Nell rs. Snowden and others.

upon the Superior Courts. It is true, the Superior Courts and the special jury, under our system of practice, perform the same duties as the Chancellor and Master in Chancery in England, but I know of no Act of the Legislature which denominates either the Judges or the special jurors as Chancellors.

[2] This bill was filed by the complainant for a settlement of accounts between himself and Snowden, one of the defendants, Hughs, and Sibbet, and Jones, are made defendants, because they are the holders of negotiable paper given by the complainant to Snowden, and negotiated by him to the other defendants and who have instituted suit thereon against the complainant. In the decree rendered in the Court below, provision is made for the payment of Hughs's demand, but the suits of Sibbet and Jones are perpetually enjoined. Sibbet and Jones, in their answers, deny most positively all knowledge of the consideration of the notes and draft, as well as any notice thereof, or of any just or equitable defence to the same by Snowden; that they were bona fide purchasers of the paper in the fair course of trade, and for a valuable consideration, and there is no evidence furnished by the record had on the trial, which in our judgment is sufficient to show, that Sibbet and Jones were not bona fide holders of the notes and draft, and entitled to be protected in a Court of Equity. The general rule is, that the holder of negotiable paper is presumed to be, prima facie, a bona fide holder, for a valuable consideration, and that he is not bound to establish that he has given any value for it, until the other party has established the want, or failure, or illegality of the consideration, or that the note had been lost or stolen, before it came to the possession of the holder. Story on Promisory notes, 220, section 196. Swift vs. Tyson, 16 Peters, Rep. 1. The only evidence which the complainant relied on, is the testimony of Robinson, who states, that in October, 1843, Nell told Sibbet and Jones, that he would not pay any note made by him for the boat Viola. Whether this information was communicated to them before they became the holders of the paper, or afterwards, the record is silent. The presumption is, however, that they were the holders of the paper at the time, or why notify them, he would pay it. The discretion of the Court below was, in our judgment, properly exercised, in granting the new trial, and we take pleasure in affirming it.

Fain vs. Garthright.

No. 2.-ROBERT C. FAIN, plaintiff in error, vs. JAMES C. GARTHRIGHT, defendant in error.

[1.] A demise in Ejectment cannot be stricken out, because the name of the lessor is used against his consent, if the plaintiff offers to indemnify him against all liability to loss or damages, and if the use of his name he necessary to the assertion of the plaintiff's rights.

[2.] A brings ejectment for land and holds B's deed, as part of his chain of title. B is offered as a witness for the defendant, and is examined upon his voir dire, and says that he never made the deed under which the plaintiff claims-that he is the grantee from the State, and has never sold the land to any one but to the defendant-that he contracted to sell it to him, and took his notes for the purchase money, which he still holds, and gave him his bond for titles to be made when the purchase money was paid. Held, that B is an incompetent witness for the defendant. B was notified to appear aud defend. [3.] A certified copy of the record of commissions from the Executive Office, is the highest and best evidence of the fact that one who appears, from his acts, to have been a Justice of the Peace in a given county, during a particular time, was not a Justice of the Peace during that time.

[4.] A person who enters into possession of land, under a contract of purchase, with bond for titles when the purchase money is paid, is in possession under color of title, and his possession is adverse, although he has not paid the purchase money.

Ejectment, in Marion Superior Court. Tried before Judge ALEXANDER, May Term, 1848.

The facts necessary to understand the decision of the Court, are embraced within it.

HILL & SCOTT, for plaintiff in error.

WORRELL, for defendant, cited, 4 Term R. 366. 2 Stark. Ev. 238. 1 Phil. 226. 1 Cranch, 117. 8 Cow. 611. 4 John. 140.

By the Court.-NISBET, J. delivering the opinion.

[1] This was an action of ejectment. Two demises were laid in the declaration. One from Guilford Pullen, and the other from Robert C. Fain. Pullen, upon the trial of the cause upon the appeal, came into Court, and moved that his name, as lessor to the plaintiff, be stricken from the declaration, averring that it had

Fain vs. Garthright.

been inserted without his consent. The plaintiff objected, tendering to him such indemnity against liability in open Court, as the Court might direct; and informing the Court that a deed from him was a material link in his title: which deed was produced. The Court ordered his name to be stricken, and thus fell the demise to plaintiff, from him. This decision being excepted to, is assigned for error. Without the ofler of indemnity, this individual, we think, could not be retained as a party to this suit, against his will, with it-he could. No man has the right to use the name of a citizen without his consent, in such way as will subject him to loss or damage. This lessor, by being made a party, would be subjected to liability to costs. We know of no valid objection, as a general rule, to the use of a name, when that use is necessary or material to the successful prosecution of a party's rights, but the one suggested. If that is obviated by a sufficient indemnity, such as in the judgment of the Court will protect the individual from loss, such as was here tendered, then there can be no objection. I do not say that the name of a person may be used capriciously, in a case where it is not material for the assertion of the party's rights, or in cases where he is made a party merely to defeat the adversary; as where he is a material and competent witness for the adverse party, even if indemnity is offered. But that, where it is apparent to the Court, that the use of a person's name is important to the rights of a party; and such person is sufficiently indemnified, it is right and proper that he be made and retained a party. A contrary rule would preclude resort altogether, to a Court of Law, for the purpose of enforcing instruments not negotiable, and choses in action. A very numerous and very important class of persons-the assignees of choses in action, would be without a remedy in a Court of Law. I do not know that it has ever been questioned, that the person holding the legal title to choses in action, may be made a party by the assignee, for the purpose of collecting them.

There is a brief dictum of Spencer, J. in a case read from New York, to the effect, that the name of a lessor in ejectment, used without his consent may be stricken out. There he was held a competent witness, if not a party for the defendant; he was not indemnified, and it did not appear that his name was necessary for plaintiff's recovery. No motion was made-no judgment had.

Fain vs Garthright

If it were an analagous case to this, we would not hesitate to overrule it.

[2. After striking the name of the lessor Pullen, he was tendered as a witness for the defendant. Being objected to, he was sworn on his voir dire, and stated that he had never executed the deed to the land under which the plaintiff claimed; that he was the grantee from the State, and had never sold the land but once; that he had sold it to the defendant, and had taken his notes for the purchase money, which he still held unpaid, and that he had given to him his bond for good and sufficient warranty titles, when the purchase money was paid; that he had been notified by the defendant to appear and defend the suit, and was then in Court for that purpose; and that he would not be in any event liable over to the plaintiff, on the deed which he held. The Court admitted him, and that is assigned also for error.

Pullen was clearly an incompetent witness, upon the ground of interest. He was called to support the defendant's title claiming under him. He had been vouched. It was his interest to defeat the plaintiff's recovery, because, if the plaintiff succeeded, he would be liable over to the defendant, upon his contract with him for the sale of the land. He was under bond to him, to execute to him good and sufficient warrantee titles. He occupied the position of a grantor to the defendant. The judgment of recovery for the plaintiff, could be used as evidence against him in a future suit, by the defendant agatnst him, on his bond; or in defence of a suit by him on the notes for the purchase money. "Where the interest (says Mr. Greenleaf) of the witness arises from liability over, it is sufficient that he is bound to indemnify the party calling him, against the consequences of some fact essential to the judgment. It is not necessary that there should be an engagement to indemnify him generally against the judgment itself, though this is substantially involved in the other; for a covenant of indemnity against a particular fact, essential to the judgment, is in effect a covenant of indemnity against such a judgment. Thus the warrantor of title to the property which is in dispute, is generally incompetent as a witness for his vendee, in an action concerning the title. And it makes no difference in what manner the liability arises, nor whether the property is real or personal. If the title is in controversy, the person who is bound to make it good to one of the litigating parties, against the claim of the other, is identified in interest with that party, and therefore,

Fain vs. Garthright.

cannot testify in his favor." 1 Green. Evid. 466, 467.

Serle vs.

Serle, 2 Rols. Ab. 685. 21 Viner Ab. 362, lit. Trial G. f. pl. 1. Steers vs. Carwardine, 8, 6, and p. 670. 1 Stra. 445. 4 Mass. 441. 4 Watts. 30S. 13 Pick. 460. 14 Mass. 245. 3 Pick. 284. 5 Green. 450.

If a vendor sell without covenant of warranty, or restricted to claims set up under himself, he is a competent witness for his vendee. Last authorities. The obligation of the boud in this case, is to make the defendant good and sufficient warranty titles, which is equivalent in its extent to a general covenant of warranty. The title to the land is a fact in issue; in this suit its object is to try the title. It is against the loss of the title, that the bond is designed to protect the defendant. It is very clear that the witness is interested-if he by his testimony defeats the plaintiff's recovery, he loses nothing; if he does not, he is liable to the defendant. If the effect of a judgment is to render him liable to costs only, he is incompetent, (Lewis vs. Peake, 7. Taunt. 153,) where he has been called upon to defend. To disqualify, the liability must be immediate-it must spring directly out of the judgment. Here it is immediate. Clark vs. Lucas, M. & Ry. 32. Briggs vs. Crick, 5 Esp. 99. Martin vs. Kelly, 1 Stew. Alab. R. 198. Nor is it necessary that the warranty be express-an implied warranty will disqualify. Hurmance vs. Vernory, 6 Johns. R. 5. Hale vs. Smith, 6 Greenleaf, 416. Baxter vs. Graham, 5 Watts, 418. It has been ruled, that one who has put the defendant in ejectment into possession under a contract to sell and convey, is not a competent witness for the defendant, and that is precisely this case. Jackson, ex. dem. Roosevelt, vs. Stackhouse, 1 Cowen's R. 122.

See farther upon the general proposition that a vendor is not competent to support the title of his vendee, when under a general covenant of warranty. Swift vs. Dean, 6 Johns. R. 523. 3 Wend. 240.

In reply, it may be said that the witness had made a deed, under which the plaintiff claimed as part of his chain of title, and if the plaintiff fails in the action, he will be also liable to him, and therefore his interest is balanced and he is a competent witness. The answer is, that the witness was sworn on his voir dire, and stated that he had never made a deed to the plaintiff, and for the purpose of determining his competency, that statement, it being