and the executor or administrator live in different towns, a notice properly directed to the latter and put into the post-office, is sufficient. Shed v. Brett, (1 Pick. 401.) The notice in this case was directed to the "Estate of Henry J. Oliver, deceased," and was put into the post-office at Boston. It is insisted for the plaintiffs that this was sufficient, and their counsel have cited a decision of the Supreme Court of Tennessee, Pillow v. Hardeman, (3 Humph. 538,) that notice directed "to the legal representative" of a deceased indorser, is a good notice. The ground of this decision was that the words "legal representative," in their ordinary sense, are synonymous with executor or administrator. A fortiori, notice directed "to the executor or administrator," without naming him, would have been held sufficient. But either of such notices would be directed to an existing person, though not by name, yet by clear description, and that person would know that it was addressed to him, as well as he would know it if his name were used. In the present case, the note was not directed to any person, either by name or description, but "to the estate" of the defendant's testator. This direction was quite as applicable to the testator's heirs at law as to his executrix, and there is no reason why she, rather than they, should take it from the post-office, or be presumed to have received it. Whether this notice would be held sufficient if it had appeared that the defendant received it, we need not inquire; for the statement of the postmaster at Roxbury does not warrant us to infer with any confidence that she did receive it, and thereupon to charge her with actual notice. But as the law does not require that the holder of an indorsed note should have knowledge beyond his means of obtaining it, he is excused from giving notice to the executor or administrator of the indorser, when he neither knows, nor can by reasonable diligence know whether there is one, or who he is, or where he resides. The use of due diligence to ascertain, is all that is required. Was such diligence used in this case? We are all of opinion that it was not. The indorser died more than seven weeks before the note was payable. The President of the bank had information a week at least before the note was payable, that the defendant was the executor named in the indorser's will. The plaintiffs took the newspaper in which the defendant had given notice, three days before the note fell due, that she had been appointed executrix of the will,

and had taken upon herself that trust. And though it is agreed by the parties that the President of the bank had no knowledge before the day when the note was payable, of the defendant's appointment as executrix, by the Judge of Probate, and though we were to assume (without proof) that no other of the officers of the bank, before that day, saw the defendant's notice in the newspapers, nor actually knew who the executor was, yet the facts which the parties have agreed on show that certain knowledge might have been obtained in a very few minutes, if any proper inquiry had been made by any of those officers, or by the notary into whose hands the note was put for protest and notice. Judgment for the defendant.

William Sohier, for the plaintiffs; W. R. P. Washburn, for the defendant.

Decisions under the New Practice Act.

Supreme Judicial Court, Middlesex, January, 1853. Nisi sittings at Boston.

JOHN C. PALMER v. EZEKIEL WHITE.

The assignee of a chose in action upon which suit is brought, is a competent witness for the plaintiff under the Massachusetts statute of 1851, ch. 233, § 97, and 1852, ch. 312, § 60.

THIS was an action of assumpsit, to recover a bill for advertising by the defendant in the plaintiff's newspaper. On the back of the writ is the following indorsement"This claim is assigned to Walter M. Mason, indorser."

Said Mason, who was admitted to be the assignee of the claim and indorser of the writ, was called and offered as a witness by the plaintiff. The defendant objected to his competency, but the Court of Common Pleas, before whom the action was tried, overruled the objection, and admitted said Mason to testify. To this ruling the defendant excepted.

Dean & Dinsmore, for plaintiffs.

Brown & Alger, for defendants.

The opinion of the court was drawn up by

BIGELOW, J.-We have no doubt that under Stat. 1851, ch. 233, § 97, (re-enacted in Stat. 1852, ch. 312, § 60,) the assignee of the chose in action in the present suit was a competent witness.

The language of the section is as follows:-"No person offered as a witness shall be excluded from giving evidence,

either in person or by deposition, in any proceeding, civil or criminal, in any court or before any person having authority to receive evidence, by reason of incapacity, from crime or interest; but every person so offered shall be admitted to give evidence, notwithstanding, he may have an interest in the matter in question, or may have been previously convicted of any offence; but this act shall not render competent any party to a suit or proceeding who is not now by law rendered competent, nor the husband or wife of any such party. But nothing herein contained shall be deemed applicable to the attesting witnesses to any will or codicil; and the conviction of any crime may be shown to affect the credibility of any person testifying.'

It was clearly the intention of the Legislature to abolish entirely, by the above section, the disqualification of witnesses not parties to the record, arising from interest in the subject-matter in question. Under this statute the extent of interest, whether slight and contingent, or absolute and covering the whole amount in controversy, is wholly immaterial as affecting the competency of a witness, and goes solely to his credibility. The only limitation upon the admissibility of witnesses contemplated by the act, is the exclusion of parties to the record; that is, persons who are either plaintiffs or defendants. This furnishes a clear, distinct and practical rule, founded upon considerations of justice and sound policy, while an attempt to distinguish between different degrees of interest would only lead to collateral issues, and confusion in the trial of

causes.

Such we think was the view of the learned commissioners who drafted the Practice Act. It is stated by them in their report to the Legislature, that the above provision in relation to the competency of witnesses is borrowed from the Act of 6 & 7 Vict., ch. 85, § 1, commonly called Lord Denman's act. (Hall's Mass. Pract. 194.) On recurring to that act, it will be found that there is an express exception in it, by which no person is rendered competent "in whose immediate and individual behalf any action may be brought or defended, either in whole or in part." This exception would render incompetent as a witness, an assignee of a chose in action prosecuting a suit for his own benefit, as in the present suit. Hall v. Kitching, (3 Man. Gr. & Scott, 299.) But its omission in our statute is significant, as showing that it was intended to be more comprehensive

than the English statute, and was not designed to embrace cases of this kind. The decisions of the English courts upon the construction of Lord Denman's act, show that no amount of interest, however great, in the event of a suit, will exclude a witness, unless he is within the express exceptions enumerated in the statute. Thus it has been held, that a husband is a competent witness for the plaintiff in a suit brought by the administrator of his wife upon a note given to her dum sola, although the proceeds of the note when collected would be payable to him by her administrator: the suit not being brought "in his immediate and individual behalf." Hart v. Stephens, (6 Adol. & Ellis, N. S. 937.) See also Sinclair v. Sinclair, (13 Mees. & Wels. 640); Sage v. Robinson, (3 Wels. H. & Gr. 142.) Exception overruled.

Court of Common Pleas, Suffolk, ss., Oct. Term, 1852. BRIGHAM ET AL. Assignees of George Lambert, v. PETERS.

THIS was an action of trover for a promissory note, alleged by the plaintiffs to have been made payable to said Lambert, and to have passed out of his control by a forged indorsement. The defendant undertook to show that the indorsement under which he claimed the note was either genuine or was authorized by said Lambert.

In order to prove this, the defendant filed interrogatories under the Practice Act of 1852, to be answered by the plaintiffs, and called for the books and papers of said Lambert, in the hands of the plaintiffs, his assignees. These papers were drawn out by the defendant's interrogatories, and were lodged in the clerk's office for the use of the defendant.

Before the trial the defendant gave notice to the plaintiffs to produce at the trial all books and papers of the insolvent that had come to their hands.

At the trial, and in order to establish their title to the note sued for, the plaintiffs put the insolvent, said Lambert, « upon the stand as a witness. Before cross-examining him, and to enable defendant to cross-examine, he called for the books and papers referred to in his notice to produce. The plaintiffs claimed that they ought not to be affected by that notice, because the defendant had already obtained the

books and papers, accompanied by their answers to the interrogatories, and might use the papers in connection with said answers. If the defendant wished to put in part of what he had drawn out by his interrogatories, he could do so only by introducing the whole; and the defendant should at this stage decide either to use the whole answers or no part of them. The defendant thereupon openly relinquished all claim under his interrogatories to the books and papers called for under his notice to produce. The plaintiffs then claimed that the papers were in the custody of the court, being in the clerk's office. The court (Perkins, J.) discharged the papers from its control so far as it had any, and left them in the plaintiff's hands, and also decided that the defendant was not bound at this stage of the case to say whether he would put in the plaintiff's answers to his interrogatories or not; that the defendant having disclaimed any intent to use the papers as a part of such answers having returned them to plaintiffs, and they being at the time in the plaintiffs' hands-the plaintiffs were bound to produce them on the seasonable notice given, or the defendant might prove their contents by secondary evidence; and thereupon the plaintiffs produced the papers. The court also held that the use of the papers under this production on notice, would not bind the defendant to put in the answers of the plaintiffs on which the papers were originally produced and deposited in the clerk's office.

FIFTY ASSOCIATES v. TUDOR.

THIS was an action of tort. The writ alleged, that the defendant entered upon the plaintiffs' land, and tore down the plaintiffs' wall. The answer of the defendant admitted the fact, and claimed as a justification that the wall prevented the admission of light and air to a certain building belonging to the defendant, in violation of the defendant's right to the admission of the same; and that the defendant threw down the said wall for the maintenance of said right.

The plaintiffs filed interrogatories to the defendant under the Practice Act, and by one of the interrogatories called for an answer to the following, viz:

"Did you ever have any agreement, written or otherwise, or any deed or writing from the plaintiffs, granting you the right to overlook by windows in your said building the lot