#### KIBBY’S ADMINISTRATOR *v.*KIBBY, ET AL.

Forgery — answer In chancery— delivering up a note — fraud—endorsements.

Where the complainant has not called on the defendant for an answer, if he volunteer one, the facts set up in it are the same as other independent facts; the answer has no efficacy with out proof, because the complainant has not made the defendant his witness.

Where the bilí charges the defendant with forgery, it would be bad if it called on the defendant to criminate himself on oath. u

Where a note on a third person has been fraudulently obtained possession of, the endorsement forged, and the peison claiming under the forged endorsement has left it in the hands of attorneys to collect, chancery will order the note delivered up in court, and the promissorto pay it to the complainant.

In Chancery-. The intestate, as stated in the bill, held a note on the defendant Weeks, and during his last sickness, his brother, the defendant, G. Kibby, being about the. house, got possession of the note, and counterfeited thereon the name of the decedent as an endorser. The decedent discovering what had been done, caused written notice to be given to Weeks, that the note had been fraudulently obtained and endorsed, and not to pay G. Kibby. Since the intestate’s death, the note has been delivered to *Storer*and *Fox*for collection. Weeks refuses to pay without the note, and Storer and Fox refuse to deliver, &c. The bill prays a general answer from Weeks, and that Storer and Fox may answer, if the note is not in their possession, and if so, may deliver it up, &c.

Weeks, admits the note, that it remains unpaid, that he had no*608tice, and refuses to pay till the note is given him, but is willing to pay whoever may have the legal right to receive it.

*Storer*and *Fox,*

admit the note in their hands as attorneys for Guy Kibby, and disclaim all interest.

*Guy Kibby,*

answers, setting forth certain money dealings between him and his brother, and alleges that when his brother was sick, they settled, and Weeks’s note was given for a part of the balance due him, and his brother’s own note taken for the residue — admits that he wrote J. Kibby’s name on the note as endorser, but says it was at his request, after he tried ineffectually on the bed, several times to write his name. That in taking the note, he insisted upon Kibby’s writing his name to it, which he did. He denies all fraud.

There is a general replication.

*Moorehead*and *Starr,*for the complainants.

*Storer*and *Fox,*contra.

Wright, J.

It is claimed that inasmuch as G. Kibby’s answer *denies*all the allegations in the bill, there is not sufficient evidence to do it away. The complainant did not call for the answer of G. Kibby, and therefore did not make him a witness. His volunteer answer setting up matter in opposition to the bill, cannot be received to exonerate him. It was not proper to call for an answer; for the charge against him was, that he had *committed, forgery, a crime*as to which he was not bound to answer, and if the bill had called for an answer from him, it would have been bad on that account. The allegations in the answer, therefore, stand as any other independent allegations in a cause, of no effect unless proven. It appears that the note was given by Weeks to the intestate, and is unpaid; that the endorsement on the back of it, though in the name of the payee, was not made by him or by his authority, and therefore transferred no interest in the note to G. Kibby; that by his delivery it is now in the possession of Storer and Fox, his attorneys. The claim of G. Kibby, that the note was passed to him by his brother and the endorsement written at his request, on account of his inability to write his name, though he did not write his name to a note given at a later period, stands without any proof, and therefore cannot avail him. There are many circumstances in the case tending to prove the transaction a fraudulent-one on the part of Guy Kibby, viz: The total want of proof that he lent his brother money, or had any money dealings with him; the non-exhibition of any account against his brother, or the note he says was given to him for the balance. He claims to have lent the deceased *‡457 50,*yet in his subsequent schedule and oath before the commissioner of insolvents, he makes no mention of the debt due from the decedent, *609or Weeks, but swears he has no property and no debts due to him. This is wholly inconsistent with his claim of title to the note now in question. He either perjured himself in the oath before the commissioner, or in his answer. If there be mistake instead of crime, it is most likely the mistake occurred in recollecting the most remote facts.

The respondents, Storer and-Fox, therefore will be decreed to place the note on file, for the use of the complainants, and the defendant Weeks, to pay the amount in sixty days to the complainant, or in default, that he have execution. The defendant, Guy Kibby, to pay the costs.