George Clark in favor of defendant, which the defendant promised, in. consideration of the money being advanced,- to refund, provided the plaintiff was not allowed a- discount for said sealed note, on the trial of a case then' pending, wherein said George Clarke was plaintiff, and your petitioner was defendant; and your petitioner avers he was not allowed a discount for said note, on -the trial of said case.” There the single issue was, if the case stated were proved, so far as the agrément' set out, then had the discount been allowed ? Here, however, the plaintiff sues on the written contract, by which the defendant promised to pay to the plaintiff “ when I collect the note, or if not collected, to return the said note.” This presents - very different matters.. For if the plaintiff could show the note was in any way collected, or if it was not. collected by the nég-. lect of the defendant, or if not returned or offered to be returned to the plaintiff, the defendant might be -liable:' There is, therefore, no propriety in receiving the depositions' in evidence. In connexion with this ground I may remark, on the 8th ground, that neither the report of the case of Tucker vs. Clarke for the Court of Appeals, the grounds of appeal, nor a decree written by the Judge below, and struck out, were evidence. Neither of them can be classed as records, and of consequence are not evidence. . '

2; The record of George Clarke against this defendant was properly received as evidence, not as. conclusive of any thing ; but merely as a fact necessary to make out the defendant’s de-fence. For he was hound to show that he had offered the note in discount, in that case, as one means of collecting it, and that he had failed in that attempt. This was especially the case, when it appeared, as it did in the progress of the case, that he had received it for that very purpose.

3. The third and fourth grounds together, make the question whether the note under the circumstances could have been allowed, as a discount in the case of George Clarke vs. George B. Tucker. It is very clear it could not. For although Tucker had the sealed note payable to the plaintiff in his possession before the writ was sued out by Clarke, yet it was not assigned until afterwards. It was then not a subsisting demand belonging to the defendant at the time suit was brought, and could not be allowed as a discount.

4. Upon the fifth ground, it is only necessary to remark, that having received the note for the purpose of setting it off against Clarke’s demand, the defendant had the right to retain it until he made the effort. Declining to give it up before he had offered it in discount, and it had been rejected as such, is no cause of complaint to the plaintiff.

5. As to the sixth ground, it seems to me the plaintiff has mistaken on whom the onus of proof rested. After the defendant showed that he had offered to return the note, the plaintiff was bound to prove either that it was collected, or had not been collected by the neglect of defendant. For the defendant was not bound to prove a negative, that he had not collected the note.

6. On the seventh ground I have only to say, that the receipt is not at all affected by the parol proof, that the note was received for the purpose of being offered in discount. That was one means of collecting it.

7. The ninth ground assumes strange positions. The note was pleaded in discount; this appears by the record; it was withdrawn; this appears also by the record, the order made in the cause. Why was it withdrawn? This is a fact, which is ascertained by the proof, that the assignment was made after suit 'brought. , This fact, like many others, which do not appear by the record, might be shown by parol: The party was not bound to appeal. He took, however, the responsibility of showing ' that he could not legally have been allowed the discount, and, therefore, he withdrew it. This he has done.

The motion for a new trial is dismissed.

Evans, Wardlaw, Fiiost, and Withers, JJ. concurred.

Motion’dismissed.  