85 Wis. 264 | Wis. | 1893
It is claimed that the appeal should bo dismissed because it was not taken ‘‘ within thirty days from the entry of the” order, as required by the statute. Sec. 1699, E. S. It is true that section provides, in effect, that such appeal shall not be taken after the expiration of such thirty days. Here the order is dated October 15,1892, and was entered October 21, 1892, and it is therein stated to be as and for September 19, 1892. The fact is that the order so entered was a modification of a prior order of such former date. This appeal was perfected November 12, 1892, which was within thirty days from the entry of the order appealed from, and hence was within the time prescribed bv the statute.
At the time the bank assigned to the defendant it was indebted to the plaintiffs, as mentioned in the foregoing statement, and such indebtedness was then due and payable. At the same time the plaintiffs were indebted to the bank in a large amount,— a part of which had become due and payable before the making of such assignment, and the balance thereof did not become due and payable until after the making of such assignment. The trial court allowed the plaintiffs to set off so much of their indebtedness as became due before the assignment, but refused to allow such setoff as to any portion of their indebtedness which became due after the making of the assignment. The correctness of such ruling is the important question presented for determination.
The case at bar differs widely from that class of cases, and turns upon a different principle. Here it was not the indebtedness of the insolvent debtor that was not due when the assignment was made, but a portion of the indebtedness from the plaintiffs to the assignee of the insolvent debtor. An assignee of such insolvent debtor has no authority to waive the time of credit secured for the sole benefit of his assignor, and pay a debt not due, with credits or the avails of credits which are due to the assignor at the time of making the assignment, for to do so would tend to prejudice the creditors of the insolvent’s estate; but a debtor to such estate, whose debt was not due at the time of the making of such assignment, has the authority to waive the-time of credit which was secured for his own benefit, and pay the same at once in money or by way of setoff of the amount due him from such estate. This rule is firmly settled in other states, and has in effect been sanctioned by this court. Lindsay v. Jackson, 2 Paige, 581; Smith v. Felton, 43 N. Y. 419; Smith v. Fox, 48 N. Y. 674; Rothschild v. Mack, 115 N. Y. 1; Richards v. La Tourette, 119 N. Y. 54; McCagg v. Woodman, 28 Ill. 84. The case last cited is very
By the Court.-— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.