#### Ward vs. Bowen.

In an action upon a joint and several note against the survivor of the two makers, the defendant having proved that the plaintiff had sold chattels mortgaged to him by the deceased promisor, for a sum sufficient to pay all the deceased owed him, including the note sued upon, the plaintiff offered himself as a witness to prove that he had applied a large part of the proceeds of the mortgaged property, with the consent of the mortgagor, to the payment of a note which he had indorsed as surety for the mortgagor. *Held,*that the evidence offered was admissible.

The admission of the plaintiff’s testimony could not affect the personal representatives of the deceased, in a subsequent action by the other promisor against them for contribution, and therefore .sec. 51 of chap. 137, R. S., does not apply to the case.

APPEAL from tbe Circuit Court for *Walworth*County.

Action on a joint and several note for $53.60, made to tbe plaintiff March 1, 1858, by tbe defendant *J. B. Bowen*and one Daniel Bowen wbo bad died before tbe commencement *406of the action. Defense, payment by Daniel Bowen in his life time. To prove the payment, the defendant introduced three chattel mortgages given by Daniel Bowen to the plaintiff, with conditions respectively for the payment of $800, $250 and $100, without any description of the nature of the indebtedness, and gave evidence tending to show that the plaintiff had received from sales of the mortgaged property, enough to pay all debts due to him from Daniel Bowen, including the note sued upon. The plaintiff offered himself as a witness, but the defendant objected, and upon an intimation from the court that the plaintiff was not competent to testify as to matters which passed between him and Daniel Bowen, it was agreed that he might give evidence *“*to such matters as did not detail transactions, admissions or conversations had with Daniel Bowen.” The plaintiff being sworn, his counsel offered to prove by him that previous to the making of said mortgages, he had, as surety for Daniel Bowen, indorsed a note given by him to one Hemmingway, on which there was due, at the time of the sale of the mortgaged property, $898.04 ; that said mortgages were made in part to secure him as such indorser; and that by agreement between him and Daniel Bowen, the note to Hemmingway was paid by him out of the avails of the mortgaged property, and was given up to Daniel Bowen in his life time. This evidence was objected to, and the court excluded it.

Yerdict and judgment for the defendant.

*Spooner & Kellam,*with whom were *Spooner & Harlcness,*for appellant,

argued that since Daniel Bowen’s representatives were not parties or privies to this action, sec. 51, chap. 137, E. S., did not apply. The evidence in this action would have no effect in an action by the defendant herein against the estate of Daniel Bowen for contribution.

*Barnes do*Allen, for respondent,

contended that by the terms of the agreement between the parties, under which the plaintiff was allowed to be sworn, the testimony offered and rejected could not be received ; and that it was inadmissible under sec. 51, chap. 187, E. S.

December 11.

*By the*Court,

Cole, J.

The defense to this action was, *407tbat tbe note sued on bad been paid out of tbe proceeds of tbe personal propertyjwhich bad been mortgaged by Daniel Bowen to tbe appellant. It appears from tbe evidence tbat Daniel Bowen bad given *Ward*three chattel mortgages upon some stock, a yoke of oxen, a colt, buggy and harness, and upon various kinds of grain growing upon bis farm, to secure an aggregate indebtedness of six hundred and fifty dollars. It does not appear from tbe mortgages what tbe nature of this indebtedness was. Tbe testimony showed tbat most of tbe mortgaged property, or tbe avails of it,- bad come into tbe bands of Ward, and be offered to show by bis own testimony bow be bad applied these proceeds. He proposed showing tbat about four hundred dollars of tbe avails of tbe property bad been applied in payment of a note given by Daniel Bowen to one Hemmingway, which be bad indorsed, and tbat this- application was made with tbe understanding or agreement of tbe mortgagor. We are unable to perceive any valid objection to the admission of this testimony. It certainly went directly to meet and disprove tbe defense to this action, tbat tbe note sued on bad been paid out of tbe avails of the mortgaged property. Since tbe defense was tbat tbe note had been fully paid and discharged out of the proceeds of tbat property, why should not tbe appellant be permitted to show what bad become of tbe proceeds, and thus rebut any presumption tbat be bad surplus moneys in bis bands to pay the note ? Tbe respondent first went into this matter of tbe chattel mortgages, by offering them in evidence and proving tbe value of tbe property embraced in them, which bad come to tbe possession of tbe appellant; and. hence tbe pertinency of tbe testimony offered, and excluded by tbe court. Tbe appellant was thus called upon to account for all tbe mortgaged property and to show what be had- done with it, in order to meet the respondent’s defensa We can therefore see no objection to bis testifying upon those matters, or to bis showing tbat be bad applied tbe proceeds in strict accordance with the directions of tbe mortgagor. This was in tbe strictest sense rebutting testimony.

It is contended.tbat it was not competent for tbe appellant to testify in regard to transactions or agreements between *408bim and Daniel Bowen, growing out of these chattel mortgages, because Daniel Bowen was dead, and such evidence would tend to establish a claim against his estate. But this is an erroneous view of the case. The note sued on was joint and several, and the appellant was proceeding against the respondent, one of the makers. The administrator or legal representatives of Daniel Bowen were not parties to this suit. And whatever may be the equities between the estate of Daniel Bowen and the respondent in respect to the note sued on, it is very clear that a judgment upon it in this action cannot prejudice the estate, for the simple reason that neither the administrator nor personal representatives of Daniel Bowen are parties to this suit, and therefore will not be concluded by such judgment.

Under the circumstances therefore, we think the circuit court erred in not permitting the appellant to state what he had done with the avails of the mortgaged property, and to show that he had no surplus moneys in his hands with which to pay the note.

The judgment of the circuit court is reversed, and a new trial ordered.