#### Kiddie, Surviving Partner of Ramsay & Kiddie, v. Gabriel Debrutz.

A confession in an answer to a bill in Equity, may be given in evidence against the Defendant, in an action by a third person. The giving of a note is no extinguishment ot the prior cause of action ; and where there is a count upon a note, as well as the genera] counts, a recovery may be had upon the general counts, .although the note is alleged to be lost.

This was an action upon the case, and the declaration. contained .a count upon a note of hand, a count for money lent, for vvork.and labor done, and the other usual counts.. Upon the trial, the Plaintiff’s counsel could not produce the note, they alleged it wan lost: but they produced an answer in Equity of the Defendant, to a bill brought against him by a third person,in which answer, he stated a schedule of debts owing to him, and amongst others, he stated a debr of £90 due to the .Plaintiff. Mr. Spiller objected, that this bill and answer, being a suit between other parties, and in which the Plaintiffs were no way concerned, the answer could not be read as evidence- — it was evidence only between those who were parties to the suit in Equity.

Per- curiam — Where a verdict is given in evidence, it is to the end that conclusions drawn by a former jury between the same parties, upon the same points, may have some weight with the present jury ; and as it is a conclusion upon evidence subject to the cross-examination and contestation of the party against whom it is produced, it is allowed to be given in evidence,-against him— but a verdict between other parties cannot be given in evidence. However, the confessions of a Defendant, the»*made in private conversation, and to persons no ways concerned in interest, may be given in evidence, and that is the principle the court goes upon with respect to a confession in an answer, it is equally proper to receive evidence. of a confession contained in an answer made upon, oath, as it is to receive evidence of a confession made in a less solemn manner. The evidence was received.

Mr. Williams, for the Defendant, then objected, that-there was no evidence to support the general counts.and, *486¡f there were, yet it having been proved that a note of hand was given, and is now lost, there could be no recovery on the genera! counts, for that note was a negotiable instrument, and may now be. in the hands of some in-dorsee or holder, who may hereafter resort to the Defendant, and will be entitled to recover notwithstanding the judgment the court may now give. The holder will not be subject to any transactions which may take place between the original parties to the note. It is true, a CourtofEquit}', in a ease thus circumstanced, would make a decree, but it would do so upon terms — it would require the Plaintiff to give security that the note should not af-terwards be demanded of the Defendant, or if demanded that he should be indemnified therefrom. This court cannot impose any such terms- — they must give an absolute unconditional judgment, if any. A note, of hand may be given in evidence to support a count for money lent, but the proposition will not hold e converso — proof of service done, will not maintain a count upon a note. The note in the present case cannot be produced to support that count. Were it produced here, and filed amongst the court papers, there would he no danger of its rising up hereafter to charge the Defendant j and although, had there been no count upon a note, nor any evidence of a note, the confession contained in the answer might have been competent to the proof of the count for work and labor done ; yet when the evidence shews a note, it hinders a recovery upon this count also. My objection is, that whilst the note exists, there can be no recovery upon the consideration for which it was given, or the cause of it, lest the Defendant might, be twice charged.

Duffy, e contra

The giving of a note is no extinguishment of the prior cause of action, as a bond or other instrument under seal is. 1 Burr. 352. He said he was unprepared with authorities, not having expected the objection ; but if the court would direct a verdict for the Plaintiff, subject to their opinion as to the matter of law, be would produce authorities some tinte in this term. — . This was assented to, and tiie verdict taken accordingly. And the rourt having taken time to consider the case, and having seen the authorities produced by Mr. Duffy, viz. Ld, Bay 1427, and 12 Mod 309, gave judgment for the Plaintiff — the Defendant’s counsel declining any further argument against these authorities.

*487 Note. — Vide 3d Am. Edit, of 1st. Phil. on Evid. 286, as to confessions in an answer to .. b: 1 ui Eqwty. Tin- Inst non t in this case is fully supported by 2 Phil. on Evid. 11, (2d Am. Edii.)