Van Wezel v. Wyckoff

The Assistant Vice-Chancellor.

The motion to strike out the testimony of Mr. Muloch must be denied. At the time he was examined, he was presumptively relieved from his liability for the costs. Security for costs had been filed, and the obligor in the bond had justified. It is true that there were nineteen days remaining in which the defendants might except to the security, but the preliminary justification shows in the absence of rebutting evidence, that the exception would have been fruitless.

In the analogous case of special bail in the courts of law, it is the practice to allow other bail to be substituted on the trial, so as to enable the defendants to use the bail originally put, in as witnesses ; and the possibility that on an exception, the new bail may be found insufficient, does not render such witnesses incompetent. (Leggett v. Boyd, 3 Wend. 376.)

Upon the merits of the case, I think the proof of the note and of the complainant’s title to it, is sufficient. The authority of J. C. Buchanan to make the indorsement, is proved by his acting as agent, independent of the testimony as to the written power. But if this were otherwise, the objection to the parol evidence was not made in season.

The statute of limitations is not a valid defence. Administration on the estate of the defendant’s ancestor, was granted in October, 1834. The complainant could not sue the heirs, until three years after that time, and during this period, the statute did not run in favor of the heirs. (2 R. S. 109, § 53; Butts v. Genung, 5 Paige, 256 ; Leonard v. Morris, 9 ibid. 90.)

I do not find any proof in support of the objection that this debt was not presented to the administrators upon their advertising for claims. If this were proved, it would avail nothing, as the administrators did not have assets enough to pay all the other debts.

As to the suit of Jacques Smith against these heirs, in behalf of all the creditors, the decrees were made in 1842, and probably the suit had not been long pending. At all events, there is no pretence but that this suit was commenced first. It does not appear that the complainant knew of Smith’s suit, and if the defendants desired to save expense, they should have moved the *531court to compel him to come in and prove his demand under the decree in that suit.

The complainant is entitled to a decree against each of the heirs, for one-fourth part of his debt and interest and costs of suit.

The proportion payable by the infant, will be paid by the clerk out of the fund's of the infant in his hands. And the costs of the guardian ad litem must be paid out of the same fund.

Decree accordingly,