
    
      Thomas E. Ison, Assignee vs. Jacob Ison.
    
    In debt on sealed note by assignee, the plea of non estfactum does not put tlio assignment in issue : plaintiff, therefore, is not required to prove it at the trial.
    
      Before Glover, J., at Union, Spring Term, 1853.
    This was an action of debt on a single bill, made by Jacob Ison in favor of Solomon Coleman for f 117 12, dated the 15th July, 1839, on which $>50 was paid the 30th December, 1842. Solomon Coleman assigned it to the plaintiff the 12th May, 1848, which assignment was witnessed by one Hill.
    Thomas H. Murray proved Jacob Ison’s signature to the single bill; his acknowledgment that he had made it and the consideration.
    To prove the assignment, the plaintiff proposed to ask T. P. Sims, if Solomon Coleman did not acknowledge that he had signed his name to it. This was objected to on the ground that the declarations of the assignor were inadmissible. The objection was overruled and the witness replied, that Coleman acknowledged he had signed his name to the assignment; that the note was then present; and that he had heard of the death -of Hill, the witness to the assignment, from Coleman and others.
    The jury was instructed that the plaintiff was entitled to recover the balance due on the single bill and that the evidence sustained his action. The verdict was for the plaintiff.
    The defendant appealed and now moved this Cou:g for a non-suit or new trial on the grounds
    1. Because there was no legal evidence to prove the assignment of the single bill sued on.
    2. Because the declarations of the payee, made after he has parted with his interest in the note, are not evidence to affect the rights of third persons.
    
      Thomson, for the motion.
    
      Dawkins, contra.
   The opinion of the Court was delivered by

Withers, J.

It is proper to add to the facts which appear in the report from the Circuit, that the plea was the general issue. So we have this case : — Debt on single bill by assignee, under and by virtue of the Act of 1798: — Plea, general issue - Clear proof of the execution by the maker or obligor, who is sued, and a question touching the competence of evidence of the assignment to the plaintiff; to wit, testimony, by a witness, that he heard the payee, or obligee, admit that he had assigned it, as appeared on the paper produced.

When it is remembered, that the office of pleading is to present a precise issue, so that the point or points of contestation shall stand out in bold relief, from the mass of facts that may have been involved and thrown behind, as it were, in the progress of the parties through the regular stages of the legal contest — and also that the evidence is to be confined to the issue, we see the great importance of fixing attention upon the legal nature of the issue, in any cause, since it regulates the range of evidence necessary and allowable.

What has the defendant put in issue by his plea of non est factum ? Nothing but the execution of the sealed instrument as a valid obligation at the time. That is elementary. It is pertinent to that issue to show that, for any cause, it was void at law, or has become so, as produced at the trial, and before action, by erasure or other species of forgery. For in any such cases, the paper never had any legal existence — that is to say, was never made.

But the plea does not contest the assignment to the plaintiff-nor, (according to various American decisions, and, it would seem, according to sound reasoning,) any other of the plaintiff’s material averments, beyond the factum. It may be more satisfactory to refer to a case of our own, quite in point, to wit, Solomon vs. Evans, 3 McC. 274. It was debt on bail bond; plea non est factum; assignment not under seal, and tested by one witness only, that is, illegal according to stat. of Anne on that point. It was distinctly adjudged, that the issue relieved the plaintiff from all obstacles arising from the assignment — and he had judgment.

The position we assume is wholly beyond the class of cases, where the specialty is but inducement, and the gist of the action is some fact dehors, where nil debet may be permitted to be pleaded, as debt for rent due on indenture of lease : debt for an escape : on judgment against executor for devastavit, &c.

Hence we are relieved from discussing any rules touching hearsay evidence, or, more properly, ad/missions of any one: as well as any touching a necessity on a plaintiff to establish in evidence, his legal interest in the cause of action. The plea in the present case did not drive this plaintiff into such questions.

The motion is, therefore, dismissed.

O’Neall, Wardlaw, Frost, Whitner and Glover, JJ., concurred.

Motion dismissed.  