Parker v. Sanborn

73 Mass. 191

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Metcalf, J.

1. We find no legal ground for the exceptions taken to the defendant’s declaration in set-off, and to the evidence admitted in proof of it. It was not necessary that he should declare on the note which he indorsed and paid for the accommodation of the payee. Neither was it necessary that the defendant should declare in a count for money paid for the payee’s use. Doubtless he might have so declared; but he would, in that case, have been required to file a specification of particulars. Instead of so doing, he has stated the particulars in what may be termed a special count. Th's seems to us to be. a compliance with the direction of the practice act, that “ when the defendant relies on any claim by way of set-off, he shall file with his answer, a declaration adapted to such claim.” St. 1852, c. 312, § 37.

The books of the bank, showing the amount paid on the note, were, taken in connection with the check given by the defendant for the amount, competent evidence of the payment.

2. After the property of an insolvent debtor has been assigned under the insolvent laws, and thus sequestered and placed in the custody of the law in trust for his creditors, the statute of limitations does not run against their claims upon his estate in the hands of his assignee. Minot v. Thacher, 7 Met. 352. Willard v. Clarke, 7 Met. 437. The assignee, in bringing a suit upon a demand which was due to the insolvent before the commencement of proceedings in insolvency, represents the estate; and in such' suit all claims of the defendant may be set off, which existed at the time of the first publication of notice. Aldrich v. Campbell, 4 Gray, 284. A claim against the estate of the debtor in the hands of his assignee stands upon a different ground, in this respect, from the right of action against the debtor personally: That right is not taken away or suspended by the proceedings in insolvency, and is therefore barred by the lapse of the usual period of limitation. Collester v. Hailey, 6 Gray, 519. Exceptions overruled.