Joseph Weeks vs. Luther B. Hunt, 6 Vt. 15

The opinion of the Court was pronounced by Mattocks, J. — Bellows bought a note of James against Nichols — sued it in the name of James — recovered judgement, and committed Nichols to jail. Hunt, the defendant, signed the jail-bond, which was broken, and a suit brought thereon by Bellows, for his benefit, in the name of Weeks, the Sheriff, against defendant and Nichols; ar ’ before judgement, notified the defendant of the assignment ©f the debt to him, Bellows. Judgement passed against the defendant in 1829, which is the judgement now declared upon.

The defendant now pleads in offset, first, a note dated May, 1829, given by Jones to the defendant — also, a count for money had and received. The defendant further pleads certain demands in offset against Weeks, the docket plaintiff. To these pleas in offset, the plaintiff pleads, 1st, The general issue, that neither Jones nor Weeks assumed and promised. . . - —— 2d, Replies the assignment of the debt by Jones to Bellows and notice to defendants, before the causes of action on the pleas in offset accrued, and the prosecuting the suits before mentioned by Bellows for his benefit.

The defendant, by his rejoinder, traverses the notice, and upon these pleadings the cause came up for trial.— The defendant having admitted the judgement declared on, offered the note against Jones in offset. Plaintiff then proved notice' to defendant of the assignment, before the date of the note, and the Court excluded the note.

This was obviously correct, under the various decisions in-this State, by which it is now settled that a Court of Law will protect an assignee of a chose in action, and that the debt- or can set up no defence against the original payee of the debt, which accrued after notice to the defendant of the assignment. Aldis Pavis, for appellee. Hunt & Beardsly, for appellant. The defendant then offered to show that the original indebtedness for which the note was given was prior to notice of the assignment. This the Court also excluded.

If the' previous indebtedness was extinguished by giving the note, then the note was the only ground of action, or of offset; and the case of Hutchins et al. vs. Olcott, 4 Vt. R. 549 seems to support the position, that ordinarily, the accepting a promissory note, does extinguish the cause of action upon a debt for which it was taken ; and in this case there are no circumstances from which a presumption can be drawn, that this was not the .understanding of the parties. This then was a sufficient reason for rejecting the evidence last offered, and there is no occasion for inquiring whether there were other reasons.

As to the offsets against Weeks, the docket plaintiff, the suit having been originally bro’t on the jail-bond in his name, as Sheriff, at the expense and for the benefit of Bellows, the real creditorj now to permit, as it were, an account to be taken between the Sheriff and this defendant the surety on the bond of their affairs, would be utterly inconsistent with the object of the bond, which is to allow the creditor to collect his debt after condition broken.

Whether the jail-bond was assigned and sued in the name of the creditor, or without an assignment, in the name of the Sheriff, for the benefit of the creditor, is of no importance. In the case of Burke adm'r vs. Mower 2 Vt.R. 517, the Judge, in giving the opinion of the Court, says, “ In any view of the case, it is very clear that no defence can avail the defendants that would not be allowed if the bond had been formally assigned to the creditor, and the action brought in his name.” There was therefore no ground for allowing the offsets against Weeks. The judgement of the County Court is affirmed.