Breese, J.
The only real questions in this case, are, was the note produced by defendant by way of set-off'due and payable to him, and was there sufficient legal evidence to prove it.
Much pleading was had, and many instructions were asked on both sides, which we do not consider necessary to examine specially. It is only necessary to present the two points in controversy, and determine from them where the justice of the case is, and where the real merits lie.
The defendant, Nathan Merritt, it appears, is the brother of the plaintiff, and having purchased in October, 1841, from him his interest in his father’s, Elisha Merritt’s, estate, gave this .note therefor.
Previous thereto, in 1836, the plaintiff had executed his note ‘•to another brother, Daniel Merritt, for nine hundred and sixty .seven dollars, at seven per cent, per annum, which, as the proof shows, had come into the possession of Elisha Merritt, and which was the note sought to be set off.
The bar of the statute of limitations was attempted to be interposed to this note, and also payment to Daniel Merritt, and payment to Elisha Merritt, while it was in his hands.
The defendant, in his plea setting up this note, also averred a ' promise by the plaintiff, to pay it to Daniel within sixteen years next before the commencement of this suit.
The note appears to have come into the possession of the defendant, originally, as executor of his father, Elisha Merritt, who died in Putnam county, New York, in August, 1841, leaving a will with this clause in it, after devising his property to his séven sons, of whom the plaintiff was one, “ that if, at the time of his death, he should hold obligations against any of said seven sons which would amount to his ' dowry,’ his executors shall not collect such obligations, but shall give them up and take such son’s receipt for his ‘ dowry;’ that if such obligation or obligations should exceed the amount of such son’s dowry, then his executors shall only collect so much of such excess as may be necessary to pay the legatees.”
The defendant purchased out the interest of all the sons in this estate for about nine hundred dollars a share, for one of which the plaintiff’s note sued on was given, and in 1853, Daniel assigned the note in due form to defendant, without recourse.
This note of plaintiff’s was passed by Daniel to their father, Elisha Merritt, to pay a debt due from Daniel to his father, at the request of the plaintiff, he promising to pay it whenever his father should demand it. . This conversation was in May, 1841. The delivery of the note to the father was in July, 1841. The credit indorsed on it of $233.83 was before the delivery to the father.
There was an arbitration of matters of difference between the plaintiff and Daniel Merritt, in 1844, at which time Daniel did not hold the note, nor had he any interest in it, but which plaintiff insists in his second replication to defendant’s third plea, was canceled by the award made April 17,1844.
This is a very concise statement of the leading facts, proved by Daniel Merritt, the payee of the note; he was the only or principal witness, and if he was improperly admitted to testify, the judgment must be reversed ; otherwise, affirmed.
Was Daniel Merritt a competent witness ?
A witness may be competent for one purpose, while he would not be for all purposes. An indorser is not excluded merely because his name is on the paper, but because, being there, he is'responsible over, and has therefore an interest, unless protected by the indorsement. Here the witness indorsed without recourse.
In Bradley v. Morris, 3 Scam. R. 182, this court say, “ an indorser of a negotiable instrument is invariably allowed to testify against the recovery of the holder, by proving that it has been discharged by payment or otherwise. In this case, however, there was no objection to the testimony of Warren, the indorser, even if it had gone to the foundation of the note, because he had indorsed the note without recourse. His testimony, therefore, could not be objected to upon the ground of policy, because his indorsement gave no additional currency or security to the note, nor was it (he) liable to objection upon the score of interest. His indorsement being without recourse, he could neither gain nor lose by the event of the suit, nor indeed incur any liability in any event.”
On the authority of this case, and perceiving no possible objection on the ground of policy, we think Daniel Merritt was a competent witness to prove the subsequent promise by Stephen, to take the note out of the operation of the statute of limitations. He does not avoid any legal liability imposed on him by so testifying, as to enable the defendant to recover the note of the plaintiff, for if he assigned to defendant a note on the plaintiff which had been paid, and the defendant should recover it of the plaintiff, the witness would be answerable in an action by the plaintiff, Stephen, against him, for the consequences. The liability of Daniel would be shifted merely, and therefore, as a witness, he was indifferent.
He was also competent to prove that he had parted with the note before the arbitration, the time when and how, and for what purpose, his special indorsement protecting him from all liability over, except such as may be traceable to his own fraud.
The facts then appear to have been as stated, and the position of the parties in the fall of 1841, after the death of Elisha Merritt, was this: The note pleaded as a set-off, was then the property of Elisha Merritt’s estate, having been paid over and delivered to him, in his lifetime, at the request of the maker, in July, 1841. The defendant is executor of Elisha, and as such, obtains the note. He purchases out the interests of all the owners of it— the devisees of Elisha Merritt—the plaintiff included, settles up the estate and pays all the debts and claims, and insists he has become entitled to the whole of this note in his own right, and by the assignment by Daniel Merritt, in 1853, has the legal title and can set it off.
The plaintiff resists this, and replies that the note was left by his father; that by his will the executor was enjoined from collecting it, or so much of it as may be equal to his interest in his father’s estate, and therefore he is not bound to pay.
The rejoinder by defendant is conclusive. You sold your interest in the estate for the very note you are now suing upon. I own that interest, or its representative, the note you gave to Daniel, and he delivered it to the testator. If I have to pay the note to you, you must pay your note to me, or the difference between them.
Possessing himself, as the defendant did, of this note honestly, and becoming its sole owner by his purchase of all the devisees, he was in equity at least, the true owner, and being so, it was right and proper that Daniel should convey to him the legal title by his writing of indorsement in 1853. Really the assignment was not in issue, there being no denial of the fact, verified by affidavit.
The plaintiff, as is very manifest, attempts to get double the advantage from his father’s estate that the other devisees derived from it.
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Breese, J.
The only real questions in this case, are, was the note produced by defendant by way of set-off'due and payable to him, and was there sufficient legal evidence to prove it.
Much pleading was had, and many instructions were asked on both sides, which we do not consider necessary to examine specially. It is only necessary to present the two points in controversy, and determine from them where the justice of the case is, and where the real merits lie.
The defendant, Nathan Merritt, it appears, is the brother of the plaintiff, and having purchased in October, 1841, from him his interest in his father’s, Elisha Merritt’s, estate, gave this .note therefor.
Previous thereto, in 1836, the plaintiff had executed his note ‘•to another brother, Daniel Merritt, for nine hundred and sixty .seven dollars, at seven per cent, per annum, which, as the proof shows, had come into the possession of Elisha Merritt, and which was the note sought to be set off.
The bar of the statute of limitations was attempted to be interposed to this note, and also payment to Daniel Merritt, and payment to Elisha Merritt, while it was in his hands.
The defendant, in his plea setting up this note, also averred a ' promise by the plaintiff, to pay it to Daniel within sixteen years next before the commencement of this suit.
The note appears to have come into the possession of the defendant, originally, as executor of his father, Elisha Merritt, who died in Putnam county, New York, in August, 1841, leaving a will with this clause in it, after devising his property to his séven sons, of whom the plaintiff was one, “ that if, at the time of his death, he should hold obligations against any of said seven sons which would amount to his ' dowry,’ his executors shall not collect such obligations, but shall give them up and take such son’s receipt for his ‘ dowry;’ that if such obligation or obligations should exceed the amount of such son’s dowry, then his executors shall only collect so much of such excess as may be necessary to pay the legatees.”
The defendant purchased out the interest of all the sons in this estate for about nine hundred dollars a share, for one of which the plaintiff’s note sued on was given, and in 1853, Daniel assigned the note in due form to defendant, without recourse.
This note of plaintiff’s was passed by Daniel to their father, Elisha Merritt, to pay a debt due from Daniel to his father, at the request of the plaintiff, he promising to pay it whenever his father should demand it. . This conversation was in May, 1841. The delivery of the note to the father was in July, 1841. The credit indorsed on it of $233.83 was before the delivery to the father.
There was an arbitration of matters of difference between the plaintiff and Daniel Merritt, in 1844, at which time Daniel did not hold the note, nor had he any interest in it, but which plaintiff insists in his second replication to defendant’s third plea, was canceled by the award made April 17,1844.
This is a very concise statement of the leading facts, proved by Daniel Merritt, the payee of the note; he was the only or principal witness, and if he was improperly admitted to testify, the judgment must be reversed ; otherwise, affirmed.
Was Daniel Merritt a competent witness ?
A witness may be competent for one purpose, while he would not be for all purposes. An indorser is not excluded merely because his name is on the paper, but because, being there, he is'responsible over, and has therefore an interest, unless protected by the indorsement. Here the witness indorsed without recourse.
In Bradley v. Morris, 3 Scam. R. 182, this court say, “ an indorser of a negotiable instrument is invariably allowed to testify against the recovery of the holder, by proving that it has been discharged by payment or otherwise. In this case, however, there was no objection to the testimony of Warren, the indorser, even if it had gone to the foundation of the note, because he had indorsed the note without recourse. His testimony, therefore, could not be objected to upon the ground of policy, because his indorsement gave no additional currency or security to the note, nor was it (he) liable to objection upon the score of interest. His indorsement being without recourse, he could neither gain nor lose by the event of the suit, nor indeed incur any liability in any event.”
On the authority of this case, and perceiving no possible objection on the ground of policy, we think Daniel Merritt was a competent witness to prove the subsequent promise by Stephen, to take the note out of the operation of the statute of limitations. He does not avoid any legal liability imposed on him by so testifying, as to enable the defendant to recover the note of the plaintiff, for if he assigned to defendant a note on the plaintiff which had been paid, and the defendant should recover it of the plaintiff, the witness would be answerable in an action by the plaintiff, Stephen, against him, for the consequences. The liability of Daniel would be shifted merely, and therefore, as a witness, he was indifferent.
He was also competent to prove that he had parted with the note before the arbitration, the time when and how, and for what purpose, his special indorsement protecting him from all liability over, except such as may be traceable to his own fraud.
The facts then appear to have been as stated, and the position of the parties in the fall of 1841, after the death of Elisha Merritt, was this: The note pleaded as a set-off, was then the property of Elisha Merritt’s estate, having been paid over and delivered to him, in his lifetime, at the request of the maker, in July, 1841. The defendant is executor of Elisha, and as such, obtains the note. He purchases out the interests of all the owners of it— the devisees of Elisha Merritt—the plaintiff included, settles up the estate and pays all the debts and claims, and insists he has become entitled to the whole of this note in his own right, and by the assignment by Daniel Merritt, in 1853, has the legal title and can set it off.
The plaintiff resists this, and replies that the note was left by his father; that by his will the executor was enjoined from collecting it, or so much of it as may be equal to his interest in his father’s estate, and therefore he is not bound to pay.
The rejoinder by defendant is conclusive. You sold your interest in the estate for the very note you are now suing upon. I own that interest, or its representative, the note you gave to Daniel, and he delivered it to the testator. If I have to pay the note to you, you must pay your note to me, or the difference between them.
Possessing himself, as the defendant did, of this note honestly, and becoming its sole owner by his purchase of all the devisees, he was in equity at least, the true owner, and being so, it was right and proper that Daniel should convey to him the legal title by his writing of indorsement in 1853. Really the assignment was not in issue, there being no denial of the fact, verified by affidavit.
The plaintiff, as is very manifest, attempts to get double the advantage from his father’s estate that the other devisees derived from it. First, by claiming his note under the will, then by compelling the defendant to pay his note which was given for his interest under the will, thus making his share of the estate about seventeen hundred dollars, against about $>875 received by the other devisees, as averaged.
It was properly left to the jury to say, from the facts, if this could be so.
There is no pretense that the note was ever paid to Daniel, or to his father—it would have been taken up had it been paid.
The case abundantly shows that the two notes were left unadjusted by the brothers, as valid, mutual claims. By the will the plaintiff might have taken the note on his share of the estate, before he sold to the defendant, but he did not do so, and the jury was perfectly right in refusing to give him, not only the full value of his interest in the estate, which was represented by the note he sued on, but absolve him also from paying his note, which was a part of the estate which he had sold, and which the defendant honestly purchased and owned. One was properly set off against the other; indeed, the plaintiff admitted at the arbitration in Peru, in 1844, that there was about one hundred and fifty dollars due on this note,' and for that only, with the accrued interest, was the judgment rendered for the defendant.
We see no error in the court refusing to go into the inquiry in regard to the difficulties between Daniel, the witness, and the plaintiff, growing out of law suits. It was too remote, and would open a field of collateral matter too wide for any purpose of real justice.
The direct question as to the state of feeling of the witness, friendly or hostile, is the only proper one. How that might be caused, is wholly unimportant, and would lead to distressing lengths.
The objection, that one of the witnesses was allowed to testify that he commenced a suit on the note set off, in 1853, has no force in it. The fact of the commencement of a suit is like any other independent fact, and can be proved by parol—not the mode and manner, but the 'naked fact. It was collateral only, and needed no record or files of court to prove it. It had nothing special to do with the case, further than this, that commencing a suit on the note afforded ground for the inference that the defendant claimed the note at that time as one which the plaintiff ought to pay.
It was also objected, that Mr. Cotton could not prove by parol what the law of New York was in regard to the delivery of a promissory note.
This very remotely affected the question at bar, as the defendant claimed the note under a written assignment from the payee, which was not denied by plea verified by affidavit.
The rule may be, that the written or statute law of a State cannot be proved by parol, but the common law, for the most part made up of customs, may be proved by parol. It will be observed, Mr. Cotton did not say the law in New York, as he stated it, was the statute law. As it is so unimportant in this case, we will intend he spoke only of the common law there, or custom which existed among that community in respect to such paper.
The objection that plaintiff was not permitted to prove the mental infirmity of Daniel—impaired memory by sickness—has nothing in it.
The witness asked on this point was not shown to be capable of speaking to it, so that the jury could fully understand it. What was the character of his disease, and how necessarily did it affect his memory, and by what standard is 'the mental or bodily vigor of any man to be tested. Not by the opinions of those as imbecile, may be, as he. His own manner of testifying is the best test of mental power, and is never overlooked or disregarded by a jury. To go into these collateral inquiries would prolong a trial so unreasonably, that unless a very powerful reason exists for it, they should not be encouraged or indulged.
We do not deem it at all necessary to examine minutely the several instructions. The record does not show all that were given for plaintiff, so that we cannot know what bearing they may have had on the case, or the necessity for the instructions which were refused. Their substance and point may have been fully contained in those not now on the record. The tenth was properly modified by the court, and as modified, presents a proper view of the case. The eleventh, twelfth and thirteenth were properly refused.
As to.the instructions on behalf of defendant, we may here, with great propriety, take occasion to remark, that a practice seems to be growing up to draw out instructions to a very great length, and injecting into them an argument of the case. This is a bad practice, and should not be encouraged by the courts. Instructions should be concise, and briefly present the point of law alone on which the party relies. These instructions of defendant are liable to this objection, but they present the law of the case fairly and fully, and from the evidence and the law, the jury was bound to find as they did. They could not believe it just, that one who had sold an estate should have the money for it and the estate besides.
The judgment is affirmed.
Judgment affirmed.