1810.

"On the ground of the doubts entertained in this case, I am of OCTOBER, opinion to allow the appeal; the complainant first giving bond and security in the amount of double the debt and interest recovered Dangerfield against him by the judgment which was enjoined.

"SPENCER ROANE."

In this Court, a number of points were made in argument, by Botts, for the appellant, and Call and Wickham, for the appellee; but, as the decision here turned on a single point, and the doctrine upon it (with the principal authorities relating to it) is sufficiently expressed in the following opinions of the Judges, the arguments of counsel may with propriety be pretermitted.

Saturday, December 1. The Judges pronounced their opi

nions.

166.

v.

Rootes.

221.

Judge TUCKER, after stating the case, proceeded as follows: In the case of White, Whittle & Co. v. Bannister's Ex'rs,(a) (a) 1 Wash. this Court appears to me to have laid down the same doctrine with that expressed in Alexander v. Morris, and to have gone the full length of the Chancellor's reasons for the dissolution of this injunction. The case of Brown's Adm'x v. Garland,(b) (though an (6) 1 Wash. action at law,) contains, I apprehend, a direct application of the same principles. These authorities, I conceive, fully support the opinion of the Chancellor; and I will add the strong and pertinent observation of Mr. Wickham in his argument, that if set-offs of this kind were encouraged by the countenance and sanction of this Court, a debtor by bond, or other liquidated demand, who was unable or unwilling to pay his debt,' when judgment was recovered against him, would be sure to look out for the most complicated and perplexed claim that he could hear of against his creditor, as that would ensure him a respite of ten or twenty years before the claim could be properly liquidated. The only question before the Court being upon the propriety of dissolving the injunction, I am of opinion the Chancellor's decree ought to be affirmed.

I desire to be understood as giving no opinion whatever upon any other point in the cause.

Judge ROANE Concurred in dissolving the injunction.

OCTOBER, 1810

Judge FLEMING. This case seems to rest upon the single point, whether the appellant has a right to produce the unestaDangerfield blished claim (however just) of Nicholson, purchased up, for what consideration does not appear, as a set-off against his own bond, long after a suit had been instituted on it?

Rootes.

There are several decisions of this Court which seem expressly against the principle. As White, Whittle & Co. v. Bannister's Ex'rs and others. In that case the Court would not allow a judgment against the executors, assigned to the appellants as a setoff against rent due to the estate of their testator; because, said the Court, "if creditors, purchasing from the executors, or as in that case, renting an estate from them, should be permitted to bring forth their claims against the testator, in discount, they might thereby not only gain an advantage over other creditors, but the executors might be involved in the trouble of accounting for the assets on every purchase; and in case of mistakes, might subject themselves to a devastavit. The objection has additional weight where the plaintiffs purchased up the debt for the purpose of a discount." If, in that case, then, a judgment against the executors was not admitted as a set-off, à fortiori, shall an unestablished claim (however just it may ultimately prove to be) be disallowed. The cases of Brown's Adm'x v. Garland and others, (1 Wash. 221.) and Alexander v. Morris, (3 Call, 105.) go to establish the same principle.

us.

The only case I have been able to find which seems to have a contrary tendency, is that of Hudson v. Johnson; (1 Wash. 10.) but, when examined, it appears very different from the case before There the defendant, on the trial of the issue of payment, produced a receipt from the attorney who prosecuted the suit, dated after its commencement, which receipt was allowed as a discount; the defendant having proved, that on application to the plaintiff to know where his bond was, he replied that it was in possession of Lewis, his attorney: but the receipt having been given subsequent to the suit, the Court adjudged to the plaintiff

his costs.

I am of opinion that there is no error in the decree before us, dissolving the injunction.

Decree unanimously affirmed.

END OF OCTOBER TERM.

(APRIL TERM, 1810, continued from p. 338.)*

Mayo against Giles's Administrator.

a

Thursday, March 29.

1. Although the assignee of bond, with, tice, takes it

or without no

by

proof, before

no

tice; espe

IN the month of May, 1793, John Mayo obtained an injunction from the County Court of Henrico, to stay proceedings on a judgment rendered against him in favour of Knowles Giles, assignee of Fortunatus Sydnor; setting forth in his bill, that in the subject to all the equity of year a certain Francis Gaddy, then of the city of Richmond, the obligor, yet such equihad an account against the complainant for blacksmith's work; ty must be that he the complainant was told at several times by Fortunatus manifestly es clearly and Sydnor that Gaddy was indebted to him, and had instructed him to tablished apply to the complainant for payment; that, not suspecting any it shall affect an assignee fraud, he gave his bond to him the said Sydnor for 84l. 7s. 11d., without being the sum then supposed due from the complainant to the cially, if the said Gaddy, without making any deduction on account of an obligor, after engagement of his to a certain John Swann for the payment ment, promise of a sum of money due from Gaddy to Swann, the amount of full which was then uncertain, and also the value of eleven muskets to the aswhich had been delivered by the complainant to the said Gaddy signee. to clean, and had never been returned; the aggregate amount of. See also,on which said two articles was to be deducted from the said bond, assignments, the subject of when the precise sum could be ascertained. support of this allegation, a written agreement by the said Sydnor, bearing 1 Wash. 299. even date with the bond, was exhibited.

In

The bill further stated that Sydnor, soon after, assigned the bond to Giles; that, "at the time of making the said assignment, the said Giles knew the circumstances under which the said bond was granted," that Gaddy refused to grant the complainant an acquittance, (alleging that he had never authorized Sydnor to receive the debt,) and forbade him to pay any part of the said bond; that, nevertheless, Giles the assignee had brought suit, and recovered a judgment at law.

To this bill Sydnor and Giles were both made defendants, but no process appears to have issued against the former, and no answer by him was filed. The latter by his answer declared him

The succeeding nine cases of April Term, by a mistake of the printer, were uot inserted in their proper place; but as the reader will find them by the index aseasily as if this accident had not happened, it is hoped that no inconvenience will

result.

the assign

payment of the amount

of the bond

Buckner

V.

Smith, &c.,

and Hoomes v. Smock, Ibid

389.

APRIL, 1810.

Mayo

V.

self a bona fide purchaser of the bond, for a valuable consideration, "expressly denying that, at the time the said bond was assigned to him, or at any time before, he knew of any dispute or Giles's Adm'r. fraud being practised by which the complainant was induced or drawn in to execute the said bond." He contended, therefore, that, having the legal right to the debt, and equal equity with the complainant, a court of equity ought not to deprive him of the benefit of his judgment at law.

The testimony in support of the bill consisted, 1. Of Sydnor's written agreement dated the 8th of October, 1790, in the following words: "Having this day received Colonel John Mayo's bond, on account of Francis Gaddy, for 84l. 7s. 11d. and there being some doubts with Mr. Mayo whether he owes Mr. Gaddy that sum or not, I therefore hereby oblige myself, provided Mr. Mayo, in one month after this date, should produce proper vouchers to satisfy me that he has and is obliged to pay fohn vann 131. 15s. on account of Mr. Gaddy, independent to an order drawn in favour of John Swann on Mr. Mayo by Mr. Gaddy, and provided Mr. Gaddy should not within one month after date produce to Mr. Mayo eleven muskets which were delivered him to clean, that the price of the said muskets and the 13%. 15s. shall be fixed to the credit of this bond executed by Mr. Mayo agreeable to the award of Mr. John Hicks, William Booker, William Foushee, and Joseph Higbee. Witness, my hand, F. Sydnor." 2. A letter from Sydnor, dated the 9th of March, 1791, mentioning that necessity had compelled him to pass the bond to Giles; which he hoped the complainant would not be displeased at; that Giles had promised," if the complainant would fix him upon a certainty of receiving one half the money in a short time, he would wait nine, or perhaps twelve months for the balance;" that should the complainant, on making particular inquiry, find the bond was given for rather too large a sum, the strictest honour should guide him (Sydnor) to fix the overplus in his hands to discharge it, as he conceived it not worth while to alter the bond for so small a sum, as perhaps the complainant could rely on his punctuality; and that he "hoped he would accommodate the matter as above proposed." 3. A deposition of a certain Samuel Jones, proving a verbal declaration by Sydnor, "that he had long been at a loss what to do respecting a bond he had obtained of Colonel Mayo, and passed to Knowles Giles, who had then sued on said bond, which would probably be carried to a Court

APRIL, 1810.

Mayo

V.

of Chancery, where he the said Sydnor might be placed in a disagreeable predicament, as Gaddy had cancelled the bargain by which he obtained the bond;" that he had previously contracted with Gaddy for the sale of part of a lot in the City of Giles'sAdm'r. Richmond, and that by selling the same ground to the said Jones, he should "destroy the foundation of his claim against Guddy, which had been his justification in the receipt of said bond; but, as he should never be able to get any thing out of Gaddy, he had determined to sell, and execute a deed for, the ground, to Jones; which he proceeded to do."

On the other side, the deposition of Alexander King proved a promise by Mayo, (when applied to, by the deponent, on behalf of Giles, for payment of the bond,) that he would pay "the amount of the bond to Giles." The judgment at law was by confession; and, "by consent of the parties, fourteen days were allowed the complainant to file his bill of injunction in the Clerk's office."

In August, 1793, a motion to dissolve the injunction was overruled; and in November, 1796, Giles having died, the suit was revived against his administrator. May 8th, 1800, the cause came on, by consent of parties, to be heard in chief, when the injunction was dissolved, and the bill dismissed with costs. On an appeal to the Superior Court of Chancery, this decree was affirmed by the late Chancellor, Wythe; and thereupon Mayo appealed to this Court.

April 21st, 1810. The Judges delivered their opinions.

Judge TUCKER, (after stating the case.) The original agreement between Mayo and Sydnor, referred to in the bill, whereby it was stipulated that, if Gaddy did not within one month produce the eleven muskets delivered him to clean, that Mayo should have credit for their value, is an admission on the part of Sydnor that Mayo should not be driven to his action to obtain compensation for them, if not delivered, but that the value thereof should be admitted as an equitable discount, or set-off against the bond. I call it an equitable discount, because I do not know in what manner he could have had the benefit of it at law; the value of the muskets not being ascertained in the agreement. And indeed, the parties seem to have admitted this, the one