William Davis, for the use of James Evans, v. David Cammel

WASHINGTON COUNTY, June Term, 1794. William Davis, for the use of James Evans, v. David Cammel. An action of debt was brought to March term, 1793, on a single bill, for 13l. 3s. 11d. dated 4th October, 1792, payable, with lawful interest, on 27th November ensuing, and assigned 19th December, 1792. The defendant, at the trial, offered a deposition of the assignor, to prove, that it was by mistake, that the note was made payable in November, 1792, and that it was his and Cammel’s intention, to make it payable in 1793. Ross, for the plaintiff objected to this, as invalidating the assignment made by himself, and no man shall be suffered to invalidate his own acts. The act of assembly for the assigning of bonds precludes the assignor from releasing the debt; and depostions or acknowledgements subsequent to the assignment may, in effect, do the same thing, and defeat the provision of the act of assembly. 1 T.Rep. 300. 1 St.L. 107. See Cook v. Laugblin, post Bradford and Purviance, for the defendant. The original payee of the note could not have recovered, if such evidence had been offered against him: and the act of assembly puts the assignee precisely in his situation, so as to recover only as the assignor could. [MAJORITY — President.] President. There seems to be strong reason, to consider the assignment, as an engagement, by the assignor to the assignee, that so much money as appeared due, was due, on the note, at the day therein specified: and the evidence offered goes to contradict this; and, besides defeating the provision of the act of assembly, and enabling Davis and Cammel to cheat Evans, goes also to prove a thing contradictory to the note, and make it materially different from what it is. The mistake is in the defendant, and ought not to affect a third person not concerned in it. Shall we rectify this mistake of Cammel, at the expence of Evans? Cammel when sued, might have informed Evans of the mistake, tendered the costs accrued, and the debt, when, by his own acknowledgement, it was really due. He would then have come forward with some equity. But no evidence is offered, that Evans knew of the mistake previous to the suit, or at any time since. Such evidence might be proper. The acknowledgement and depositions are subsequent to the assignment, which took from Davis, and gave to Evans, all interest in the note; it is therefore the acknowledgement of one having no interest; and cannot affect him who has the interest.— Were there no assignment, and the mistake mutual, unless the party bringing the suit were conscious of the mistake, why should all, or perhaps why should any of the costs fall on him? We will however reserve the point. By content a verdict was given for the plaintiff, subject to the opinion of the court on the deposition offered, and another to be made with a view to establish the mistake and Evans’ knowledge of it. Judgment was given for the plaintiff for 13l. 3s. 11d. debt, with 9s. 2d. damages, and all costs subsequent to 27th November, 1793, when, at all events, Cammel ought to have paid the debt.