1 Brock. 244 | U.S. Circuit Court for the District of Virginia | 1812
On the 7th of October, 1776, Peter Field Trent, Alexander Trent, John Harris, John Scott, and William Gay, executed a bond to T. M. Randolph, for six hundred pounds, payable on the 25th of April, 1783. Peter Field Trent was the principal, and the other obligors, his sureties. On the 1st of May, 1789, T. M. Randolph assigned this bond to W. Jones. From 1763 to 1788, there was a running account between T. M. Randolph and the obligor J. Scott, which was settled on the 2d of September, 1791, when T. M. Randolph acknowledged himself to owe J. Scott £360 9s. 2d., to be paid in three years. The acknowledgment is at the foot of | the account, and is for the precise balance, but does not in terms refer to the account. On this bond, a suit was instituted by the as-signee. and tlie writ was executed to November, 1790, and a judgment was rendered thereon. against John Scott, one of the obligors, in May or November, 1794. For the purpose of using his claim against T. M. Randolph, as a discount, J. Scott placed the acknowledgment ! which has been mentioned in the hands of counsel, who, by a mistake, which is stated in his affidavit, omitted to produce it at the trial of the cause. In December, 1795, J. Scott obtained an injunction to this judgment, and the case now comes on for a final hearing. The failure to produce this acknowledgment at the I trial, is accounted for in so satisfactory a mariner, that it is admitted, that the discount may now be used, if the plaintiff in equity could have availed himself of it at law.
The first question, therefore, to be decided is, could John Scott have used this acknowledgment of T. M. Randolph, as a discount at law'? The act of assembly, under which the assignee sues, obliges him to allow all just discounts, not only against himself, but against the assignor, before notice of the assignment was given to the defendant.
It is the opinion of the court, that the plaintiff could not have availed himself at law of this claim as a discount, and is not at liberty to set it up in equity. The bill, therefore, must be dismissed with costs.
1 Rev. Code 1819, p. 484, c. 125, § 5. Tate, I Dig. 30.
In an action by the assignee, against the maker of a promissory note, he cannot set off against it a bill of exchange, for which the assignor is responsible to him. unless it appear that he was the owner thereof, before he received notice of the assignment. Ritchie v. Moore, 5 Munf. 388. Though the assignee of a bond, for valuable consideration, and without notice, takes it, subject to all the equity of the obligor, (Norton v. Rose, 2 Wash. (Va.) 233; Picket v. Morris, Id. 255,) and is in no better situation than the assignor, (Stockton v. Cook, 3 Munf. 68. But see an exception to this principle in Buckner v. Smith, 1 Wash. (Va.) 296; Elliott’s Ex’r v. Smock, Id. 389), yet such equity must be clearly established by proof, before it shall affect an assignee* without notice; especially if the obligor, after assignment, promise payment to the full amount of the bond, to the assignee. Mayo v. Giles' Adm’r 1 Munf. 533; Ludwick v. Croll, 2 Yeates, 464; Henry v. Brown, 19 Johns. 49.
See footnote 3 on preceding page.
Tlie editor has not been able to find the case cited in support of this position. The presumption is, that it was a ease before the chief justice himself in the circuit court. It seems to be amply sustained, however, by the cases cited in note (2) to this case.