4 Me. 435 | Me. | 1827
at the ensuing term in Cumberland, delivered the opinion of the court.
The plairiSff had a cause of action against the defendant,which still exists, unless it has been discharged or extinguished. It is contended that it has been so, as between these parties, by the order given in January, 1826, and what took place afterwards’. At common law, one simple contract is not discharged by another. But an exception to this rule has been established in Massachusetts, and in this State ; it being held that the giving of a negotiable note, in consideration of an existing simple contract, discharged the contract for which it was substituted. The reason upon which this exception is founded, is, that otherwise the party might be twice charged ; upon the original debt, and upon the note, In the hands of an indorsee. A note or other engagement, which may be enforced at law, whether negotiable or not, given to a third person, by the appointment and direction of the original creditor, ought, for the same reason, to have the same effect. £1 is an assignment of the debt, with an express promise by the debtor to pay to the assignee, to whom alone he ought subsequently to be chargeable ; that he may not be subject to two tiuits, and a double liability. If therefore the debt, for which this action is brought, has been assigned to John Wise, and the
The proceedings in the case, in which the defendant was summoned as the trustee of John Wise, at the suit of one of his creditors, cannot affect the rights of the plaintiff; he being no party to that suit. A trustee judgment satisfied, protects the trustee from being held answerable to the party, whose trustee he has been adjudged to be ; that party being the principal defendant in the suit, in which such judgment is rendered. But
For these reasons, the judgment is reversed ; and a new trial ordered at the bar of this court.