¶1The testimony referred to in the first assignment was properly rejected. If we concede that the facts offered to be proved were competent evidence, the offer was to prove them by an incompetent witness. Ira Long, one of the parties to the note, was dead; the witness was the maker of the note, and a party to the record. The lips of Long were sealed by death; the lips of the witness were sealed by the law.
¶2The second and third assignments allege error in the charge of the court. The extracts given do not disclose any. There was nothing in the case to show that the defendant acted with malice, or without probable cause. The note of Mell came into defendant’s hands as executor of Long. It was an asset of the estate, with nothing to show payment upon its face. It was his duty to attempt to collect it, in the absence of actual knowledge on his part that it had been paid. Had he neglected this duty, he would have been liable to a surcharge in his accounts, which, if not successful, would have subjected him to litigation and expense. He was not bound to incur this peril. The only sure way to avoid it was to proceed to collect the note, when, if Mell had paid it, he could take defence and show it.
¶3*160As the plaintiff had not established a case to go to the jury, it was not error in the court below to direct a verdict for the defendant.
¶4Judgment affirmed.