Quebec Bank of Toronto v. Hellman

An act passed by the legislature of the State of Ohio, respecting the administration of assignments by insolvent debtors, provides as follows: 'Creditors shall present their claims * * * to the assignee for allowance, and the assignee shall indorse his allowance or rejection thereon, and claimants whose claims are rejected shall be required to bring suit against the assignee to enforce such claims, * * * in which, if he recover, the judgment shall be against the assignee that he allow the same in the settlement of his trusts: provided, however, that the assignee may make any defense to such action that the assignor might have made to a suit instituted against him before the assignment for the same cause of action.' 1 Swan & C. St. p. 710, § 74. The bill in this case was filed in pursuance of this statute. It was brought by the appellant, the Quebec Bank of Toronto, against Max Hellman, assignee of P. Weyand and D. Jung, partners as Weyand & Jung. The bill alleges an assignment by Weyand & Jung under the insolvent laws of the state, and the qualification of the assignee, and that Weyand & Jung, at the time of the assignment, were indebted to the Quebec Bank of Toronto upon a promissory note of which the following is a copy:

'CINCINNATI, February 7, 1870.

'Sixty days after date we promise to pay to the order of Geo. M. Bacon & Co. five thousand dollars at Merchants' National Bank. Value received.

'$5,000.

P. WEYAND and D. JUNG.' The note was indorsed as follows:

'GEO. M. BACON & CO.

'JOHN HUGHES.'

The bill further alleged that the note was indorsed and delivered to the plaintiff, before maturity, for value; that the plaintiff was the owner thereof; that a claim based on the note had been presented to the assignee for allowance against the estate of Weyand & Jung, and disallowed. The prayer of the bill was that the assignee be required to allow the claim of the plaintiff for the amount due on said note, to-wit, $5,000, with interest, in the settlement of his trust as assignee of Weyand & Jung. Two defenses were set up in the answer-First, that the appellant was not the owner of the note; and, second, that the note was without consideration and void. Upon final hearing the circuit court made a decree dismissing the bill. That decree is brought up for review by this appeal.

J. B. Stallo, E. W. Kittredge, and Joseph Wilby, for appellant.

John F. Follett and A. A. Kramer, for appellee.

WOODS, J.