Page:United States Reports, Volume 1.djvu/466

Rh 

1789.

To illuftrate this argument, fuppofe that C gives his bond to D. which D affigns to A: A gives his bond to E. which E affigns to C. A then fues C.  They are both affignees:  What motive of policy, what principle of conftruction, could in this cafe, preclude a difcount ? It is the object of law to put an end to ftrifes; and the Courts of Juftice are ever anxious to prevent an unneceffary circuity of action. Under the ftatute of 2 Geo. 2. which is in the fame words with the acts of Pennʃylvania, the Judges of England have permitted an indorfement after the fuit brought to be difcounted ; the practice requiring only that if fhall be proved to have been made “ beƒore plea pleaded.” ''Cromp. Pract.'' 161. And the cafe in 2 Strange 1234, makes no queftion, whether an affignee may difcount, but merely turns upon the time of indorfement.

The objection, that the allowance of fuch accounts would be the means of preventing infolvent debtors from obtaining a fubfiftance, goes much too deep : it is confidering inconveniencies arifing on a queftion which clear and pofitive law has determined ; for, the Act of Affembly fays that the future of his old debts ; and the Judges of the Courts of Common Law have extended the principle of difcount, by a moft liberal equity, far  beyond the words of the ftatute in England.   2Bl.Rep. 869.

Sergeant, for the Defendant in Error, contended, that the attempt to pay for goods, by the bond of an infolvent debtor, purchafed at five fhillings in the pound, or, perhaps obtained without any confideration, was in itfelf an act againft confcience ; that no cafe could be fhewn of a difcount allowed upon an indorfement made after the action brought ; for, Cromp. 161. is not a fufficient authority ; that the rule of retaining, where there are mutual debts, did not apply ; and that a fet off muft be a demand in the Defendants own right. He cited 8Vin. 557. ''Bro. (Debt) pl.'' 172. ''Ibid. (Condition) pl'' 181. S.C. 1 State Laws 48. 3Black. 304. 2Geo. 2.c.22. 8Geo. 2. c.24. ''Bull. N. P.'' 179.

On the 3d day of October after ftating the cafe, delivered the opinion of the Court to the following effect:

M‘KEAN, Chieƒ Juʃtice. As a difcharge under the infolvent laws, while it exempts the perfon from future moleftation, leaves the effects of the Defendant for ever liable to the demands of his creditors, the difcharge obtained by the Defendant in Error, can have no operation in the decifion of his caufe.

A queftion has been made, whether the Plaintiff in Error might have defalked his bond under the Engliʃh ftatutes ; the firft of which takes notice of mutual debts,&c. The Judges there were, indeed, of opinion, that only debts of the fame dignity could be fet off ; but for this, I can difcover no good and fatisfactory reafon ; and a remedy was afterwards provided by a fubfequent ftatute, which declares, that debts of different natures may be defalked.

The true ground, however, for the decifion of this caufe, arifes from the conftruction of the feveral Acts of Affembly for the relief of