Williams v. Judy

8 Ill. 282

Opinion

The Opinion of the Court was delivered by

Caton, J.

*

This suit was brought by Judy against Williams on a promissory note made by Williams, and payable to one Whiteside, and dated on the 13th of April, 1839, for the sum of two hundred dollars, and payable 30 days from" date, and by Whiteside assigned to Judy. The defendant filed pleas of the general issue, and that the consideration of said note was for money won at gaming. On the trial of the cause, the defendant proved by one Reed, that he had seen the note in the possession of Whiteside in September, 1839, after the same became due, and that at that time the note had not b.een assigned. The defendant then offered to prove, that at the same time Whiteside, the payee of the note, admitted that it was given for money won at gaming. Upon the objection of the plaintiff’s counsel, the Court held these admissions to be incompetent evidence. This decision of the Court presents the only material question for our consideration, and is presented for the first time to this Court for its decision-.

We find it abundantly settled by authority, and it is well supported by reason, that the admissions of an assignor of a chose in action may be given in evidence against the assignee, if the admissions were against his interest at the time, especially if a.cause of action existed presently, when the admissions were made.

In the case of Pocock v. Billing, 2 Bing. 269, Best, C. J. said: eeIn order to render these declarations receivable, it ought to have been shown, that the party making them was the holder of the bill at the time. They are admissions, and as such receivable only when they are supposed to be adverse to the interest of the party.” In this case, subsequently, at JYisi Prius, these admissions of the assignor of the bill were admitted in evidence against the assignee, it having been proved that the admissions were made before the assignment. Ry. & Mood. 127.

In Shirley v. Todd, 9 Greenl. 83, it was held that such admissions were competent evidence. Weston, J. in giving the Opinion of the Court says: “We are satisfied that the declarations of Moses Shirley, the payee of the order, while the interest was in him, are admissable in evidence.” In that case the admissions were made, as in- this, after the maturity of the paper, and before its transfer.

We deem it unnecessary to refer to the great multitude of cases on this subject, especially as they are principally all collected and commented upon by Messrs. Cowen & Hill in their notes to Phillips’ Evidence, 663-8. It may be said that there is but one Court whose decision forms an exception to this rule, and that is the Supreme Court of New York. Since the collection of the cases on this subject by Cowen & Hill, this question has again been before that Court, in the case of Beach v. Wise, 1 Hill’s (N. Y.) R. 612. There the present Chief Justice of that Court, in the decision of the case, expresses his disapprobation of the rule, as formerly established by that Court, but finally follows the former decisions, not feeling himself at liberty to overrule the decisions of those who had gone before him. He says: <eAs an original question I should be unable to see any settled distinction between cases relating to real property, where the declarations of the former owner are constantly admitted, and those relating to choses in action and other personal property, where, as we have seen, such declarations are rejected.” I confess myself unable to see any distinction at all.

It was objected by the defendant in error, that there is no averment in the pleas, that the note was assigned after it became due. That was unnecessary, for by our statute, notes, &c. given for money won at gaming are declared to be absolutely void, even in the hands of the assignee; hence, it was unnecessary to show that the note was received by the assignee mala fide. Besides, this is not a question of pleading, but of evidence, and the presence or absence of such an averment could have no influence upon the admissibility of the proposed evidence.

The judgment of the Circuit Court must be reversed with costs, and the cause remanded for a new trial.

Judgment reversed.

Thomas, J. having been of counsel in this case, took no partin its decision.