#### W. JOHN *v. L.*JOHN.

Special and common counts — secondary evidence — failure to prove special contract — order to produce papers-notice — common count for land sold — witness disqualifying himself — construction — variance—assignment to commissioner of insolvents.

Where the plaintiff declares on a special contract, and also on the common counts, if he fail to prove the special contract, he may recover on the common counts, if the case be one on which he could have recovered on *those*counts, if there had been *nospecial*contract.

Where negotiable notes are given in execution of a contract which are outstanding at the trial, no recovery can be had on the original contract without accounting for the notes.

Wheie a writing, the foundation of the action, is in the possession of the defendant, and he has been notified to produce it, or if it has been lost, evidence may be given of the contents.

Under the statute a party may call upon his adversary to produce papers in his possession material to the issue, at the trial, and if withheld, the court will compel their production, or give judgment by default or nonsuit.

If the paper declared upon be lost or in possession of the other party, the excuse for the non-production must be shown, by the party offering the secondary proof.

*Quere.*If a recovery can be had in a common count in assumpsit for *land sold?*

Where a witness disqualified has a paper which he is called upon to identify, or give testimony about, when he is called and sworn, he will not be permitted to hand the paper to another and evade the liability to answer.

A note to the heirs of John or their guardian, and signed for William by Lemuel,, is a note to the heirs by William, not to them, for Williams’ use.

If the note offered be misdescribed in date, the objection is fatal to its introduction under the special count, but it may be admissible under the common counts.

Where the subject of the action has been transferred by the plaintiff in a general assignment to the commissioner of insolvents before suit, the insolventhas no apparent right to sue, and he must show the reason for proceeding in his name, or fail.

The legislature has the power to prescribe the mode of transferring choses in action to pass the legal interest,-and no particular form of words is necessary.

Debt, for money had and received, for land sold, on a note for $400, payable in sixty days, &c, and on a -note for $360, payable to the heirs of John John for William John. Plea, nil debet, with notice of setoff.

*585Evidence was offered to show that the defendant purchased land of the plaintiff, gave several notes for the purchase and took a deed; also, that the defendant said he had bought land and paid *‡*150 in advance. A witness was then called to prove that the plaintiff had pledged these notes, to secure a loan of money, &c.

Morris, for the defendant,

objects: If the notes are due, the plaintiff must sue on them. If they are in the possession of the defendant, the plaintiff must give notice to produce them.

*Storer*and *Fox,*

said they could prove that the defendant got these notes into his possession, and now holds them as his own. We have a right to recover the consideration on the count for *land sold.*By showing that the defendant has the notes we may resort to that count, or we may give the evidence under the money counts: (7 *John. II.*311; 10 *John.R.*105; 15 *John. R.*450; 14 *John. R.*640; 6 *Crunch*253.)

*Mr. Strait,*the attorney for the defendant,

was then sworn as a witness, and asked to produce the notes. He said he had a note in his possession, but declined to produce it.

*Mr. Storer,*

asked the Court to direct the witness to produce the note.

Wright, J.

If you declare on a special contract and also on the common counts, and fail to prove the special contract, you may resort to the common counts, if the case be such that you might recover upon it if there had been no special contract.

If negotiable notes are given upon a contract, and the notes are outstanding at the trial, without being accounted for, a party cannot resort to his contract and recover as if'no notes were given.

If a note, the foundation of the action, be lost, or is in possession of the defendant, its contents may be proved after a call upon the defendant to produce it, and a refusal.

Under our statute, a party has a right to call on his adversary for copies of any paper he has material .to the issue, and to give written notice to produce them at the trial, and if. he fail, the court will compel the production, or give judgment by^default: (29 *O. L.*75.)

You have declared on these notes, as if in your own possession, and say they are in the possession of the defendants, but you have given no notice to produce them and do not bring yourself within the statute. You cannot prove their contents as lost papers, because the claim is that they are not lost, but in the hands of the defendant.

I doubt if you can recover on the common count for land sold.

*586Storer,

then offered the following note:

‘I do hereby bind myself to pay to the heirs of John John, deceased, or their guardian, the sum of one hundred dollars, *for Wm.*John, with interest till paid, this 25th February, 1825.

Lemuel John.’

Morris, for the defendant,

objected to this and all the evidence about the notes, they are all dated in 1825, while those declared on, are dated in 1827.

As to this particular note, it is not *to the plaintiff,*but *by the defendant as the plaintiff’s agent, to the heirs of John John.*

*Storer,*

in reply, cited: 1 *John, R.*139; 2 *John. Cases*58; 2 *Caines R.*148.

Wright, J.

We have just decided that without notice the court cannot order the production of papers.

The witness was then asked if he would state the contents of the notes? He replied that he had not got the notes then, and did not know that he could.

Wright, J.

Can you refer to the notes to refresh your memory as to their contents?

Witness. They are not now in my possession or control.

Wright, J.

Were they in your possession when you were sworn?

*Witness.*They were.

Wright, J.

Have they been put out of your hand since, and if so, to whom have you given them?

*Witness.*I pushed them towards my client since the question was asked, and I suppose he took them.

Wright, J.

Can you now refer to them?

Witness. I do not know that I can.

Wright, J.

You can see. It will not be permitted a witness, while on the stand, by his voluntary act to disqualify himself from testifying. It would be a scandal to the administration of justice, if it were so. You can either refer to the notes and *testify,*or abide the consequence of a refusal.

The witness then stated that the notes were dated the 23d February, 1825, one was for *‡*150, and assigned to James Wright; the other was receipted on the back.

Wright, J.

The party for whose use a note is given, may, in some cases, sue on it, to avoid circuity of action. I, at first, doubted if this note wras not, as the defendant’s counsel supposed, given *for William John, to John John’s heirs,*but on examination, think it given for the plaintiff’s use. The objection to the variation *587in date, applies to the counts on the notes, and is fatal, they may go for the present, and we will see whether any use can be made of the evidence under the money counts. I still think, an implied assumpsit for land sold cannot be maintained; but as you have made up your issue upon that point, proceed.

*Storer.*

I know it can be sustained, and such are the authorities.

When

Storer, for the plaintiff, and Morris, for the defendant,

had closed their arguments to the jury,

*Storer*and Fox,

contended, that although the assignment must vest the equitable interest in the commissioner, the legal right was in the insolvent, and suit eould only be in his name; none but the .assignees of negotiable paper-can sue in their own names, and so the Court of Common Pleas decided.

Wright, J.

The positive knowledge of counsel, when insisted upon as to matters of faet, will be relied upon by the. Court. In matters of law, however, we must be governed by our own poor judgments. .The authorities appealed to, may be produced if relied upon.

Much other evidence was given on both sides, and amongst other things the application of the plaintiff for a discharge under the insolvent law with a schedule of his debts, in which the present demand was not included, and an assignment of all his effects, credits, &c. to the commissioner of insolvents.

Wright, J.

invited the counsel to discuss the effect, which the assignment to the. commissioner of insolvents made since suit brought, had on the plaintiff’s demand.

Wright, J.

The insolvent commissioner’s books being offerered in evidence without reading, I did not notice the assignment until the attention of counsel was called to it.

The law under Which this proceeding was had, (22 *O. L.*327,) requires of the insolvent to assign to the commissioner in trust for his creditors, *iby deed or instrument of*writing,’ all debts due or to become due, or in any manner accruing, and no form of words shall be necessary to the transfer, &c. The commissioner is empowered to prosecute or defend any suit he may deem necessary in settling the insolvent’s estate. Suits pending are to be prosecuted by the commissioner as if no assignment had been made, but new suits are to be brought in the name of the commissioner, or of the insolvent, as the case may require. The legal right in these choses in action is by law, vested in the commissioner, and he is authorized to sue in his own name, except the case may require the use of that of the insolvent. In this case, the insolvent has no legal interest, that is *588in the commissioner of insolvents. It is not pretended that the commissioner is prosecuting this suit for the creditors — we have occular demonstration to the contrary. The plaintiff is suing for a matter in which he had no legal interest when he brought suit— it would seem, of course, that he could have no right to recover.

But it is said this claim is not negotiable, and therefore must be sued in the name of the insolvent. We recur again to the fact, that it is John, and not the insolvent commissioner, that has sued. Is it not, however, competent for the legislature to prescribe the mode of transferring legal interest in choses in action, and to direct that a recovery may be had in the name of one kind of assignee, as well as another. Can the .usage of merchants effect more as to the legal right to sue, than the positive act of the legislature? That will not be pretended. The legislature, then, has provided for the transfer of *all the rights of the insolvent,*legal and equitable, by assignment without particular form of words to the commissioner, and authorized him to prosecute claims in his own name, or in certain cases, in the name of the insolvent. Who, then, has brought this suit? Not the commissioner of the insolvents in the name of the insolvent, but the insolvent himself — one having no legal interest in the suit. The rights of the parlies must be determined as their interest appeal’s. It is a part of the case that the plaintiff has no right of action against the defendant. We are, therefore, of opinion that by the fact of assignment, the right of action is vested in the commissioner, and must instruct the jury that the plaintiff has no right to recover.

The parties declined further argument.

Yerdict for the defendant.

Motion for a new trial reserved to the Court in Bank, and there overruled; (see 6 *O. R.*271.)