| Mass. | Oct 15, 1804
The Court consulted a short time on the bench ; when Sedgwick, J., stated to the jury that the Court, upon the best consideration they could give the case, were inclined to the opinion that there was no existing debt due from Asa Thompson, the father, to the demandant, Fales, at the time the first deed was executed; that entering into the rule of reference, as surety for Nehemiah Thompson, did not create a debt in Asa, but that the debt, as it respected him, must be considered as arising and first becoming due upon the rendition of the judgment in Sept. 1800. As this was subsequent to the deed of Asa Thompson to Asa Thompson, Jun., the jury ought to find a verdict for the tenant.
The jury found a verdict accordingly.
Note. — la it certain that the assignee was not entitled in this case to come in and prosecute the action ? See and compare the 11th and 13th sections of the law of the United States for establishing a uniform system of bankruptcy. See also 2 H. B. Rep. 444, Smith & Al. Ass. vs. Coffin & Ux. Quære, whether it appeared, in any part of the record produced in this case, that Asa Thompson was the surety of Nehemiah Thompson. If, as it is believed, it did not so appear, would it be competent for the tenant to prove the fact by matter dehors ?
Since the trial, the reporter has been informed, from the best authority, that Thacher, J., did not concur with the rest of the Court in the opinion which Sedgwick, J., stated as that to which the Court inclined.