Welles v. Thornton.

cess, he must show that it was upon process regular and valid upon its face. He is not bound to resist a public officer having valid process against the goods. But if he complies with any other demand or claim by virtue of legal proceedings not against himself, he must do it at his peril. He must see that the claim or proceeding is a valid one, and he must maintain the validity of such claim, to make out a defense or justification against his bailor.

Giving up this warrant to the receiver was giving it up voluntarily. In Scrantom v. The Farmers and Mechanics' Bank of Rochester, (24 N. Y. Rep. 426,) the bank yielded to the demand of the receiver and paid over the moneys without suit. This was held no protection to him. Judge Sutherland said: "It is doubtful whether the bailee has a right to yield to regular legal proceedings without defending or notifying the bailor of such proceedings." I think he may yield to such proceedings without suit, if satisfied of their regularity, and willing to assume the risk of their validity. At least he must show their validity, if he give up the property without a suit against him, or a binding judgment or order as upon supplementary proceedings.

If these views are concurred in by my brethren, the judgment in this action must be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed.

[MONROE GENERAL TERM, December 4, 1865. Johnson, J. C. Smith and E. D. Smith, Justices.]

JACOB COLLER, executor, &c. vs. JOHN WENNER and GEORGE WENNER.

On the 24th of December, 1855, the defendants made their promissory note for $300 payable to Jacob Coller, senior, one year after date, for money lent and advanced. On the 1st of April, 1859, the payee sold and transferred the note to John Coller. The latter died, in June, 1863, leaving a will, by which he appointed Jacob Coller, 2d, his executor, who, as such executor, after the death of the payee, brought an action against the makers, upon the note. The defendants set up the defense of usury. Held that one of the defendants was properly admitted as a witness in behalf of himself and his co-defendant, to establish the defense, by proving conversations and transactions between himself and the payee of the note at the time it was given.

THIS action was brought to recover the amount due upon

THIS

a promissory note, made by the defendants on the 24th day of December, 1855, for the sum of $300 and interest, payable to Jacob Coller, one year after the date. Said note was given for money lent and advanced by the payee to the defendants, at the time of the execution and delivery of the note. On the 1st day of April, 1859, the payee, Jacob Coller, sold and transferred this note to his son, John Coller. Soon after taking the note, and on the 11th day of December, 1861, there was paid thereon by the defendants, the sum of $15, which was indorsed on the note. John Coller, the assignee of the payee of the note, died on the 17th day of June, 1863, leaving a will, and his son Jacob Coller (the payce's grandson) was, by an order of the surrogate's court, appointed executor of said will. Soon afterwards the payee of the note, Jacob Coller, died, and this action was brought to recover the amount of the note. On the trial of the case at the Livingston circuit court, held in April, 1865, after the plaintiff had rested his case, the defendants sought to establish their defense, which was usury, by the testimony of John Wenner, one of the defendants. This testimony was objected to by the plaintiff and the objection overruled and testimony received. The court directed the jury to find a verdict for the defendants, and they found accordingly. The plaintiff excepted, and appealed from the judgment.

Coller v. Wenner.

McNeil Seymour, for the appellant. I. The testimony of the defendant in regard to what took place, at the time of the loan of the money and the making of the note, between the payee, Jacob Coller, and the defendants, related solely to a transaction and conversation had personally by the parties defendant, with the deceased assignor of the note. As between the payee's executors and the parties defendant, the testimony is inadmissible; it would be clearly inadmissible in an action brought by the testator, John Coller, the assignee of the note. Was it admissible against the assignee's executor? Or, in other words, does the death of the assignee open the mouths of the defendants, to detail this transaction against his representative appointed under the laws of the state, by a court of competent jurisdiction, trustee of his estate? We think this was not the intent of the framers of the law. John Coller, the assignee, had he sued this note, would have recovered for the benefit of his estate. The executor would recover, not for his own benefit, for he has no personal interest, but for the benefit solely of the estate, and to carry out and execute the wishes of his testator. The plaintiff has no title to the cause of action; he represents in court John Coller, deceased, and does only what John Coller would have done if living, and in either case the recovery enures only to the benefit of John Coller's estate. This accords with all the elementary writers. In Bouvier's Law Dictionary, (vol. 1, p. 496,) it is said: "The executor represents the testator, and therefore may sue and recover all the claims the testator had at the time of his death, and may be sued for all debts due by him; still his interest in the goods of the deceased is not that absolute, proper and ordinary interest, which every one has in his own proper goods. He is a mere trustee to apply the goods for such purposes as are sanctioned by law." The author quotes. 4 Term R. 645; 9 Coke, 88; 2 Inst. 236; Off. Ex. 192.

Suppose section 399 had incorporated a provision as against a lunatic, with the same provision as to deriving "title im

Coller v. Wenner.

mediately;" assume that afterwards a law like the law of 1845, (see 3 R. S. p. 135, § 11, 5th ed.) had been passed conferring upon the committee the right to sue in his own name, and an action is brought by the committee to recover the amount of a note which the lunatic held as assignee, would it be held that under the statute the maker of the note could testify because the suit was brought in the name of the committee?

Suppose, again, that John Coller, deceased, was the payee of this note, and that Jacob Coller, as executor, had entered upon the discharge of his duties; in fact, had commenced this action, and an administrator de bonis non had been appointed; the quasi or representative title goes to him; in this case could it be claimed that the mouth of the defendant would be opened? The law assumes that where one party is sworn, there is a necessity for the testimony of the other, for the reason of the bias, against which it was intended to give protection. Is not the necessity the same in either case? Under the theory of this statute, is it possible that a party is to be benefited by the death of the other party? And by the providence of God is a party not only to suffer the loss of life, but also of his estate, by being deprived, by his death, of the protection of this statute?

II. The word "title," in this section can only relate to cases where there has been a voluntary transfer of property; voluntarily transferred by one; voluntarily received by the other, with full knowledge of the legal consequences: but in this case, without his knowledge, Jacob Coller is appointed executor; he accepts the trust, and enters upon his duties to collect the personal estate of the deceased; as an incident to the trust, he has a right to institute this action as executor. Had he sued in his own name, he would have been nonsuited. Is not this fact alone an ample illustration of the intention. of the statute in the use of the words "title to the cause of action." This "title" can not mean the legal right of a representative to collect the moneys of another, not his own

Coller v. Wenner.

to execute the will and purpose of another-not his own, even if the mere words of the statute should appear against us. Authorities need not be quoted to sustain the familiar axiom, "A thing within the intention, is as much within the statute as if it were within the letter; and a thing within the letter only, if contrary to the intention, is not within the statute."

III. The case of Prouty v. Eaton and wife, (41 Barb. 409,) it is submitted, has no application to the case before the court. In that case a mortgagee assigned the mortgage to a third person, such third person assigned to the executors of the mortgagee and assignor for a valuable consideration, passing to them an absolute title to the mortgage and the moneys due thereon; the executors, therefore, acquired a perfect title from such assignee. He voluntarily assigning, they voluntarily receiving; their minds meeting, upon the contract and the consideration; such title having no derivative relation to such deceased assignor or his estate; such executors reassign such mortgage to their assignor, the plaintiff in the action. In the language of Judge Johnson, page 415, "Thus the title to the cause of action, which the plaintiff derived immediately from the deceased, he transferred wholly to the executors. He was then wholly divested of all title, the executors thus acquired title immediately from him, mediately or remotely only from the deceased, and so it was with the plaintiff when it was reassigned to him by the executors before the trial." The plaintiff thus had deprived himself of the protection of the statute, and did it voluntarily. How different is the case of the plaintiff in this action; his right to sue, call it by what name you please, is one which, without his volition, may be by any court of competent jurisdiction, transferred to another, and so on to a third, or fourth representive; therefore, as before suggested, if this representative right is a title within the meaning of section 399; if the executor of a deceased person should be removed and such title by act of law transferred to another,