#### * Joseph Groves *versus*Bartholomew Brown.

It is competent for one, whose debtor attempts to discharge himself by showing that he has paid on a trustee process, or that he had discharged himself from that action on oath, to prove that the debt still remains due.

This was an action of *assumpsit*on a promissory note, made by the defendant to the plaintiff, on the 4th of November, 1809, for 97 dollars 87 cents, payable, with interest, in two years from the 16th of said November, in neat cattle.

At the trial, before *Jackson,*J., upon the general issue, at the last April term in this county, the defendant admitted the making of the note; but contended that he was discharged therefrom by a judgment against him, as trustee of the said *Groves,*rendered at theu Circuit Court of Common Pleas in January, 1812.

It appeared that the writ in that suit was served on him on the *3054th of November, 1811 ; and *Ichabod Bliss Al.,*plaintiffs therein, recovered judgment against said *Groves,*as principal, for the sum of 110 dollars 67 cents. But, on examining the answer of *Brown*to the interrogatories filed in that case, it appeared that he had, according to his own statement, paid the amount of the principal of the note now in question, according to an agreement made between him and *Groves*at the time of making the note, and that he was not indebted to *Groves*for more than the amount of the interest thereon.

Whereupon the judge delivered his opinion that the said judgment was a bar, in the present action, only to the extent of the sum so admitted by the said *Brown*to be due; and that the said *Groves*was not concluded from disputing, in this action, the existence and effect of the supposed agreement, stated by *Brown*in his said answer, and the payment said to have been made pursuant thereto.

It appeared that an execution had been issued on said judgment, and returned unsatisfied.

The defendant then contended that he had duly paid the amount of the principal of said note before the commencement of this action, according to the agreement before referred to; as to which he produced evidence to prove that, in November, 1809, one *Ellinwood*had offered to sell a piece of land to the plaintiff for about 300 dollars. The * plaintiff' applied to the [ * 335 ] defendant to buy it of him, and to allow him some compensation, in addition to the said price, for his trouble in effecting the purchase and measuring the land. A bargain being thus made, *Ellinwood*conveyed the land to the plaintiff, and was to receive in payment his notes, signed also by some other person as surety. The plaintiff requested the defendant to go with him and sign the notes as surety ; but the defendant, being unwell, desired his son, *B. Brown,*Jun., to do it. The son objected at first, but it was then agreed, between the plaintiff and defendant, that the notes, which the defendant should give on receiving a conveyance of said land, should not be paid to the plaintiff himself, but that the amount thereof should be paid by the defendant to *Ellinwood,*and should go in discharge of the notes to be given to the latter by the plaintiff ; and that the price of the land should not pass through the hands of the plaintiff, so as to be liable to be misapplied by him, to the prejudice of him or his said son, but should be paid immediately by the defendant to *Ellinwood.*The son thereupon went with the plaintiff and signed, as surety with him, notes to *Ellinwood,*for the payment of 100 dollars a short time thereafter, for 100 dollars pay able in one year, and for 97 dollars 87 cents payable in two years, all without interest. A few days afterwards, the plaintiff made a *306conveyance of said land to the defendant, who thereupon gave his notes to the plaintiff, corresponding in amount, and nearly in time of payment, with those above mentioned, excepting only that the notes signed by the plaintiff were on interest from their dates. A short time afterwards, the said *Ellinwood*alleged that the said notes given to him should have been on interest, and that it was omitted by mistake; and, after some altercation, it was agreed, between the plaintiff and said *Ellinwood,*that the former should allow about 19 dollars, being about two thirds of what the interest would amount to. According to the aforesaid agreement, the defendant made the two first payments to *Ellinwood,*and thereupon took up his own notes, and cancelled those given by the plaintiff [ * 336 ] * to *Ellinwood*for the like sums respectively. The note in suit was one of those given on that occasion by the defendant. Before it became due, he was summoned, as the trustee of *Groves,*in manner above mentioned ; but, nevertheless, paid to *Ellinwood*the principal of said note when due, that being equal to the then remaining note of the plaintiff to *Ellinwood,*which was payable without interest; and for the residue of the note now in question, being about 19 dollars, the defendant was supposed to be chargeable as trustee on the aforesaid judgment. The defendant, at the time of the last-mentioned payment, received from the said *Ellinwood*the said last remaining note of the plaintiff.

The plaintiff contended that these facts did not constitute a legal defence to this action ; and that the note now in suit had been assigned, before it was payable, for a valuable consideration, by the plaintiff to the said *Ichabod Bliss,*Jun., for whose use and benefit this action was brought. The defendant denied that the note had been so assigned ; and further alleged that, if it had been, such assignment was made after the said *Bliss*had full knowledge of the agreement above stated, as to the manner in which the note was to be paid.

All the evidence produced to prove said assignment, and to prove such knowledge in said *Bliss*at the time of the assignment, also the evidence to prove the agreement above mentioned, was left to the jury. And the judge instructed them that, if they were satisfied that such an agreement had been made in manner before stated, and that the defendant had accordingly paid the note to said *Ellin*wood,i as he alleged, they should find a verdict for the defendant, unless they found the note had been so assigned by the plaintiff to said *Bliss,*without any knowledge by him of said agreement; in which case they should find a verdict for the plaintiff, for the principal of the note, with the interest remaining due thereon.

The jury returned a verdict for the defendant; and the plaintiff *307thereupon moved for a new trial, on account of the said opinions and directions of the judge.

[ * 337 ]

* *Bliss*and *Mills*for the plaintiff.

*Ashmun*for the defendant.

*Curia.*

It must be competent for the principal in any action, whose debtor attempts to discharge himself, by showing that he has paid on a trustee process, or that he had discharged himself from that action upon oath, to prove that the debt still remains due.

Otherwise he is placed entirely in the power of his debtor, who may cancel his debt by his own declaration. The remedy by indictment for perjury is the only one which the summoning creditor has, because he cannot have evidence to substantiate the debt. This defence amounts, in fact, to payment, which may be disproved by the plaintiff, *(a)*

But the circumstances sufficiently show that the defendant had fairly cleared himself. The agreement with Groves, and the consequent payment of *Groves’s*note given for the purchase of the land, is a payment of the note sued in this action; and the circumstances of the assignment were fully left to the jury, and have been decided by them. (b)

*Judgment on the verdict.*

(a)

**Vide *Winthrop*vs. *Carleton,*8 *Mass. Rep.*456. — *Foster*vs. *Jones,*15 *Mass. Rep. 186.—Perkins*vs. *Parker,*1 *Mass. Rep.*117.— *Wood*vs. *Partridge,*post, 488. — *Hull*vs. *Blake,*13 *Mass. Rep.*153. — *Parker & Al.*vs. *Danforth & Trustees,*16 *Mass. Rep.*304. *—Andrews*vs. *Herring,*5 *Mass. Rep.*210. — *Thorndike*vs. *De Wolf*& *Trustees,*6 *Pick.*120. — *Kidd*vs. *Shepherd,*4 *Pick.*238. — *Williams & Al.*vs. *Marston,*3 *Pick.*65.

(b)

*Dix & Al.*vs. *Cobb,*4 *Mass. Rep. 508 — Gould*vs. *Newman,*6 *Mass. Rep.*239. — *Parker & Ux.*vs. *Grant,*ante, 157. — *Wood*vs. *Partridge,*post, 488. — *Dennie*vs. *Hart*2 *Pick.*204.