The case finds that the note, on which the action is brought, was received by the plaintiff from the bank, after it was overdue and dishonored. But the plaintiff notwithstanding contended that inasmuch as the makers and the payees are the same persons, the defendants were not entitled to make the same defence to this action as they could legally have made against the bank. This objection is of no validity. It has been the usage of the commercial world, for more than a century, to make negotiable paper in this form. The case of Starke v. Cheesman, Carth. 509, was upon a bill of exchange drawn by the defendant upon himself, in 1692 ; and the declaration set forth that it was according to the custom of merchants. See also Chit, on Bills, (2d ed.) 26. Bayley on Bills, (1st Amer. ed.) 5.
The verdict has affirmed, either that the plaintiff obtained the *63note from the bank by fraud or mistake, and so, that he is not the lawful holder ; or that the defendants transferred 15 shares in the Protection Insurance Company to the bank, as collateral security for the note, and that the bank suffered the same to be attached on mesne process and levied on execution by a creditor against the bank — which shares were, at the time of the attach ment, worth enough to pay the amount then due on the note. And in either of those events, if the bank were plaintiffs, they could not recover against the defendants. The charge to the jury, in this respect, was correct. And inasmuch as the plaintiff took the note after it was overdue and dishonored, his right to recover is to be considered just as the bank’s right would be, if the bank were plaintiff. The charge, in that respect, was right.
But it is contended for the plaintiff, that evidence was admitted, which should have been rejected : To wit, that a copy of the execution in favor of Lemuel Brackett against the bank was admitted as evidence, which copy was certified by C. A. Parker, clerk, and also by Artemas Ward, Esq., chief justice of the court of common pleas, without the production of the judgment upon which the execution issued.
If this were a suit between the bank and the purchaser of the shares in the insurance company, it might be competent for the bank to insist upon strict proof by the purchaser who claimed title to the shares. But so far as concerns the defendants, it is of no consequence how the bank sold the shares, or suffered them to be taken and sold. Whether the sale were legal or not, there has been a sale de facto. The bank has had the benefit of the property, and the defendants have been deprived of it. It would be no answer to the defendants’ claim for the bank to say, “it is true we have suffered your property, placed in our keeping as collateral security, to be taken and sold, but the proceedings were irregular, and we might have avoided the sale, if we had pleased.” The defendants might well reply, “ you did not please to avoid the sale ; you have thus taken our property to pay your execution creditor.” The execution and return were competent evidence between these parties, without a copv *64of the judgment, which might be necessary as a part of the title, if the purchaser of the shares were contesting with the bank. Bul. N. P. 234. 1 Stark. Ev. 282.
It was contended for the plaintiff, that the court erred in ruling that the value of the stock, when it was attached, should be the measure of the defendants’ allowance for the same in this action. But we do not think so. The shares stood in the name of the bank. The attachment and subsequent proceedings of Brackett against the bank—submitted to, as they were — should be considered as an appropriation of the defendants’ property without their assent, and "without any notice to them. The bank, in thus misappropriating the collateral security, must ae considered as a wrongdoer from the time when it suffered the «hares to be so incumbered and attached.
It was also contended at the trial, that certain interrogatories to a witness were leading, and that the answers should be of course rejected. But it was too late to make that objection, at the trial. If it had been made at the proper time, the defendants might have varied their questions. Potter v. Leeds, 1 Pick. 313. Allen v. Babcock, 15 Pick. 56.
The value of the shares in the insurance company, at the time when they were attached, was proved by Wheeler, secretary of the company. But the time when the attachment was made was proved by the copy of the original writ of Brackett against the bank, which was left at the office of the insurance company by the attaching officer, and produced by said Wheeler. And it was objected at the trial, that such copy was not competent evidence. And it is true that the best evidence would have been a copy of the original writ and return, certified by the clerk of the court to which it was returned.
This is an objection of mere form. The defendants now produce a copy of the writ and return, certified by the clerk, which agrees with that which was produced by Wheeler at the trial. If a new trial should be ordered, we should not open the whole cause, but, exercising a sound judicial discretion, should imit the inquiry to the time when the attachment was made. For if there was no mistake in regard to that, there should be *65a judgment for the defendants. But we see that the time of the attachment would, upon a new' trial, he fixed, by the evidence which is properly authenticated, to be the same which was proved at the trial by the officer’s copy produced by Wheeler. We therefore think that the cause ought not to be sent to a new trial on account of this objection.
Upon consideration of the whole matter, we all think that judgment should be rendered for the defendants, according tc the verdict.