Soates, J.
The points made are : improperly excluding the evidence of the declarations or admissions of Smith, one of the assignors, made, as a witness on a former trial, in relation to the transaction for which the notes were given; also an account showing the same, furnished by Smith ; letters from assignor’s attorneys to them about the same; the admission of Sharpe’s reply to ninth cross interrogatory; giving instructions for plaintiff below; and refusing the second and fifth instructions of plaintiff here.
The defense set up was, that plaintiff was merely an accommodation drawer for Vance & Smith, the assignors, but real parties in interest here, the note being assigned after due, and for the mere purpose of collection. The suit in which Smith testified, was an action of replevin for part of the pork for which the notes were given, brought by the Cassards, the real purchasers of Vance & Smith, as alleged by plaintiff, and against him. He alleges that he acted merely as factor and packer, and claimed a lien for commissions, etc., as such. He now insists that he is entitled to these statements of Smith, as admissions made on that' trial, the account of that transaction as exhibited there by him, and the letters of Vance & Smiths’ "attorneys, in a suit by them against the Cassards for the same money now sued for, all for the purpose, and tending to show that he is a mere accommodation drawer and indorser of these notes, and the bills of exchange for which they are renewals.
A preliminary question, raised here for the first time, should be disposed of. There is no ■ proof that these notes were assigned after due, or that the true interest in the money is in Vance -& Smith, therefore, as the evidence, if admitted, could not change the verdict, no new trial will be granted. 3 Gil. R. 202; 3 Barb. S. C. E. 550 ; 14 Ohio R. 502; 2 Tenn. E. 4; 1 Bos. and Pull. R. 338.
It is answered, that there was some evidence tending to show that the notes must have been overdue, before Vance & Smith re-acquired them from the Bank of Indianapolis. Again, the whole of the proceedings seemed to be conducted upon the assumption and acquiescence in the fact, that Vance & Smith are the beneficiaries. For the purpose of determining upon the admissibility and relevancy of the testimony excluded, we will regard it as acquiesced in, or that it coj.il d have been met with proofs, had it been denied on the trial. An authority for this course is found in Beekman v. Bond, 19 Wend. R. 444, in relation to a very essential fact to the defense. Assignments made after the money became due, will not prevent the payor from making the same defense as if not assigned. Rev. Stat. 1845, p. 385, Sec. 8 ; Byles on Bills, top 484, side 352. And in case the assignee stands upon the title of the prior holder, then the declarations and admissions of such assignor or prior holder are evidence against him. Ibid.; 1 Greenleaf Ev., Sec. 190; Hatch v. Dennis, 10 Maine, 246; Shirly v. Todd, 9 Maine R. 84 ; 2 McCord R. 241; Shaw v. Broom, 4 Dowl. and Ryl. R. 730, (16 Eng. C. L. R. 221) ; Coster v. Symons, alias Sherwood, 1 Carr, and Pay. R. 148, (12 Eng. C. L. R. 95); Haddan v. Mills, 4 Carr, and Pay. R. 486, (19 Eng. C. L. R. 489.)
These admissions or statements were therefore clearly admissible. It was not for the court to determine what they would prove, but only whether they would tend to prove the issue; if so, they should have been left to the jury, and this has been so repeatedly ruled by this court. 5 Gil. R. 298, 573; 12 Ill. R. 195 ; 14 ibid. 182; 15 ibid. 251.
Again, it is objected to it, because it will not establish the fact that plaintiff was an accommodation drawer and indorser, but that he, as agent or factor of Cassards, drew these bills on Cruse & Lippencott, and gave them in payment to Vance & Smith, and, such being the fact, he will be liable, although but an agent. This is true, to a great extent. See Story on Agency, Secs. 256 to 259, 261. And he might be liable to third persons, when as between him, "as drawer, and the payee of the bill, it might be shown that he became the drawer, at the instance of the payee, the better to enable the latter to negotiate it for his accommodation. We should not, therefore, determine what the evidence really establishes, but that it tends to establish the cause of action or defense, and leave it to the jury.
Again, it is objected that the admissions are contained in a bill of exceptions in a case in Cincinnati, and are matters of record, and can only be proven by a properly certified copy of the record. And so is the law, in relation to matters of record, as applicable to proof of what a deceased witness swore on a former trial, (Beals v. Guernsey, 8 John. R. 446); or contents of declaration not filed, (33 Maine R. 213) ; or the conviction of the party in another State, (15 Ohio R. 224) ; or title to land, (6 Eng. Ark. R. 23) ; or the fact of a trial, and matters in issue, (9 Gill. Md. R. 9 to 19; 17 Ohio R. 156.) But the production of the postea will be sufficient to let in proof of testimony of a deceased witness, (1 5th 162.) But objection for want of it must be taken at the trial, or it will be considered as waived. 8 John. R. 446, note a; and see 11 John R. 128; 17 ibid. 176 ; 6 Cowen R. 162; 2 John R. 20.
But it might be questionable whether this record could be read against Smith for any purpose, and less so as to admissions. Defendant seems to mistake a reference to the bill of exceptions, certified by the clerk, for authenticity to the witness, for the purpose of refreshing his memory, as and for an attempt to read it as a bill of exceptions, and part of the record. It was not offered as a record, or part of a record, nor is it necessary to lay any such foundation for proving, these admissions, as such. The question, and the reason upon which it rests, is very different from that upon which the testimony of a deceased witness is placed. The statement of a deceased witness would be upon the footing of mere hearsay, unless it be shown that there was a trial, and that he was sworn. Admissions are not obnoxious to either objection. Admissions and confessions need not be under oath, nor is it requisite that there should be any trial. Yet statements made under oath, when testifying as a witness in a cause, may be proven as admissions. And, for that purpose, it is wholly unnecessary to prove the existence of the trial and oath. Yet allusion may be made to these, to fix the time, place and circumstances of the admission, without record evidence of these facts. The trial, etc., are mere incidentals, res gestae, of the main fact, that is, the confession or admission. It is in this sense I understand the witnesses to allude to the trial, bill of exceptions, etc., here, and to show the character and reliability of the notes or memorandums from which they refresh their memories. The clerk extracted and certified to them this portion of the memorandums, that they might rely upon its accuracy without examining and comparing it with the original minutes. They used them, refreshed their memories, recollected the facts, swore that the substance was fairly set out in the memorandums, and desired that it should be made, taken, and set out in the deposition, as their answer, and statement of the admissions of Smith, embracing all he said on that occasion. The authentication of the bill of exceptions might well have been left out, as being no part of witness’ answer; it was, doubtless, copied in to show that the answer had been faithfully copied into the deposition.
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Soates, J.
The points made are : improperly excluding the evidence of the declarations or admissions of Smith, one of the assignors, made, as a witness on a former trial, in relation to the transaction for which the notes were given; also an account showing the same, furnished by Smith ; letters from assignor’s attorneys to them about the same; the admission of Sharpe’s reply to ninth cross interrogatory; giving instructions for plaintiff below; and refusing the second and fifth instructions of plaintiff here.
The defense set up was, that plaintiff was merely an accommodation drawer for Vance & Smith, the assignors, but real parties in interest here, the note being assigned after due, and for the mere purpose of collection. The suit in which Smith testified, was an action of replevin for part of the pork for which the notes were given, brought by the Cassards, the real purchasers of Vance & Smith, as alleged by plaintiff, and against him. He alleges that he acted merely as factor and packer, and claimed a lien for commissions, etc., as such. He now insists that he is entitled to these statements of Smith, as admissions made on that' trial, the account of that transaction as exhibited there by him, and the letters of Vance & Smiths’ "attorneys, in a suit by them against the Cassards for the same money now sued for, all for the purpose, and tending to show that he is a mere accommodation drawer and indorser of these notes, and the bills of exchange for which they are renewals.
A preliminary question, raised here for the first time, should be disposed of. There is no ■ proof that these notes were assigned after due, or that the true interest in the money is in Vance -& Smith, therefore, as the evidence, if admitted, could not change the verdict, no new trial will be granted. 3 Gil. R. 202; 3 Barb. S. C. E. 550 ; 14 Ohio R. 502; 2 Tenn. E. 4; 1 Bos. and Pull. R. 338.
It is answered, that there was some evidence tending to show that the notes must have been overdue, before Vance & Smith re-acquired them from the Bank of Indianapolis. Again, the whole of the proceedings seemed to be conducted upon the assumption and acquiescence in the fact, that Vance & Smith are the beneficiaries. For the purpose of determining upon the admissibility and relevancy of the testimony excluded, we will regard it as acquiesced in, or that it coj.il d have been met with proofs, had it been denied on the trial. An authority for this course is found in Beekman v. Bond, 19 Wend. R. 444, in relation to a very essential fact to the defense. Assignments made after the money became due, will not prevent the payor from making the same defense as if not assigned. Rev. Stat. 1845, p. 385, Sec. 8 ; Byles on Bills, top 484, side 352. And in case the assignee stands upon the title of the prior holder, then the declarations and admissions of such assignor or prior holder are evidence against him. Ibid.; 1 Greenleaf Ev., Sec. 190; Hatch v. Dennis, 10 Maine, 246; Shirly v. Todd, 9 Maine R. 84 ; 2 McCord R. 241; Shaw v. Broom, 4 Dowl. and Ryl. R. 730, (16 Eng. C. L. R. 221) ; Coster v. Symons, alias Sherwood, 1 Carr, and Pay. R. 148, (12 Eng. C. L. R. 95); Haddan v. Mills, 4 Carr, and Pay. R. 486, (19 Eng. C. L. R. 489.)
These admissions or statements were therefore clearly admissible. It was not for the court to determine what they would prove, but only whether they would tend to prove the issue; if so, they should have been left to the jury, and this has been so repeatedly ruled by this court. 5 Gil. R. 298, 573; 12 Ill. R. 195 ; 14 ibid. 182; 15 ibid. 251.
Again, it is objected to it, because it will not establish the fact that plaintiff was an accommodation drawer and indorser, but that he, as agent or factor of Cassards, drew these bills on Cruse & Lippencott, and gave them in payment to Vance & Smith, and, such being the fact, he will be liable, although but an agent. This is true, to a great extent. See Story on Agency, Secs. 256 to 259, 261. And he might be liable to third persons, when as between him, "as drawer, and the payee of the bill, it might be shown that he became the drawer, at the instance of the payee, the better to enable the latter to negotiate it for his accommodation. We should not, therefore, determine what the evidence really establishes, but that it tends to establish the cause of action or defense, and leave it to the jury.
Again, it is objected that the admissions are contained in a bill of exceptions in a case in Cincinnati, and are matters of record, and can only be proven by a properly certified copy of the record. And so is the law, in relation to matters of record, as applicable to proof of what a deceased witness swore on a former trial, (Beals v. Guernsey, 8 John. R. 446); or contents of declaration not filed, (33 Maine R. 213) ; or the conviction of the party in another State, (15 Ohio R. 224) ; or title to land, (6 Eng. Ark. R. 23) ; or the fact of a trial, and matters in issue, (9 Gill. Md. R. 9 to 19; 17 Ohio R. 156.) But the production of the postea will be sufficient to let in proof of testimony of a deceased witness, (1 5th 162.) But objection for want of it must be taken at the trial, or it will be considered as waived. 8 John. R. 446, note a; and see 11 John R. 128; 17 ibid. 176 ; 6 Cowen R. 162; 2 John R. 20.
But it might be questionable whether this record could be read against Smith for any purpose, and less so as to admissions. Defendant seems to mistake a reference to the bill of exceptions, certified by the clerk, for authenticity to the witness, for the purpose of refreshing his memory, as and for an attempt to read it as a bill of exceptions, and part of the record. It was not offered as a record, or part of a record, nor is it necessary to lay any such foundation for proving, these admissions, as such. The question, and the reason upon which it rests, is very different from that upon which the testimony of a deceased witness is placed. The statement of a deceased witness would be upon the footing of mere hearsay, unless it be shown that there was a trial, and that he was sworn. Admissions are not obnoxious to either objection. Admissions and confessions need not be under oath, nor is it requisite that there should be any trial. Yet statements made under oath, when testifying as a witness in a cause, may be proven as admissions. And, for that purpose, it is wholly unnecessary to prove the existence of the trial and oath. Yet allusion may be made to these, to fix the time, place and circumstances of the admission, without record evidence of these facts. The trial, etc., are mere incidentals, res gestae, of the main fact, that is, the confession or admission. It is in this sense I understand the witnesses to allude to the trial, bill of exceptions, etc., here, and to show the character and reliability of the notes or memorandums from which they refresh their memories. The clerk extracted and certified to them this portion of the memorandums, that they might rely upon its accuracy without examining and comparing it with the original minutes. They used them, refreshed their memories, recollected the facts, swore that the substance was fairly set out in the memorandums, and desired that it should be made, taken, and set out in the deposition, as their answer, and statement of the admissions of Smith, embracing all he said on that occasion. The authentication of the bill of exceptions might well have been left out, as being no part of witness’ answer; it was, doubtless, copied in to show that the answer had been faithfully copied into the deposition.
The same distinction between admissions offered against the party who made them, although made on oath as a witness in a trial, and proof of the testimony of a deceased witness, will hold, in relation to the next point discussed in this case, and the authorities referred to in support of it. In relation to the testimony of deceased witnesses, one class of authorities, with very specious and plausible argument and reasons, hold it necessary to prove the precise words, and all that was sworn upon the chief and cross-examination, ipsissimis verbis. Shaw, C. J., has given a very lucid- and able argument, and forcible reasons, in support of this rule, in Warren et al. v. Nichols, 6 Metc. R. 264. He cites and approves The Commonwealth v. Richards, 18 Pick. R. 434, and thinks Mr. Greenleaf had overlooked that case when laying down a different rule in his Treatise on Evidence, 1 Grecnl. Ev., Sec. 165. Both have since been referred to in a note to that section, and a full extract from the opinion in Warren et al. v. Nichols, without alteration of the general rule that the substance will entitle it to be hoard. Judge Carr, in Caton, etc., v. Lenox, etc., 5 Rand. R. 85, goes into a general examination of authorities in support of the latter rule, and sustains it with much force and reason, and we think the better reason from analogy to other business transactions, and contracts depending on memory of witnesses, and oral testimony, is in its favor. The same reasoning might, with the same justice, exclude the substance, and require the precise words of all contracts and admissions.
I do not intend to review the authorities on these two different rules, which have been so ably discussed on each side in the cases above referred to, but simply refer to several on each side, and so leave it. In favor of the rule allowing the substance of the testimony, 1 refer to Marshall v. Adams, 11 Ill. R. 40 ; Miles v. O'Hara, 4 Binn. R. 108; Cornell et al. v. Green, administrator, 10 Serj. and Rawl. R. 15; Chess v. Chess et al., 17 Serj. and Rawl. R. 409; Noble v. McClintock, 6 Watts and Serj. R. 58; Haven v. Wendell, 11 N. Hamp. R. 114; 10 Humph. R. 479 ; Walker v. Walk, 14 Ga. R. 249; 1 Spencer R. 66; 5 Verm. R. 175; 21 Verm. R. 380; 15 Wend. R. 193, and others referred to; 5 Rand. R. 35; and 1 Greenl. Ev., Sec. 165, and references. For precise words, cases referred to in 6 Metcalf R. 264; 1 Greenl. Ev. 165, note 2 ; 4 Tenn. R. 290; 3 Wash. C. C. R. 440; 6 Cow. R. 165; 7 Blackf. R. 11.
The witnesses here testify from recollection, when refreshed by this memorandum, which is not offered here or incorporated as notes of the case, but the facts in it are adopted and sworn to, as the substance of the facts within their recollection; this is enough. Green v. Brown, 3 Barb. S. C. R. 123 ; Bank of Utica v. McKinster, 11 Wend. R. 477.
The depositions, in relation to these interrogations and answers, should have been left to the jury. So, we think, in relation to the account recognized and used by Smith in that case, as tending to prove matters in issue in this case, by showing the real parties to that sale of hogs.
We think differently in relation to the letters from Vance & Smith’s attorneys to them. The letters would show nothing relative to the question, if even otherwise admissible, as Iglehart was, under the statute of Ohio, a competent witness, his interest going only to his credit. Lawson et al. v. The Farmers' Bank of Salem, 1 McCook (21) Ohio R. 206.
The answer of Sharpe to 9th cross-interrogatory, contains, in part, mere matter of opinion and inference of the witness, which should have been excluded. Witnesses should confine themselves to the statement of facts, or the words or substance of the statements of the parties. Marshall v. Adams, 11 Ill. R. 41; Hoitt v. Moulton, 1 Foster N. Hamp. R. 588.
The first instruction for defendant is erroneous; it is not such a case as calls for such an instruction. It was the duty and province of the jury to find the issues upon satisfactory proof of the facts. It was not the province of the court to say the proof must be clear as well as satisfactory, nor to interfere with the doubts of the jury in advance. It is not a case for the application of the doctrine of doubts from the court.
The second and third instructions asked by plaintiff should have been given. The question was settled in principle in Lewis, 16 Ill. R. See Burdick v. Green, 15 John. 247. The other instructions were properly given and refused to the respective parties asking them.
Judgment reversed, and cause remanded for new trial.
Judgment reversed.