
    Daniel Bacon vs. Almond Williams & another.
    The assignee of an insolvent debtor may be admitted after the death of the debtor to prosecute an action brought by the debtor, and still pending in court; although he does not move for leave to come in at the term next after his appointment or next after the debt- or’s death.
    A-fter the insolvency and death of the plaintiff in a civil action, and the admission of his assignee in insolvency to prosecute it, the defendant is not a competent witness under SL 1857, c. 305, even to matters which have occurred since the death of the original plaintiff and the appointment of the assignee, and to which the latter has already testified in his own favor.
    Action op contract upon a promissory note. Answer, payment. The action was entered and the answer filed at March term 1857 of the court of common pleas. Afterwards, before June term, the plaintiff went into insolvency and an assignee was duly appointed. Before December term 1857 the plaintiff died.
    At March term 1858, Morris, J., against the defendants’ objection, allowed the assignee, upon his motion, to come in and prosecute the suit; and overruled a motion to dismiss the action for want of any party to prosecute it; and at the trial permitted him to testify to conversations and declarations of the defendants, after the assignee’s appointment and after the plaintiff’s death, tending to show that the note had not been paid in the plaintiff’s lifetime. The defendants offered themselves as witnesses to rebut the testimony of the assignee and others, but were not allowed to testify. A verdict was taken for the plaintiff, and the defendants alleged exceptions.
    
      W. A. Williams, for the defendants.
    1. The writ abated by the plaintiff’s death. Gould Pl. c. 5, § 90. 1 Chit. Pl. (6th Amer. ed.) 482. Rev. Sts. c. 93, § 1. Day v. Lamb, 6 Gray, 523.
    2. After the assignee had been admitted to prosecute the suit, and had testified to matters which had occurred since the death of the' insolvent, the defendant ought to have been allowed to testify upon the same matters. Fischer v. Morse, 9 Gray, 440.
    P. E. Aldrich, for the assignee.
   By the Court.

1. The right of action on this note passed by the assignment to the assignee in insolvency, and was not affected by the subsequent death of the debtor; and the assignee, upon motion made while the action was still pending in court, was rightly admitted to prosecute it for the benefit of the estate. St. 1838, c. 163, § 5.

2. The assignee was also a competent witness; but by the terms of the statute the defendants could not be witnesses. St. 1857, c. 305, § 1. Howe v. Merrick, ante, 129.

Exceptions overruled.

The defendants also moved for a new trial, upon the ground of a discovery of a receipt since the verdict, and, although the plaintiff objected that the evidence was merely cumulative, a new trial was granted, upon which the plaintiff obtained a verdict and judgment. 13 Gray, 525.  