
    Elisha Jacobs versus John Putnam, Executor &c. of Rufus Sibley.
    
      Oct. 3d.
    
    Where the defendant, being sued for a debt, sets up in defence, that by a new contract with him the plaintiff accepted a third person as his debtor in place of the defendant, an indorsement of the amount of the debt, made without the privity of the plaintiff, on a note held by the defendant against such third person, is not admissible as evidence to prove such new contract.
    Assumpsit to recover the value of a chaise sold by the plaintiff to Rufus Sibley, for 25 dozen of scythes. The defendant contended, that the plaintiff had made a new contract with Sibley, by which he had discharged him from a fulfilment of the first contract, and had agreed to take his pay for the chaise of one Chase. After the defendant had introduced some evidence tending to prove such new contract, he offered to show that Sibley indorsed upon a note of hand which he held against Chase, the value of the scythes; to which the plaintiff objected, unless it should be also proved that the indorsement was made with the knowledge and consent of the plaintiff. The objection however was overruled, and the evidence admitted, without proof that the indorsement was made with the knowledge or consent of the plaintiff, and a verdict was returned for the defendant. Whereupon the plaintiff filed his exceptions.
    Newton, in support of the exceptions,
    said the indorsement was the mere declaration of the adverse party ; not a part of the res gestee, but res inter alios acta; having no tendency to prove that the plaintiff made a new2 contract, but which might however mislead the jury ; and not coming within the excepted cases in which declarations are admissible m evidence. 1 Starkie on Evid. 49, et seq. and 69, [5th Amer. ed. 61 ;] Roseboom, v. Billington, 17 Johns. R. 187; Outram v. Morewood, 5 T. R. 123.
    
      J. Davis, contra,
    contended that the indorsement was a part of the transaction between the plaintiff and Sibley ; that it was not a declaration, but a fact; that it was made in pursuance of what had been agreed on between those parties, and it was immaterial whedier the plaintiff were conusant oi not of the particular time when that part of the agreement was carried into effect.
    
      Oct. 9th.
    
   But the Court said, that any act of Sibley and Chase, without the participation of the plaintiff, was res inter alios acta, and that the evidence of the indorsement might have had a material influence upon the jury.

JV*eu> trial granted.  