Page:United States Reports, Volume 1.djvu/464

Rh 

1789.

“ due might be defalked againft the faid Ludwig Kuhn's demand,

“ which it was argued, had commenced after his faid difcharge.

“ To this the Counfel for the Plaintiff objected, and prayed the

“ Court not to admit the fame obligation and affignment thereof in

“ evidence ; to which the Court affented, and over-ruled the teftimony.

“ Whereupon the faid Counfl for the defendant, did

“ then and there, on behalf of the faid defendant, except to the laft

“ opinion of the Court, and did then and there requeft of the faid

“ Court to put their feals to this bill of exceptions, which was

“ granted accordingly.”

To the bill of exceptions a memorandum was fubjoined by the Counfel, on both fides, ftating, that the Plaintiff below had notice of the bond and affignment before the fuit brought, but not before the fale and delivery of the goods by him to the defendant.

The refufal of the Court of Common Pleas to permit the bond and affignment, to be given in evidence, was the error now alledged ; and, on the 26th of September, the cafe was argued by Levy, for the Plaintiff in Error, and Sergeant, for the defendant.

Levy, Before the acts of affembly are particularly examined, it may be proper to confider fome of the inconveniencies that exifted, in fuch cafes, at common law. Goods delivered in part might, perhaps, be given in evidence in an action of Aʃʃumpʃit, by way of mitigating the damages, but not under a plea of payment to a fpecialty ; nor could the defendant difcount any note, bill, bond, recognizance, or judgment entered into by, or obtained againft, the Plaintiff. This neceffarily multiplied fuits and cofts ; and, it often happened, that a Plaintiff, in defperate circumftances, recovered againft a defendant to whom he was, in fact, indebted in a greater fum. It, indeed, by accidental circumftances, his action was brought to a conclufion, earlier than the defendant's crofs action, he might receive the money, and for his larger debt, become utterly infolvent, by the time the defendant had obtained a judgment.

Inconveniencies of this kind have been perceived by the Legiflature, or judicial power, of the moft enlightened nations, and a remedy, in a greater or lefs degree, provided. See ''Lord Kaim. Prin. oƒ Eq.'' 201.2.3.4.5. and, in England, even before the ftatutes had given relief in the Courts of Common Law, the Courts of Equity endeavoured to provide for fuch cafes. Show Ca in Parl. 17. 1 Vern. 121. 2. 2Vern. 428. 9. Caʃe 390. 2 P.Will. 128.

In Pennʃylvania there are two Acts of Affembly that treat of this fubject. 1State Laws 48. and Ibid. 165. It is obfervable that the firft general provifion by the former act, paffed in 1705, was twenty-two years previous to the firft general provifion of the fame nature in England, which was not till the 2Geo. 2.c. 22. ʃect. 13. The latter Act of Affembly, however, is copied, almoʃt verbatim, from the 2Geo. 2.c. 22. and is pofterior in point of time.

Thefe two Acts of Affembly, made in pari materia, are, then, to be confidered as remedial laws, and muft receive a liberal tion;