Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-30
DECISIONS OF THE SUPREME COURT
Official.

Opinions OF the Supreme COurt of the
state OF Tennessee, at Knoxville, Sep-
TENDER Term, 1859.
Barton Trent for the OF Cope
This was an action ofdebt upon note under SEAL
alleged to have been executed by Barton TO Trent
and by the latter transferred, by delivery to
Cope The suit was instituted in the name of Trent
the payee tor COpe's Tho defendant pleaded
the general plea of non est fdctlfa. Verdict AID
Judgment were for plaintiff and the is brought
here by an appeal in error.
On the trial. the deposition of William Trent the
payee, and nominal plaintiff on the record, was of
fered as evidence for the plaintiff to disprove the
plea of non est fdcllR which the only defence
relied on, and the deposition of Margaret Trent wife
of said William Trent was also offered as evidence
for sle plaintiff To the readiug of these dispositions
to the jury, general objection was urged by the de-
fendant-nOt specifying the ground of exception
This objection was oyer-ruled and the evidence was
admitted. In this it is alleged the Court erred
Prior to the adoption Of the Code it was settled by
repeated adJudicatOns of this Court that the party
in whose SUIT was brought for the use of an
other could not be witness in favor of the benefi-
ciary. Yerg 297; Humph 405; Yerg. $50.
But ita ngisted that this rule is abrOgated by sec
1910, of the Code, which is as follows: "A nominal
plaintiff onaked trustee shall not be incompetent as
witness account Of his being party to the re
cord" The meaning of this provision is obvious
enough. The intention was simply this, that per-
having no legal interest in the subject matter of
4
on the mere technical and abstract grounl of his
name being used as party on the record.
If this be correct exposition of the provision of
the Code the objection to the competency of Trent
the payee in the note, is not oOYiaed thereby This
is obvious from the very nature of the issue made
in the case which mpeaches the genuineness of the
note sued on.
II is certainly true chat party who transfers
note to another by mere delivery without indOrse-
ment is not liable in the absence OF fraud or spe-
| Lot IL 81, 81
no value, by reason of the insolvency of the maker
But although he does not, in general warrant the
solvency Of the maker of the note yet it is well
settled that lac does warrant that the note is not
forged or ictitious.-Byles on Bills an an. El.,)
| 224. 227-tOp. Story on Prom. Notes. Sec lis
1t is true that this is merely an implied warranty
STILL it is of less force than if it were express
Inasmuch then. as the genuineness of the note is
directly in issue by the defendants plea Of non est
fact,un. and as Trent would be liable on his implied
warranty, in the event of the PLAINTIFFS failure to
recover it is clear that he is incompetent on the
ground of interest as well upon general principles
as under the provision of the Code.
1t is true that by the terms of the transfer Trent
might have exempted himself from this liability
which the law casts upon him, but this he neglect
ed to do. The incOmpetency might also have been
| removed by release from the plaintiff but no
such release was given The mere statement of
Trent in his deposition that he has no interest in
the event of the suit goes for nothing except to
show his ignorance of the legal liability resting upon
him.
| But it is urged by the defendant in error, that
| the question of the competency of Trent, cannot
be considered properly arising, under our prac-
tce.-the objection to the deposition being general.
The deposition was taken without cross examina-
ton. There was no exception taken until the depO-
sihon offered in evidence on the trial when as
appears from the bill Of exceptions the defendant
excepted to the reading of the deposition"
By the uniform course of decision of this Court
| n a wit
able upon general exception to his deposition.
| 10 Humph., l6; Swan, 81; ID. 1873 SGeed,
| 637-645.
And the omission to except to the competency of the
witness at the time of taking the deposition does
not preclude the party from doing so at the trial
| 1t is necessary to observe that Trent being in
competent as a witness. his wife was equally So
| The Judgment will be reversed. and the case re-
manded for a trial. MCKINNEY.
A true copy. Test: c. W. Nelson, Clerk.