Page:Federal Reporter, 1st Series, Volume 3.djvu/642

 FliBUma 0. ANDBEWS. 635 �regard with mueli favor an objection of this kind, niade for the first time in the appellate court. It prooeeds to detail the facts substantially as they turned ont in the proof, and then it declares: "Wherefore, the plaintiff, as such assignee, demands jndgment against said defendants in the sum of $2,000, and he prays for ail other proper relief," etc. �Now, the proof shows beyond ail question what the value of this coal was — �By Mr. Ayers, (interrupting:) May it please your honor, i4 does not show it in the bill of exceptions. �The Court: I take it for granted it was shown, becanse of the finding of the court. I will not assume, in the absence of an allegation to the contrary in the bill of exceptions, that there was not evidence tending to prove what was the value of the coal; and if that was shown, as I inf er it was, then it justifies the finding of the court. �It is daimed, that in consequence of the action of the court, the defendants were deprived of the right which they had in law, viz.: to set off the notes or claims which they had against the bankrupt in this suit, by his assignee. One answer to that may be, when it was insisted on the part of the assignee that he was entitled to recover upon the foujth amended para- graph of the complaint alone, that then it should have been claimed by the defendants that they had the right, if the plaintiff rested upon that part of the complaint, to introduce the set-ofif. It is said also, in reply, that the whole case pro- ceeds upon the ground of tort, and not of contract, and there- fore a set-off was not a proper defence to interpose. The fourth amended paragraph of the complaint does not proceed entirely upon the ground of contract; certainly, not so far as the defendants are ooncerned. They committed what may be properly considered a tort, and a serious one. That ia one answer to be made. And another, and a conclusive one, I think, is that it was not competent, under the facts of this case, for these defendants to interpose such a defence to this action. A court of justice ought not to tolerate such à defence, under the circumstances, and thus enable these defendants ����