Hale v. Boardman. The rule announced in the last case is broad enough to cover the case at bar, and indeed the case of Farley v. Cleve→ land, above referred to, is nearly parallel to the present, differing from it in only two particulars, and those not, I think, of controlling importance. In the case in 4th Cowen the transaction grew out of an actual purchase by the defendant from a third person, who owed the plaintiff. Here there was not an actual purchase by the defendants from Quimby, in the strict sense of the term, but rather a bailment of property by Quimby to the defendant, and an advance of money by the defendants to Quimby, or to his creditors at his request, in consideration or by means of which and his concurrent promise to pay the plaintiff, the defendants obtained possession of the grain. I think it was well held, by the judge who tried the cause, that this was a sufficient consideration for the defendant's promise, if it was otherwise unobjectionable. The other particular in which the present case differs from Farley v. Cleveland, and from most of the other cases above cited, is that the plaintiff was not a party to the arrangement, nor originally cognizant of it. But I do not think this is a controlling circumstance, if, as in this case, the plaintiff afterwards assented to it, before bringing suit. Indeed bringing suit upon it would be an election on his part to adopt the transaction. Several of the cases hold that it is not essential to the legal validity of the transaction, that the plaintiff's debt against the third person should be at the time extinguished. It doubtless is so when he receives payment from the defendant, and perhaps when he elects to pursue his remedy against him. The controlling consideration seems to be, was there at the time some new transaction-some new element entering into the relations of the parties--something more than mere words, which could operate as a consideration for the defendant's engagement. If so, the transaction was a valid one. Such element is found in the present case, and I am therefore prepared to hold, upon the principle of the adjudged cases, that this is a case where the defendants' en Hale v. Boardman. gagement was obligatory upon them, and authorized a suit in the name of the plaintiff, without an assignment of the cause of action from Quimby to him. If the foregoing views are correct, it was not essential to the maintenance of this action that Quimby should have assigned the cause of action to the plaintiff. He was examined as a witness, and properly so, independent of the assignment, altogether. He was neither a party to the suit, nor the party for whose immediate benefit it was prosecuted. Nor was he examined as assignor, but was just as competent a witness, as to every fact to which he testified, without as with the assignment. The fact that he had made an assignment of the demand, seems to have been given in evidence, although the written assignment itself was excluded. It is supposed that this entitled the defendant to be examined as a witness in his own behalf; especially if the written assignment was erroneously excluded. But I do not see that this is so. Had the assignment even been introduced in evidence, as it was offered to be on the part of the defendant, it would not have helped the defendant's counsel towards examining his client. This trial was before the late amendment allowing parties to be sworn in their own behalf, and the only ground on which the defendant could ask to be sworn, was that the assignor had been sworn against him. But I think, to entitle him to that privilege, the assignment must be one that passes the cause of action-an effective assignment, without which the suit would have to be brought in the name of the assignor. A third person not interested in the cause of action, might have undertaken to assign it, and might have executed a formal instrument to that effect; and such third person might have been called as a witness by the plaintiff. If he was so, I do not consider that the defendant would be thereby entitled to examine himself. And the reason is, that although such third person was the nominal, he was not the real assignor. He did not in fact, any more than Quimby did in this case, assign the real cause of action. In a certain Hale v. Boardman. sense, Quimby and Boardman were the contracting parties, but with reference to the present cause of action, Quimby in fact represented the plaintiff, and the antagonist parties were the plaintiff and defendant. In such a case, I apprehend, the defendant would not come in as a witness, any more than if any other agent of the plaintiff had been examined. So far, therefore, as the right to examine Boardman is concerned, I do not think the defendant would be in any better situation, even if the assignment had been introduced in evidence, and that on the part of the plaintiff. It would have been an act of supererogation, and though it was averred in the complaint as an existing fact, an excess of matter would not vitiate the complaint, or impose the duty of supplying by proof a fact unnecessarily averred in pleading. The defendant, however, contends that he was entitled to evidence of the written paper, for the purpose of shaking or impeaching the evidence of Quimby; and although it is not perceived that, properly explained, it would have that effect to any material extent, yet perhaps it would be proper evidence for the consideration of the jury, as bearing upon the credibility of Quimby, and as tending to show that a demand which by his testimony was shown to be vested in the plaintiff, on the 14th of September, was disposed of by assignment by him as owner thereof, on the 26th of September, were it not for the circumstance that the fact of assignment, and the date of the assignment, appear to have been in the case already. I had some doubt, on my first examination of the case, whether these facts were really proved, and whether the plaintiff's objections, which were sustained by the court, did not go to the entire exclusion of any evidence on that subject; but on a closer inspection of the case, I think they were limited to the contents of the instrument. It is not to be presumed that the contents of the paper (which are not shown) would have disclosed any material fact bearing on Quimby's credibility, beyond what had thus already sufficiently appeared in the oral evidence; and the defendants had there The People v. Burrows. fore the benefit of the very facts which the written instrument would have exposed. On the whole, I cannot see that any error was committed, and am therefore of opinion that the judgment of the court below should be affirmed. [ALBANY GENERAL TERM, May 3, 1858. Wright, Gould and Hogeboom, Justices.] THE PEOPLE, ex rel. John Woodworth vs. LoRenzo BurROWS, comptroller &c. Previous to the adoption of the present constitution of this state, the legislature had the power to reduce the salary of a judge, during his term of office, after the amount of such salary had been fixed by law. A statute having that effect does not violate the constitution of the United States, by impairing the obligation of a contract. Where, upon an application for a mandamus to compel the comptroller to draw his warrant upon the treasurer for the payment of a claim upon the treasury, the comptroller sets up the defense that no appropriation has ever been made by law for the payment of the claim as required by the 8th section of the 7th article of the constitution, this is a conclusive answer to the application. THIS HIS was an appeal from an order of Justice Wright, made at a special term, denying a motion for a peremptory mandamus. The object of the writ was to compel the comptroller to draw his warrant on the treasurer, in favor of the relator, for the sum of $3781, alleged to be due to him from the state for a portion of his salary as a former justice of the supreme court; and also for $8966 as interest upon the former sum to the 1st day of August, 1857. The relator's claim. arose under these circumstances, as set forth in the alternative mandamus. He was appointed a justice of the supreme court on the 28th of March, 1819, during the existence of a law which fixed his salary at the annual sum of $4500, and dur The People v. Burrows. ing the existence of a constitution which fixed his term of office during good behavior or until the age of sixty years. This age he attained on the 12th of November, 1828. He continued to discharge the duties of his office until the 7th day of February, 1823, when he was displaced by a justice of the supreme court appointed under the new judicial system inaugurated by the constitution of 1821, which in effect abolished the former court and terminated the official career of the former incumbents, on the appointment of their successors. Before the adoption of this constitution, however, the legislature, by an act passed on the 1st of April, 1820, reduced the annual salaries of justices of the supreme court to $3500, and by an act passed on the 3d of April, 1821, to $3000. The relator claimed that these attempted reductions of his salary were null and void, under that clause of the constitution of the United States which forbids any state to pass any law impairing the obligation of contracts, and therefore sought to recover in this form of proceeding the difference between the sums paid under the later acts of the legislature, and that in force at the time of his original appointment. The comptroller returned to the writ of alternative mandamus, 1. That the relator had been paid his salary in full, and that nothing was due to him. 2. That no appropriation had ever been made by law for the payment of the relator's claim, as required by the 8th section of the 7th article of the constitution. To this return the relator demurred. The court below sustained the demurrer, and denied the motion for a peremptory mandamus, and from the order entered thereon the relator appealed to the general term. John Woodworth, in person, and J. H. Reynolds, for the relator. Lyman Tremain, attorney general, for the defendants. By the Court, HOGEBOOM, J. The learned and venerable relator has presented an argument of much ingenuity and |