Goodnow v. Hill

125 Mass. 587 | Mass. | 1878

Gray, C. J.

The proceedings and proof in bankruptcy against the husband might bar the action against him. Bennett v. Goldthwait, 109 Mass. 494. Valpey v. Rea, 124 Mass. 99. But the plaintiff, upon discontinuing against him, was entitled to prosecute the action to judgment against the other defendant. Gen. Sts. c. 133, § 5; c. 129, § 41; c. 156, § 2. Goodnow v. Smith, 18 Pick. 414. Hathaway v. Crocker, 7 Met. 262, 268.

The evidence introduced to show the conviction of the husband, in order to impeach his credibility as a witness, having been excluded by the court as soon as it appeared to fall short of proving the conviction, and the jury having been strictly cautioned not to regard it, its introduction is no cause of exception. Hawes v. Gustin, 2 Allen, 402.

The judge having instructed the jury that the giving and acceptance of the subsequent notes were primd facie evidence of payment of the note in suit, and having submitted the question of payment to the jury upon all the evidence, there is no just ground of exception upon that question. If the subsequent notes were taken as collateral security, it does not appear, and is not to be presumed, that they were sold before the maturity of the principal debt, in violation of the Gen. Sts. c. 161, § 65. Norcross v. Pease, 5 Allen, 331.

As to the liability of the wife upon the note in suit, the instructions given to the jury were quite favorable enough to her, upon the questions presented at the trial. Major v. Holmes, 124 Mass. 108. Kenworthy v. Sawyer, ante, 28. The point, suggested on the brief of her counsel, that, if she was a surety for her husband, the proof, against his estate in bankruptcy, of the note in suit operated as a surrender of the notes held as collateral security, and so released her from liability, does not appear to have been made in the court below, and therefore is not open in this court. Exceptions overruled.