
    Joseph Fisler, administrator with the will annexed of James Abbott, deceased, vs. Samuel Porch, jun.
    Although the general rule is, that the answer of a defendant, so far as it is responsive to the bill, is evidence for the party, it is no evidence when it assert a right affirmatively in opposition to the complainant’s demand.
    So where the defendant was called upon to disclose what consideration he paid for the assignment of a mortgage, and answered that he paid no consideration at the time, but merely promised that he would make certain payments and perform certain duties at a future time, his allegation, that he has performed his promise cannot avail him ; he is bound to establish the fact by proof.
    The fact as to whether the assignment was intended as an absolute one, or as a mere authority to enable the defendant to collect, being doubtful from the «evidence, the court directed an issue.
    The bill alleges, that James Abbott, deceased, was at tbe time of bis death the owner of a bond and mortgage of John Gk Baker, to secure the payment of $3000, which said Baker had given him as the consideration of a farm sold and conveyed by Abbott to Baker. The bond is dated 29tb September, 1849, and payable, $500 in one year from date, $500 in two years from tbe date thereof, $1000 in three years from date thereof, and $1000 in four years from the date thereof, without any interest for one year from the date; that the said Abbott, being then about eiglity-six years old, and very infirm, and unable to transact business for himself, and having no means of support, except what was to be derived from the said boud and mortgage, proposed to Ms grandson, the defendant, to employ Mm as lxis agent to collect the money of the said obligee as it become due upon tbe bond, and to pay it to Mm, to which the defendant assented, and suggested to the said James Abbott, that in order to enable Mm effectually to collect the money, it was necessary that the said James Abbott should assign the said bond and mortgage to him, and the said James, believing the said suggestion, to be made in good faith, and confiding in the integrity of the defendant, in order to confer upon him the necessary authority, on or about the 12th day of June, 1850, procured to be endorsed on the said Dond as follows:
    “June 12th, 1850, I sine all my rite and title of the within bond to Samuel Porch, jr.”
    nis
    Witness present, James ¡x¡ Abbott.
    mark.
    Prudence DeHart.
    and delivered the bond to the defendant; that at the same time, the defendant procured an endorsement to be put on the mortgage, and delivered the mortgage to defendant.
    The bill further alleges, that by virtue of the said assignment, the said defendant now sets up and claims to be the sole lawful owner in his own right of the said bond and mortgage, and charges that the said assignments were only made to enable the defendants to collect the money; that they were voluntary, and without any valuable consideration really and bona fide paid by the said defendant; that James Abbott departed this life in 1851, having first duly made his will, bearing date the 13th day of September, 1849, in which, after ordering his debts paid and a few legacies, he orders a division of his property among his wife, his two sons, and his four daughters ; that John Harding, who was appointed executor, having renounced, letters of administration with the will annexed were, on the 6th of November, 1852, granted to the complainant.
    The bill further charges, that the complainant has demanded the bond and mortgage of the defendant, and requested him to come to a settlement in relation to the said trust, but that he refuses, and claims the money as his own. It prays that the defendant may be enjoined from collecting the money; that the defendant may be decreed to account, and to assign and deliver to the complainant a judgment which, he has obtained upon the bond against the obligor, after a payment to him of any sum which may be found due and owing to the said defendant ; that the rights of the complainant, as administrator, may be established in the premises, protected and enforced, and that the complainant may have such other and further relief, &c.
    The defendant filed his answer to the bill. He admits that the bond and mortgage was assigned to him by James Abbott; that at the time he was an aged man; that he was at that time somewhat infirm in body, but denies that said Abbott could properly be said to be very infirm ; he denies that said Abbott was unable to transact business, but, on the contrary, alleges that said Abbott not only at the time he assigned the bond and mortgage, but from thence up to within some five or six months of his decease, nearly two years, was of ordinary bodily strength for a man of his years, and possessed his mental faculties to an unusual extent, and was able to transact business. The defendant denies that the assignment of said bond and mortgage was without consideration, or for the mere purpose of enabling the defendant to collect the same, or upon the suggestion of the defendants, or in any other way or purpose than as an absolute and full assignment to the defendant, for his own use and benefit, and for no other use or purpose whatsoever. He avers and states the truth to be, that the said bond and mortgage were assigned to this defendant under the following circumstances: that for about one year next before the execution of the said bond and mortgage, the said James Abbott had been boarding with and in the family of said John G. Baker, whose wife was a grand daughter of said Abbott; that while the said Abbott was boarding with said Baker, he conveyed the farm to said Baker, and took the said bond and mortgage for the whole amount of the purchase ir.o ney; that some time after the said conveyance, the said Bak-H’ refused to board the said James any longer, so that he was obliged to seek and obtain a home with his daughter, Prudence DeHart, who was a widow lady and in poor circumstances, unable to afford proper and adequate sustenance to him; that while he was living with his said daughter, the defendant took his mother (who is also a daughter of said James) to visit her father; that the circumstances under which the said James was obliged to leave the said Raker becoming the subject of conversation, the said James proposed to the defendant, in the presence of his two daughters, that if the defendant would provide for the said James for the residue of his life, and would pay such debts and liabilities as were then outstanding against him, and would pay off and discharge the expenses of his burial after death, that he, the said James, would assign to the defendants the said bond and mortgage, which proposition the defendant in good faith and with good and proper intentions accepted, and thereupon and on the same the assigmnent was made. The defendant alleges in his answer, that from the time of the assignment to the time of the death of said Abbott, he, the defendant,, provided for him suitable and sufficient board, clothing, and other necessaries and comforts of life, and paid off and discharged sundry debts and liabilities of the said James Abbott, and is now ready and willing, and at all times has been ready and willing, to pay off and discharge any other debts and liabilities of the said James Abbott (if any there be); and also paid off and discharged all the expenses of his funeral, and has, in all other respects, kept and performed the said agreement on the paid; of him, the defendant.
    The answer admits that James Abbott made the will dated prior to the assignment, but alleges that, after making the said assignment, having no property, he desired and intended to destroy the will, and for that purpose, on the 7th of April, 1851, said Abbott executed an order upon John Harding, who had the custody of the will, as follows:
    
      To Mr. John Harden. Please to let the bearer have that will of mine in your possession, as I have made some other alteration, and I do not wish that will to have any effect. Yours with respect,
    his
    "Witness present, James fxj Abbott.
    mark.
    Samuel Porch.
    April 7, 1851.
    . That the said order was delivered to one Jacob DeHart, his son in law to present Harding ; that he did present it, and that Harding refused to let him have the will.
    A replication was filed, and considerable evidence taken on both sides.
   The Chancellor.

The gravamen of the bill is, that the assignment by James Abbott to the defendant of the bond and mortgage of John Gf. Baker was without consideration, and intended as a power of attorney only, in order to authorize the defendant to collect the money due on the bond.

Considerable evidence was taken to show the imbecility of the old man ; and, upon the argument, the defendant’s counsel endeavored to establish, from this evidence, that James Abbott, at the time he made the assignment, was so infirm in body and mind as to render him incompetent in law to dispose of his property. But this case cannot be determined upon the question of James Abbott’s legal competency to transact business. The evidence, so far as it has been introduced for such purpose, is irrelevant. BY such issue has been made by the pleadings, and of course none such is before the court for its determination. The bill does indeed allege that, James Abbott was an old man, being at the time of the assignment about eighty fix years of age, very infirm, an unable to transact business. But it does not allege this as a reason for disaffirming the contract ; on the contrary, it is stated as the reasonable inducement which prompted him to constitute the defendant his agent, with authority to enforce the payment of the obligation.

The only question, therefore, for the decision of the court is, whether the assignment conveyed to the defendant, as the absolute owner, the interest of the obligee in the bond, or was intended by the parties as a mere authority and power to collect the money due upon it ? The defendant is called upon to disclose the character of the transaction and the consideration which passed from him to James Abbott for the assignment.

The defendant, by his answer, denies that the assignment was without consideration, or made to him as the mere agent of James Abbott to collect the money due upon the bond, or in any other way or for any other purpose than as an absolute and full assignment for the defendant’s own use and benefit. He admits that no consideration was given by him at the time, but avers the time consideration to have been a mere parol agreement on his part to provide for James Abbott during his lifetime, to pay such debts and liabilities as were then outstanding against him, and to discharge the expenses of his burial. He avers that he has paid the consideration ; that from the time of the assignment up to the time of the death of Abbott, he provided for ■ him suitable and sufficient board, clothing, and other necessaries and com- ’ forts of life, and paid off and discharged sundry debts and liabilities, and also paid the expenses of his burial, and that he has fully discharged the consideration, as he agreed and assumed.

The first question is, how far is this answer evidence for the defendant ? The general rule is, that the answer of a defendant, so far as it is responsive to the bill, is evidence for the party. This is the rule as broadly stated, but it has its limits and its exceptions. It is no evidence where it asserts a right affirmatively in opposition to the complainant’s demands. In this case, the defendant is called upon to disclose what consideration he paid for the assignment. If his answer had been, that he paid the amount of the principal and interest due on the bond at the time of the assignment, his answer would be evidence of the fact, and the court would not put him to the proof. But he answers, he paid no consideration at the time, but merely promised that he would make certain payments and perform certain duties at a future time. His allegation, that he has performed his promise, cannot avail him. He is bound to establish the fact by proof. In Thomson v. Lambe, 7 Ves. 587, Lord Eldon says, “ he was clearly of opinion, a person charged by his answer cannot, by his answer, discharge himself, not even by his examination, (before the master) unless it is in this way: if the answer or examination states that, irpon a particular day, he received a sum of money, and paid it over, that may discharge him; but if he says, that upon a particular day he received a sum of money, and upon a subsequent day he paid it over, that cannot be used in his discharge, for it is a different transaction.” In Hutchinson v. Tindall, 2 Green's C. R. 357, and in Hart v. Ten Eyck, 2 J. C. R. 62, and in a note to the last case, 91, the numerous authorities upon this subject will be found collected and commented upon. I think the current of these authorities will be found to accord with the views I have expressed in regard to the answer in the present case.

Let us examine, then, the case upon the evidence. The defendant has, in the first place, endeavored to prove the agreement between Abbott and himself, as to the assignment. Two witnesses were present, as he alleges, at the time it was made, Prudence DeHart, a daughter of Abbott, and who is the subscribing witness to the assignment, and the defendant’s mother, also a daughter of Abbott.

Prudence DeHart testifies she subscribed the assignment as a witness. She does not recollect hearing her father say, at the time of the assignment, what the defendant was to do, or give for the bond. Her father told her that Samuel would pay his board, and that whatever he broke or destroyed while there Samuel would pay for it. This witness certainly fails to prove the agreement alleged in the answer. His telling her that Samuel would pay his board, &c., is quite as consistent, and indeed more so, with the allegation of the bill, that the bond was assigned merely to enable the defendant to collect the money to make the payment, as with the allegation of the answer, that such payment was a part consideration for the absolute assignment of the bond. It certainly is very strange that James Abbot’s daughter should have been the subscribing witness to the instrument by which her father conveyed away all the property he had in the world, and that a bond and mortgage of $3000, and yet, that this daughter should not know, if it was meant as an absolute transfer of his property, what consideration he received for it. She says she did not hear all the conversation; but this does not account for the strange fact, that this bond should be assigned under the circumstances, and that she should have witnessed the assignment, and not have understood from the parties what the consideration was, and particularly, as there is no pretence that the transaction was a secret one, nor any disposition in either of the parties to conceal its true character from the witness. It is quite as strange that James Abbott should have continued to live with this daughter for more than a year after this, and that she should never have heard from her father upon what terms he had disposed of his property. The witness, however, says, that she did hear her father say often that he had no property, for he had assigned it all to Samuel Porch. I do not mean to intimate that this witness has concealed anything in her testimony. She was called as a witness for the defendant against her own interest. If this assignment should be declared not to be an absolute assignment, she takes under the will of her father an equal share with other legatees named in the will of the money due upon the bond in dispute.

Edith DeHart, the mother of the defendant, is the other witness alleged to have been present at the time of the assignment. She testifies that she went with her son to see her father, then living with his daughter, Prudence DeHart; that she then had in her possession the bond in question, and took it with her — the bond had been in her possession for three months previous; that her father sold the bond to Samuel Porch, the defendant, who was to pay his expenses while he lived, his funeral expenses when he died, and a bill of Doctor Fisler’s; she did not recollect hearing anything said about any other debts. The witness further testifies to hearing the old man say often to the defendant, in speaking of the assignment, “Son, I don’t want it, but don’t let Baker cheat you out of it.” It is proper to remark, in reference to this witness, in addition to the fact of her being the mother of the defendant, she is cut off with a legacy of ten dollars by the will which disposes of this bond, if the assignment is set aside.

In addition to this evidence, the defendant endeavors to show that the assignment was absolute by corroborating circumstances, and also to prove that he discharged the duties which constituted the consideration of the assignment.

I think the evidence is sufficient to show that the defendant did pay the then existing debts of James Abbott, supported him comfortably while he lived, and gave him a decent burial. But the fact that he did this is, standing by itself, as consistent with the fact of a qualified, as of an absolute assignment. If the assignment, by the intention of the parties, was a mere power of attorney, the defendant by it having the control of all the property, and being James Abbott’s grandson, it was a reasonable expectation that the defendant, having funds, or abundant security in his hands, would not permit his grandfather to suffer from want, but would discharge the debts of a few dollars, and provide a comfortable living for the old man.

There are some circumstances corroborative of the defendant’s case, and which, in connection with the evidence already alluded to, are sufficient to entitle him to the benefit of the defence set up in his answer, unless it is impeached by the complainant.

In September, 1849, James Abbott, while the bond and mortgage were in his possession, made his will disposing of all his property, which consisted of this bond and mortgage only. The will was in the possession of John Harding, who was the executor named in it. In April, 1851, nearly ten months after the assignment, James Abbott drew an order upon Harding, requesting him to de liver the will to the bearer of the order, and stating in the order that he had made some other alteration, and did not. wish that will to have any effect. It does not appear that the defendant had anything to do with, procuring that order, or indeed, that he had any knowledge of it. This order was taken to Harding, but he refused to give up the will. He said that he understood there was some difficulty in the family, and that he would rather not give up the will. Jacob DeHart says he drew the order at the re quest of Abbott, who at the time said he wished the will taken up; that he had signed away his property. When the witness told him that Harding refused to comply with the order, he said he ought to have given it up; but that it did not make much odds, he could make another, but he had nothing to will.

Prudence DeHart says, when she came, home after Harding had refused to give up the-will, James Abbott said, it would make no difference; that he had no property, for he had assigned it all to Samuel Porch; and she heard him say that often.

Edith DeHart says, “ I have heard him say that he did not want any will; that he had got rid of his property, and had nothing to leave.”

There was no effort made in cross-examining the witnesses, or by the introduction of any other evidence, to cast discredit upon this order, or to weaken the natural force and effect it is calculated to produce. It would have Deen more satisfactory if the witnesses had been questioned in reference to this order. The course of the cross-examination leads me to suppose that the defendant’s counsel were not disposed to question the accuracy of the witnesses in reference to this transaction, or the color they gave to this feature of the case.

The complainant, to sustain the case made by the bill, relies—

First. Upon the improbability that James Abbott should have made the assignment, as an absolute one, upon the consideration alleged by the defendant. That a,n old man, eighty-six years of age, having all his property in a bond and mortgage of three thousand dollars ; having no home, but boarding around among his children; having several sons and several daughters, from whom his affections were in no manner alienated, should have given away all Ms property to a grandson upon a naked promise that he would maintain him while living, and provide for him a decent burial; that he should not have taken any evidence of the agreement, and should have made it without consultation with any of his children, or any friend, can scarcely be accounted for, except as an improvident bargain of an imbecile, childish old man. If James Abbott himself had filed this bill, the court, upon the evidence, would not have listened a moment to the defendant’s allegation that the assignment was an absolute one. The case is altered by the fact, that the agreement is executed; that the parties lived under the agreement for more than a year; that as far as the evidence goes, James Abbott remained satisfied with it, and never endeavored to recall or gainsay it; and that he was furnished a decent burial under its provisions. The fact, that the complainant is asserting rights, as the representative of James Abbott, under an instrument which in his lifetime he repudiated when it came in conflict with the assignment, is entitled to much consideration.

Again. The complainant endeavors to rebut the evidence upon which the defendant relies, by showing the declarations of the defendant to different individuals, and on various occasions, to have been inconsistent with the claim he now makes to the bond and mortgage.

Richard H. Tice testifies he had a conversation with the defendant, when the witness told him that it was a shame the matter in reference to the judgment, which had been obtained upon this bond against Baker, could not be settled between them ; the defendant said, he had no right to offset Baker’s bill; that he was authorized to collect the money, but to pay nothing out of it. He said, if the old man was willing, he had no objections. The witness observed to defendant, that if he had a power of attorney that would authorize him to settle. Defendant replied that he had nothing more to do with it, except to collect the money; and that when the money was collected, he was bound to pay it over to the old man. The witness sayé this conversation took place in William Tweed’s store, and that Mr. Tweed took part in it. He mentions the names of four individuals as present besides defendant and himself. Three of them, including Mr. Tweed, were called by defendant. They deny ever having heard any such conversation as that detailed by the witness. Thomas Willetts, one of the persons named as having been pres-it, says he has no recollection of any such conversation ; he says, if he had been present and heard any such conversation, he thinks he should have recollected something about it. The force of Tice’s testimony is certainly very much weakened by the fact that the witnesses whom he appeals to for corroboration do not sustain him.

Jacob Davis says, that in a conversation with him, he told defendant he, witness, understood he owned the bond; he replied he did not.. He said he had a power of attorney from his grandfather to collect it, and that he could not let him up. He said distinctly, he did not own the bond, but he said nothing further in explanation than that he had a power of attorney from his grandfather to collect it. Ho one but defendant and witness were present at this conversation ; it took place some three years before the evidence was given. "Witness never repeated the conversation to any one before giving his evidence. When I remark, that at the very time this conversation is alleged to have occurred, there was a contest going on in reference to the bond, and that the defendant was then actually claiming it as his own, it is a reasonable conclusion that the witness misapprehended the defendant ; and as the witness gives only the impression made upon him, which was three years previous, we may withold any reliance upon his testimony without at all impeaching his integrity.

The only other witness upon whom the defendant relies is John G. Baker. John G. Baker testifies to a conversation between himself and defendant, when the defendant made declarations in reference to the bond inconsistent with his being the absolute owner of it. But Mr. Baker does not occupy a position to entitle him to the credit of a disinterested witness ; and I think a remark like this may be made of witnesss without casting any shade upon his character. Where he is interested in the event of a suit, though an interest which does not exclude him as a witness, yet where he entertains inimical feelings of long standing towards the party against whom he is called, where there is a feeling existing between them relating to the very matter in controversy, and where the witness is taking an active part in the suit, such a witness, no matter how exalted his character, is not entitled to the credit of a disinterested witness. He sees things and judges oi things through a distorted medium, and it is natural that false impressions should be made upon his mind, which do not bear any more resemblance to the truth, but are rather deepened with their original coloring after years have passed away and the cause of controversy still existing. Mr. Baker’s position is a peculiar one. There is an angry contest existing between him and the defendant in reference to the bond, the subject of this suit. The defendant has a judgment against him and a levy upon his property: the witness claims that he has an account against James Abbott, which ought to be allowed him, and deducted from this judgment; the defendant refuses to allow it. The witness procured Joseph Eisler, the complainant, to take out letters of administration for the very purpose of insituting this suit and settling the account which the witness has against the estate : the witness’ son married the complainant’s daughter.

I have thus adverted to all the material evidence bearing upon the issue in this case, and I am in doubt where the truth of the case lies ; I am in doubt as to whether the assignment was intended as an absolute one, or as a mere authority to enable the defendant to collect the money. Here is a doubtful matter of fact, one peculiarly fitted for a jury to try. It is the right of the court to direct an issue in such a case, and I feel it is my duty to do so in this.

Cited in Miller v. Gregory. 1 C. E. Gr. 275; Carlisle v. Cooper, 6 C. E G. R. 590.  