The depositions objected to by the plaintiff tended to prove the facts alleged in the answer, and were properly admitted to be read.
Doby was not a party to the suit of Billings against Williamson in South Carolina; and the certified copies of the decree, and of the opinion of the supreme court of the state, in that case, offered by the plaintiff, were not, therefore, competent evidence, nor had they any relevancy whatever, and were rightfully rejected.
The evidence sustained, we think, the answer and the-finding of the court.
The fact that Miller lived in South Carolina and Doby in Arkansas, and that the instrument was made payable one day after date, and the other admitted facts in the case, were strongly corroborative of the testimony of Doby, that it was given only as an acknowledgment of his liability to Miller on account of the surety debt he had paid for him, and with the understanding that it was to be a credit in the settlement between them in respect to his legacy orportlon in his mother’s estate, and not as an absolute obligation. Such being the case it was a fraud in Miller, contrary to the intent and understanding with which he received it, before such a * settlement, to assign it. It was an attempt by him to take undue and unconscientious advantage by a breach of the confidence reposed in him. 1 Story’s JSq., sec. 187.
And having been assigned after maturity, the plaintiff had no better right to sue on it than Miller had before the-assignment.
If, however, upon a settlement hereafter, it should be found that Miller is not indebted to Doby’s estate, or not-, to the amount specified in the instrument, the plaintiff will be entitled to whatever is due upon it, as he stands in. the position of assignee of whatever right — legal or equitable — Miller may have had in it. The plaintiff should not, therefore, have been perpetually enjoined from suing on the instrument, but his action should have been abated or dismissed without prejudice to his right to bring another suit, if upon settlement between Miller and Roby’s representative, it should be found that anything was due Miller.
The decree must be reversed, and a decree will be rendered here as above indicated.