Opinion of the Cov.rt by
Napton, Judge.The appellees, Shields and others, brought an action of debt against Isbell and Able, as assignees of a note given by *122defendants to Shannon and Arbuckle, for the payment of <|3i6 62|. The defendants pleaded non assignment, a redelivery of the note sued on, nil debet, and set-off. Upon which several pleas issues were taken and atrial had. At the trial term, the defendants moved to suppress the deposition of one Duncan, upon the ground of want of notice to plaintiffs, and the want of proof tbat the witness came within any of the provisions of the law authorising such depositions to be read on certain contingencies. There was proof of service upon defendant’s wife in due time, but no evidence to show at what distance the defendants lived from the place of trial. The motion to suppi'ess was overruled.
The plaintiffs on the trial, after reading the note in evidence, read a deed of assignment from Shannon & Arbuc-kle, which is substantially as foil ows: The deed declared that the makers, in consideration of the sum of two thousand dollai's paid by plaintiffs, transferred, assigned, and delivered to the plaintiffs certain notes, (reciting therein, among others, the note sued on,) and authorised and empowered the said plaintiffs to use their, the assignee’s names, in suing for and collecting the same, but upon condition, that if said Arbuckle and Shannon should in a reasonable time give good and sufficient security for the payment of the several demands owing to the plaintiffs, (assignees) then the said Shannon and Arbuckle were to be released from all demands by said plaintiffs, and the notes, &c., to be delivered up to said assignees. This deed was signed and sealed by the assignees.
The defendants then introduced several witnesses, whose testimony conduced to show that the condition of the deed of assignment had been complied with, and the notes given up. Among others, defendants offered Arbuckle, one of the assignors, to prove that the condition had been complied with, but objections being urged to his competency, he was excluded by the court.
To rebut the testimony on this head, the plaintiffs offered to read the deposition of Duncan, but the defendants object- . ed, because no reason had been given why the witness was not personally present. The court, however, overruled the *123objection and allowed the deposition to be read. The plaintiffs also read two promissory notes executed by Shannon & Arbuclde to Shields & Hickerson, for the payment of more than $1000, bearing date previous to said assignment, and still-in the hands of Shields & Hickerson unpaid, which testimony was objected to, but objections overruled. The defendants then introduced a witness, by whom he proposed to show that Duncan, the deponent, whose testimony had been read to the jury, had shortly after the occurrence about which he testified, given a very different and contradictory account from that given in his deposition. The court refused to let the witness testify, because Duncan had not been interrogated when making his deposition, whether he had made any such contradictory statements.
^ ment of anou °r bontl may piece of paper that cm which the note or ten.To all the opinions of the court, exceptions were duly taken. A verdict was given for plaintiffs, and a motion for a new trial was made and overruled.
The most material question to be decided in this case arises on the proper construction of this assignment. Our act makes the assignee the legal owner of the bond or notes. That assignments may be made on a piece of paper separate from that on which the note or bond is written appears to be settled in Kentucky, where statutes on this subject are similar to our own. Justone v. Williamson, 2 Bibb, 83. The decision of the Kentucky court, on statutes from which our own are copied, may be safely followed, unless great inconvenience appears likely to arise. I see no reason why several bonds and notes may not be assigned by one instrument, and the same legal operation must be given to the instrument, as though a single bond only were assigned. The fact, that this was a conditional assignment, does not vary the legal ownership; until the condition is performed, the assignee is clearly the legal owner.
The deposition of Duncan was improperly admitted. No reason was shown to the circuit court, to bring him within any of the contingencies of the statute, which would authorise his deposition to be read. The substance of that deposition was, that he was a collector for plaintiffs, called on defendants for the money due on this note, received a portion,, and was promised the balance.
Whenever a witness tobe impeached by proof of any thing he declared’ 01<)r d°ne^ in reía-cause, he is edSuponecross examination, has^said o° declared, or done, that which is in-proved t0 be drtionai assignment of a note is made, the law does not impose upon the maker the burden of ascertaining whether the condition has been performed, and the title of the assignee consequently extinguished.*124The object of this deposition was to rebut the testimony by defendants in support of their second plea, that the notes were delivered up. The testimony was material issue> and the circuit court committed error in my opinion on this point.
Neither do I think the issue itself immaterial. The cancellation of the instrument of assignment and the redelivery of the notes would be the best evidence that the conditions had been complied with, and the legal ownership transferred to the assignees. But a compliance with the conditions of the instrument on the part of the assignors, and a delivery of the notes and bonds assigned to them, would ipso facto effect a nullification of this instrument, without any formal reassignment. Such formal conveyances are not, I believe, now deemed necessary even in cases of extinguished mortgages, much less would I hold it necessary in a case like the present.
The witness, Arbuckle, was clearly incompetent, the ob-of his testimony being to show title out of the plaintiffs and hr himself. Bayard’s Peake, 180. Nor had the defend-J ants any right to contradict the deposition of Duncan, by Proving contradictory statements, without first having called his attention to such statements. 3 Stark. Ev. 183. The introduction of the two notes in evidence which s^°wed an indebtedness on the part of the assignors to two of the plaintiffs, appears to me irrelevant; and because the conditions upon which the deed was to be void were not a liquidation of their debts, but giving good and ample secu- * ° ° ° L Hty.
Because the court admitted improper testimony on a material point in issue, I am of opinion the judgment should be reversed.
Scott, Judge.Whether the deposition of the witness was properly or improperly admitted, is a question 1 deem unnecessary to determine, as it contained evidence relative to an issue-immaterial and extrinsic to the merits of the cause. When a conditional assignment of a note is made, the law does not *125impose on the maker the burden of ascertaining whether the condition has been performed, and the title of the assignee consequently extinguished.
If the maker pays the assignee, although the title of the assignee may have been defeated by the performance of the condition, yet he is indemnified, and the assignor cannot complain, as he had no right to require the maker at his peril to learn whether the assignee’s title to the instrument has been extinguished. If then he is not bound to make this inquiry, and he is indemnified in the payment, he cannot set up at law the defence that the assignees’ title had failed. Moreover to enable the assignee of a promissory note to maintain an action in his own name the assignment must be shown to have been in writing ; by the assignment the payee passed the legal title to the assignee, and although the ex-tinguishment of that title by the performance of the condition on which it was made, may equitably entitle the assignor to the note, yet unless there is an actual reassignment, there is no evidence that he is the legal owner of the note. In all other parts of judge Napton’s opinion except that in relation to the relevancy of (he evidence concerning the two notes, I concur.
Tompkins, Judge.