12 Mass. 480 | Mass. | 1815
delivered the opinion of the Court.
The agreement stated in the defendant’s plea in bar having been proved, upon a trial of the issue tendered thereon by the plaintiff, and joined by the defendant, it is now contended, that the matter set forth in the plea does not constitute a legal defence to the action, and that judgment ought to be rendered for the plaintiff, notwithstanding the verdict. And the plaintiff is right in this course (although it would have been more convenient to have demurred to the plea), provided the defendant has not shown a legal defence to the action.
The plaintiff contends that this agreement did not constitute a mutual credit between the bankrupt and the defendant; because it was made at a time subsequent to the original contract; and because no debt actually existed from the bankrupt to the defendant at the time of the bankruptcy and assignment ; but that the demand of the defendant depended upon the contingency of his being compelled to pay or actually paying the sum due on the bond, in which he was surety for the bankrupt.
But we consider that, at the time of the assignment of the bankrupt’s effects to the plaintiff, the defendant had * a good and legal defence against an action upon the [ * 484 ] note, by the agreement ; and that this defence could not be taken away by the assignment ; no better right passing to the assignee, than the bankrupt himself had in the note. When the agreement was made, the note was due ; the promissee might have coerced payment of the whole. He, however, applied to the promissor to become surety for him in a bond payable at a future day, and agreed that such balance should be left due upon the note as would indemnify the defendant against that bond. The giving of the bond by the promissor was a sufficient consideration for this agreement; and the promissee could not have recovered the whole amount of his note, in violation of this agreement.
[*485] *Nor is it important in this case, that it was uncertain whether the defendant would be obliged to pay the bond in which he was surety ; for, although a contingent debt cannot be set off under a commission of bankruptcy, yet the agreement of the party bankrupt, that his claim shall not be enforced against his debtor while the debt remains contingent, may be a good defence at law in an action by the assignee, as was settled in the case of Dobson & al. vs. Lockhart,
It has been said, however, by the plaintiff, that, as the note was in possession of the bankrupt when the commissioners made the assignment, it passed to the assignee free from any right in the promissor to avoid it on the ground taken by him, according to the provision of the twenty-seventh section of the United States statute of bankruptcy. But that provision contemplates goods and merchandise which might be deposited with the bankrupt under certain circumstances ; and the object of the provision was, to defeat secret and fraudulent contrivances between the bankrupt and those who might claim property ostensibly his, on pretence that it was deposited with him as a trustee or factor. It certainly will not do to extend this provision to notes of hand, or other securities for the payment of money. For, if it was so extended, even evidence of payments made, but not indorsed,
Upon this reasoning, we are satisfied that the defence shown in the plea is sufficient; and judgment must be entered on the verdict.
4 Mass. Rep. 414.
8 Mass. Rep. 418.
. 5 D. & E. 133.
Sargent vs. Southgate, 5 Pick, 312. — Peabody vs. Peters, 5 Pick. 1. — Stockbridge vs. Dawson, 5 Pick. 223. — Maynard vs. Fisher, 6 Pick. 355.