The opinion of the court was delivered by
Coulter, J.
Tallman, after he was released by Beckett from all liability to him, was a competent witness. Although the point is not necessarily involved here, he would seem to have been competent without the release, because, if his testimony established that he was only a trustee of the bill for Beckett’s use, and transferred it to Weaver, merely for the purpose of collection, he would be liable to Weaver for the antecedent debt to which Weaver alleged that he applied it. He was, therefore, equally liable to both parties. But at all events the release made him competent. That release did not impair Beckett’s right of action against Weaver for money had and received, as the acceptor had paid the money to him which ex cequo et bono belonged to Beckett. It is true that Beckett might have proceeded against Tallman, for wrongfully transferring the bill. But it would have been by a different action. Beckett had two remedies. He elected to proceed-against Weaver. This action was not founded on the bill, but rested wholly on the reception by Weaver of money which belonged to Beckett, and which he had agreed to collect for Beckett, and which Beckett was entitled to receive.
The release of Tallman could not make the money, which justly was the property of Beckett, become the property of Weaver. The release created no new or additional responsibility on Weaver. If Tallman’s testimony was true, and that the jury have found, the plaintiff was entitled to recover.
Judgment affirmed.