dissenting. — I regret that I cannot concur in the foregoing conclusion of my brothers. The action of the court in rejecting the testimony referred to in the first division of the majority opinion, was not assigned as error, nor distinctly urged as such in the argument, and should, as we have frequently held, be disregarded.
Without competent evidence of the bankruptcy proceedings, and of the recovery of a judgment against the defendants the receipt of the assignee, and the copy of the summons by the United States, were entirely immaterial, and if they had been objected to on the ground of immateriality, there can, it seems to me, be no question that the objection should have been sustained. But if they were immaterial, their exclusion worked no prejudice, and we should not reverse for the mere technical error of placing the rejection upon an improper ground. As I view the case, if this evidence had been admitted, it could not have affected the result. The material matters in support of the defense are, that Valentine was declared a bankrupt, that an assignee was appointed, and that this assignee recovered judgment against defendants for the value of the property received by them in payment of the note. These facts established, the defense is complete, without showing actual payment to the assignee; for the incurring of absolute liability to another, by judgment of a competent court, exonerates defendants from liability to plaintiff. But, without showing these facts, proof of payment to the assignee would be altogether unavailing, because not shown to be authorized. For until the appointment of the assignee is properly shown, he stands to the record as a mere third party, and payment to him would be no more efficient than payment to any other person. If, therefore, defendants introduced proper proof of the bankruptcy proceedings, the appointment of the assignee and the recovery of the judgment, the evidence considered in the second branch of the foregoing opinion was *329unnecessary. If defendants did not make sucb proof, tbe evidence offered was unavailing. In either case its exclusion worked no prejudice. In my opinion tbe judgment should be affirmed; but my brothers say it must be
Bevbrsed.