The opinion of the court was delivered by
Redfield, J.One question made in this case is, whether the admissions of the plaintiff of record are to be received in evidence. At common law the declarations and admissions of the party of record, although a mere trustee, are always admissible; Gibson v. Winter, 5 B. & Ad. 96, [27 E. C. L. 47] where the subject is fully discussed and the cases are cited and commented upon by Ch. J. Denman. But in this State a different rule has long prevailed. We do not allow the, admissions of a mere trustee to go to the jury. The payee of a promissory note, which is put in suit by some other person as holder, but to whom the note is not indorsed, is perhaps prima facie to be regarded in that light. His admissions were, then, correctly enough excluded.
But after the defendants have shown a state of circumstances, which entitle them to defend the note, the defence must prevail, unless the cestui que trust can show, that the defendants, by their conduct, have precluded themselves from such a defence. This rule has been substantially applied, in this State, to the case of a promissory note, sued in the name of an indorsee, and negotiated *377while still current; Sanford v. Norton, 14 Vt. 228; or at least such showing, in"the latter case, will put the plaintiff upon showing that he gave value.
In the present case the offer of the defendants, which was rejected, must be treated the same, as if it had been proved; and it contains a great deal, — perhaps more than could have been proved ; of this we do not know ; counsel are bound to offer to the full extent of the ability of their clients to prove. It is better, perhaps, that they should exceed, than fall short, in this respect. And if there is reasonable doubt in regard to the effect of the evidence, it is better, perhaps, that so much of it should be received, as will determine its character and extent, when it can be done without too much delay and loss of time.
1. But, the evidence having been rejected, we must now determine its force and effect. And of this it seems to me there can be little doubt. The facts offered to be shown in evidence would clearly defeat any pretence of right to recover in the name of this plaintiff for his own benefit. No consideration whatever passed between the plaintiff and the defendants, and the only cases, for which the defendants ever consented to stand as sureties for the plaintiff, had been met and paid by the plaintiff, and thus the defendants had been released from all liability.
2. Lull held this note merely as collateral security, and received it when it was long over-due, upon both of which grounds the defendants might make the same defence, that they could have made, if the note had been sued in the name and for the benefit of the payee. Willard, by the terms of the defendants’ offer, was a mere trustee, and may be laid out of the case, as to giving any additional weight to the rights of Lull.
3. Have the defendants, then, precluded themselves from this defence? We.think not. If Willard had been a bona fide and absolute purchaser of the note, and had either made the purchase, or retained it, upon the faith of the assurance of the defendants, that the note was due and that they had no offset, they would undoubtedly be now bound by such admission, notwithstanding they made it under a mistake of facts. It was so held in a case decided at the last term in Washington county. This will apply to the declaration first made by the defendants, or one of them, to Lull. But *378this was only binding as to that transaction, and was so considered by Lull; otherwise he would not have labored to obtain a second similar declaration.
But when it is considered, that Willard had no interest, and that he was sent to the defendants, merely as the agent of Lull, it is the same as if Lull had gone himself. But, had he gone himself, he must, in order to have acted in good faith towards the defendants, have first informed them of their being released from their liability upon the note by the payment of the debt to Ingraham, and that the plaintiff now wished to assign it to him as collateral security. Had the defendants consented to this arrangement, they would have been bound by it; but not, when such material facts were withheld from them by the very person to whom they were known, and known to be materia] to the defendants’ acting understandingly, and known also not to be within their knowledge.
The only question remaining in the case is, whether it is competent for the plaintiff to be sworn and give evidence on the part of the defendants, by his own consent, but in opposition to the will of the person beneficially interested in the suit.
It is well settled, that the person, who is party of record, may, if he consent, be sworn as a witness and give evidence in the cause, either when he has no interest in the event of the suit, or when he is called to give evidence for the party, whose interest is contrary to his own. Worrall et al. v. Jones, 20 E. C. L. 177. Norden v. Williamson, 1 Taunt. 378. Johnson v. Blackman, 11 Conn, 342. Woodruff v. Westcott, 12 Conn. 134. Farther than this the court have not found it possible to proceed with that unanimity, which is desirable in the determination of important practical questions, like the present. The only doubt arising in the present case is, whether the nominal party can testify against the interest of the real party, without his consent. It seems well settled, that the objection of a co-plaintiff, or co-defendant, is not sufficient to exclude the party, when called as a witness, with his own consent, by the opposite party. For in all cases these objections will come from some person interested in the suit, or else the matter would pass without objection, and the point thus never be raised, or reserved, or discussed at the bar, or decided by the court. For these questions are not allowed to be raised by mere strangers, nor are they decided or *379reported without being raised. And accordingly in all the foregoing cases, except the last, the objection is interposed by a co-party,— which is held no good ground for excluding the witness. 2 Stephen’s N. P. 1737.
But in the last case, Woodruff v. Westcott, which was very elaborately discussed, as is usual in that court, the objection was raised by the party in interest, to whom the note had been assigned, but which was sued in the name of the payee ; — so that the case was precisely parallel with the present. And the law in Connecticut, by express statute in regard to defences good against the nominal plaintiff, rests upon the same ground that it does in this State, — the same that it does in the court of chancery. Neither this, nor the case of Johnson v. Blackman, was before the court at the time of the argument. There can be little doubt, I apprehend, if we follow out the decisions, either at common law, or in the American States, upon this subject, that the plaintiff was a competent witness. 2 Cow. & Hill’s notes to Phil. Ev. 142, note 129; also pages 134, 136, note 122. But this point is left undetermined.
Judgment reversed and case remanded.