| Conn. | Apr 15, 1873
This action is founded upon two negotiable promissory notes made by the deceased to the plaintiffs, the consideration of the notes being the balance of accounts due the plaintiffs from the deceased individually and from him as member of the firm of Morgan & Williams. The notes were transferred by indorsement to the Home National Bank of Meriden before Mr. Morgan’s death, and continued to belong to the batik a considerable time after his death, precisely how long does not appear. They were duly protested for non-payment, and before this suit was brought had been taken up by the plaintiffs.
The defendant relies for his defence upon the statute (Gen. Statutes, title 20, sec. 44,) which provides in substance that if any creditor shall neglect to exhibit his claim within such time as the court of probate shall limit for that purpose, he shall be forever barred of his demand, &o.
It is conceded that the proper court of probate made the usual decree in such cases, limiting a time for the exhibition of claims against the estate of the deceased, and that the decree was duly published; and for the purposes of this case it must he conceded that the claim of the plaintiffs upon the notes in suit was not presented within the time limited.
It is also conceded that at the time the order of limitation
As to the- notes themselves, it seems very clear that the plaintiffs wore not the owners of them and that they were not in their possession, and clear therefore that they could not present the notes to the administrator for payment. If it be said that the plaintiffs by taking np the notes at tho hank might make them their own and repossess themselves of them, the answer is, that the primary duty of payment pertained to the maker and not to the plaintiffs as indorsers. In respect to the notes themselves the bank, so long as it held them, was the creditor, and not the plaintiffs.
But the defendant strenuously urges that taking of notes for a debt is by Connecticut law no payment or merger of the original indebtedness, and that therefore the plaintiffs continued to he creditors in respect to the original indebtedness, after the notes were made, and also after they had been transferred to the hank. But though it ho true, as the defendant s'ays, that giving notes for a debt is no payment of the debt, yet notes thus given, while they remain outstanding, are the true representatives of the debt, and if such notes, being negotiable, are transferred, tho legal interest in them and in the debt whiqli they represent is transferred. During the period the bank held these notes tho debt represented by the notes did not belong to the plaintiffs. They were not entitled to receive it. They could not discharge it. The estate was not their debtor, and they were not its creditor. They wero not hound to present to the administrator a claim the title to which was not in them, and over which they had no right to exercise any control.
We think a cause of action accrued to the plaintiffs upon these notes when they as indorsers were compelled to pay , them, and that they are entitled to the privilege of exhibiting
The judgment of the City Court upon the facts found by that court was therefore manifestly erroneous, and the Superior Court is so advised.
There is an obvious informality in the manner in which the case came to the Superior Court, but no exception was taken on the ground of that informality. We therefore treat it as waived, thinking, as we do, that justice clearly requires that the judgment complained of should not stand.
In this opinion the other judges concurred.