The first question presented for our decision in this case, is whether the defendant was a competent witness in his own behalf, and if admissible at all, whether he was competent to give evidence in relation to that part of the demand in controversy which consisted of the promissory note referred to in the complaint. As the case stood upon the evidence when the plaintiff rested, it did not appear that the demand for goods sold had been assigned by Bldad Calkins to the plaintiff. That demand was one originally belonging to the plaintiff. It was for wheat of the latter, which the witness Calkins, as his agent, sold to the defendant. In respect to this part of the plaintiff’s claim, and aside from the statements in the complaint, there was no ground for admitting the defendant as a witness for himself. But the complaint states absolutely, that such indebtedness was to the plaintiff and the witness, Bldad Calkins, jointly, and that the plaintiff derived his title to Bldad’s share by assignment from him. He could not, on his own statement, recover any portion of the demand in his own name alone, without an assignment from Bldad Calkins. So far, therefore, as this portion of the plaintiff’s claims was concerned, there was a material variance between the complaint and the evidence, if not an entire failure of proof to sustain it. Assuming that the plaintiff’s title to the share of Bldad Calkins in the demand in question, for the wheat sold, was derived by assignment from the latter, which we think, in the present form of the complaint, he is not at liberty to deny, and he having examined his assign- or as a witness touching that, demand, we think the defendant was properly admitted as a witness in his own behalf, to testify in relation to the same subject.
But the question remains, was he competent to testify in relation to the plaintiff’s claim upon the .note 7 This depends upon two other questions: 1. Was the plaintiff an assignee of the note, in such a sense as to allow the defendant to offer himself as a witness after the plaintiff had examined the assignor, in .pursuance of § 399 of the code 7 2. If he was not, then, did the fact that the defendant was properly sworn as a witness on the trial, and was competent to testify on one subject, ne*281cessarily entitle him to testify on all subjects upon which the plaintiff’s assignor had been properly examined, including the plaintiff’s claim upon the note? Upon the first of these questions, there has has been considerable conflict of judicial decision. In Bump v. Van Orsdale, (11 Barb. 684,) this very question was decided by the general term in the 6th district, in which, it was held that the transfer of a negotiable promissory note was an assignment of a thing in action under §§ 111, 112 of the code; and that where in an action upon such a note, against the maker, by a person to whom it had been transferred, a former holder through whom the plaintiff derived his title to the note was introduced and examined as a witness on behalf of the plaintiff, the defendant had the right, under § 399, to offer himself as a witness to the same matter.
In Potter v. Bushnell, (10 How. Pr. R. 94,) the general term in the 3d district followed the case of Bump v. Van Orsdale. In adopting the construction given by the court in the 6th district to the 399th section of the code, the court in the 3d district, after showing, as I think, that such construction was not the true one, placed their decision upon the ground that it was better to adopt it than to establish a conflicting precedent.
In Hicks v. Wirth, (10 How. Pr. R. 555,) the court of common pleas of the city of New York, at general term, adopted a different construction of the section under consideration; holding that the indorser of a note was a competent witness for the plaintiff, and that his being examined as a witness for the plaintiff did not warrant the admission of the defendant to testify in his own behalf, (a)
The foregoing are all the reported cases I am aware of, where this question has been distinctly passed upon and decided. They were all cases at general term, and appear to have been fully considered. The reasoning of the court in the case of Potter v. Bushnell, upon the merits of the question, tended to a conclusion adverse to the decision made; and in the case of Hicks v. Wirth, Judge Ingraham has given the question a thorough *282examination, and has reviewed all the cases hearing on the subject.
*281(a) See also, Collins v. Knapp, (18 Barb. 532.) Goble v. Kinney, (11 How. Pr. R. 248.)
*282In Jagoe v. Alleyn, (16 Barb. 580,) Justice Strong, of this district, discusses the question, but does not decide it. We are inclined to adopt substantially the views expressed by Judge Ingraham, in Hicks v. Wirth, believing that § 399 was not intended to allow a party to the action to become a witness in his own behalf, excepting for the purpose of meeting the evidence of one who is made a competent witness by virtue of the same and other sections of the code. A former holder of a negotiable note, whether payee, or one to whom it afterwards came by regular purchase and transfer, was always a competent witness for either party, unless excluded by interest, which is no longer any objection to a witness’ competency. It could not have been the intention of the lawmakers to allow a party to be a witness for himself, simply because the adverse party had introduced one as a witness who was always competent as such by the common law. We are also of the opinion that the fact that the defendant was properly admitted as a witness to testify concerning the demand for wheat sold, did not justify his examination touching the note. The examination of the witness Calkins in relation to the demand for wheat sold, opened the way for the defendant’s examination in his own behalf, touching that, and no other matter. (Jagoe v. Alleyn, supra.)
I incline to the opinion that the court erred in admitting the evidence of the judgment and execution thereon in favor of Pace against Eldad M. Calkins, and payment to the sheriff by the defendant, on the ground that such matter of defense was not sufficiently set up in the answer. No one, it seems to me, would suspect, under such a general answer as the one in this case, that the defendant contemplated this special statutory defense, It was not a transaction in which either the plaintiff or Eldad M. Calkins took any part, or of which either is presumed to have had any knowledge. The fair and reasonable interpretation of the statements in the answer that -the demands were fully paid and satisfied to the said Eldad M. Calkins, the lawful owner of the same, is that they had been paid to the said *283Eldad in some way which by the common law would be deemed a valid payment. I think where a party volunteers to pay the debt of his creditor without his request or consent, in the special manner provided in § 293 of the code, in order to avail himself of such payment in an action, he should set it up specially in his answer. There is no hardship in requiring this, and it is, in my judgment necessary, to prevent surprise. Besides, it is not a payment to the creditor. It can only be regarded as a set-off or counter-claim, for money paid to the use of the judgment debtor, and should be pleaded as such, in order to give the other party an opportunity of replying to it.
[Monroe General Term, December 3, 1855.The objections to the judgment roll, that the summons was not attached, and that it did not show an order of reference, were not- well taken. They were, at most, matters which rendered the judgment erroneous, but did not render it void.
For the reasons before stated, however, I think a new trial should be granted, with costs to abide the event. Each party to be at liberty to amend his pleadings as he shall be advised.
Selden and Strong, justices, concurred in the foregoing views, except as to the sufficiency of the defendant’s answer to admit the evidence of the judgment and execution in favor of Pace against Eldad M. Calkins, and the payment to the sheriff thereon ; as to which they expressed no opinion.
New trial granted.
Selden, T. R. Strong and Welles, Justices.]