People ex rel. Son agt. Miner. We are therefore of the opinion that, in cases where a mortgage is made to executors, as such, and the money is payable to them and their survivors or successors, and not to their personal representatives, that one of such execu tors may receive payment and satisfy the mortgage on the record, as well as all, and that the register should, in such a case, file and enter the satisfaction. The judgment at special term should be reversed, and judgment ordered for the appellants; and as the respondent has no defence in his return, except the one passed upon on this appeal, we direct a peremptory writ of mandamus to issue. No costs are given to either party. LEONARD, J. Where a bond and mortgage are made to certain persons as executors, and the money due is also payable to them, and the survivors or survivor, there can be no pretence that they hold in a personal capacity. They are estopped from making such a claim. It is also suggested that executors taking a mortgage payable to themselves as executors, and to their survivors, &c., for part of the consideration money of premises sold by them belonging to the testator, may hold as trustees of an express trust. The question arises whether the register, before satisfying the record, or any other party transacting business with the executors in respect to such a mortgage, must ascertain whether it is held by the mortgagees in one capacity or the other. It cannot be doubted that the legal title to such bond and mortgage is in the mortgagees as executors. They would be so considered in all proceedings for foreclosure or collection. The rule insisted on by the register requires the relator to prove a negative, viz., that the mortgagees are not trustees of an express trust. Perhaps it may be more properly stated that he requires the relator to produce and file a certified copy of the will under which the authority is claimed for one executor to acknowledge satisfaction of Wheeler agt. Wright. such mortgage. The position assumed by the register denies to the mortgagees their right to occupy that relation to the bond and mortgage which the legal effect of these instruments permits or requires. He denies to the mortgagees the character of executors simply, without further proof. In my opinion the register must accord to all parties the position and rights which attach to them, according to the legal effect of the representative character which they have assumed in the instruments recorded in his office. He has no more right to insist upon having executors, who are mortgagees, under such a mortgage as the present one, produce a copy of the will under which they act, than he would have to require them to produce evidence that they had not been removed. I concur in the decision pronounced by the presiding justice. SUPREME COURT. JOHN R. WHEELER, receiver agt. NEHEMIAH WRIGHT and others. Where an action is brought by a receiver, appointed in supplementary proceedings, and in pursuance of the order appointing him, to set aside a prior conveyance of real estate made by the judgment debtor, the judgment creditor not made a party is not liable for the costs of the action, where the defendants succeed. Steuben Special Term, May, 1862. MOTION to compel Eben Wheeler to pay the costs of the action to the defendants. Eben Wheeler was the judgment creditor of the defendant Nehemiah Wright. In proceedings upon the judgment, supplementary to execution, the plaintiff was appointed a receiver. In the order appointing the receiver, he was directed to bring an action to set aside a conveyance of certain real estate which the judg ment debtor had previously made to his son, under circum Wheeler agt. Wright. stances somewhat suspicious, as disclosed by the debtor on his examination under the judge's order. The action was brought in pursuance of the order of the court, by the plaintiff, without consulting the judgment creditor, who neither employed the attorney nor did any other act by way of bringing or carrying on the action. The defendants succeeded in the action, and are unable to collect their costs from the plaintiff. J. B. FINCH, for motion. JOHNSON, Justice. If this motion can be granted it must be upon the ground that Eben Wheeler, the judgment creditor, was beneficially interested in the recovery in the action. It must be conceded that had the plaintiff succeeded in the action, the recovery would have been for the exclusive benefit of the judgment creditor. But this is not enough to charge a person not a party, with the costs of the action. The statute (2 R. S., 619, § 44, 5th ed., vol. 3, 909, § 10) relates only to actions "brought in the name of another by an assignee of any right of action, or by any person beneficially interested in the recovery in such action." No matter to what extent the person sought to be charged, who is not a party, may be interested in the recovery, if in truth he is not chargeable with having brought the action, he is not chargeable with the costs. (Giles agt. Halbert, 2 Kern., 32; Whitney agt. Cooper, 1 Hill, 629; Miller agt. Adsit, 18 Wend., 672.) This is the only test, as shown by all these cases. Indeed the language of the statute is too plain and explicit to admit of any other construction. This of course has no reference to the class of cases provided for by section 321 of the Code, where the cause of action is assigned after the action is commenced. The motion must therefore be denied, with costs. Fellows agt. Hyring. SUPREME COURT. ABIRAM FELLOWs agt. SAMUEL VAN HYRING and others. Where parties knowingly advance means to aid another to compromise a felony, and are present and assist in the negotiation, the mortgage taken by them for such consideration is void. Where the assignee under such mortgage takes the property, without any other indemnity from the mortgagees than the assignment, the latter are not liable for such taking. A certified copy of a chattel mortgage is not admissible in evidence until the existence of the original is proved. Clinton General Term, September, 1857. THIS cause was tried in justice's court, in Saratoga county, February 20, 1857. The following facts appeared on the trial: James Earl owned the horse in question, worth about $80, with other property, which was mortgaged to the plaintiff June 10, 1856. September 15, 1856, Earl, and his son J. Emet Earl, gave a chattel mortgage upon the same property, to the defendants, to pay $81.63 for the amount of their note given to one Patrick McCarty. The last mortgage was filed first, and thus obtained priority over the mortgage of Fellows. The last mortgage was given under the following circumstances: A trial had been had in justice's court between said James Earl and Patrick McCarty, upon which trial the defendants had been witnesses for the said McCarty, and Emet Earl had been a witness for his father, and the latter had recovered a judgment of about $50. Shortly after, McCarty made a complaint for perjury against Emet Earl, before a justice of the peace at Ballston, and obtained a warrant, upon which the latter was arrested a few days after, about midnight, at his house, and taken to the justice's residence, about twelve miles distant. Emet and his father were both poor and ignorant, and when the father came before the justice the next day, he proposed to settle Fellows agt. Hyring. the matter. A long negotiation took place between Mc Carty, his attorney and the defendants and the Earls, which lasted nearly all day, when it was finally agreed that Earl should pay back the amount of the judgment, and all costs and expenses the county had sustained, and the criminal charge be discontinued. The Earls had no money, and McCarty would not take their note or chattel mortgage, and then it was agreed that the defendants should give their note to McCarty, and the Earls gave this mortgage to secure the amount of said note. The criminal matter was not further prosecuted, and all parties went home. When the defendants' mortgage became due, the Earls refused to pay it, and were advised it was void. The defendants then sent for one Clute, an attorney, who was not pecuniarily responsible, and assigned the chattel mortgage to him, for which they took his note at six months. Clute then, about January 29, 1857, took away the property covered by the chattel mortgage, including the horse in question, and alleged that he was acting by the authority of the defendants. The Earls assigned the cause of action to the plaintiff, January 30, 1857, in consideration of his mortgage, and he brought a special action on the case against the defendants for the value of the horse. On the trial the plaintiff called said Clute as a witness, who denied that he acted for the defendants, but claimed he acted on his own behalf. The plaintiff offered in evidence a copy of the chattel mortgage given by Earl to Fellows, from the office of the town clerk where the said Earl resided, duly certified by said clerk. The original mortgage was on file, but not produced, or its execution proved. This was objected to by the defendants, on the ground that the original mortgage should be produced and its execution proved. The objections were overruled, and the certified copy read in evidence. The jury rendered a verdict for the plaintiff for $78.33, upon |