Ripley against Wardell

*Ripley against Wardell. An action will lis on an agreement by a third person to procure, after the discharge of a debtor under the insolvent act, his note for a composition on the original debt due the plaintiff, in consideration of his giving up the defendant's note, that it might not obstruct the insolvent’s discharge under the act. If a security be deposited on returning of which the depositary will be entitled to something in lieu, on tendering the deposit, an account may instantly be brought for the substitute, and an offer of it, the day after suit brought, is not a defence. This was an action of assumpsit, grounded on the following circumstances. The plaintiff was, in 1796, a creditor of the defendant’s brother, John Wardell, as holder of a promissory note of his, for 727 dollars, payable at ninety days after date. In November, 1799, John Wardell, having a promissory note for 811 dollars and 28 cents, made by one Jonathan Haynes, and dated 16th May, 1798, payable six months after date, and wishing to extinguish the demand of the plaintiff, that it might be no obstacle to his discharge under the insolvent act, offered to transfer Haynes’s note to the plaintiff, and at the same time accompany it with a security to give when discharged, his own note for six shillings and eight pence in the pound of the original debt; on doing this he was to receive back the note of Haynes. Accordingly the defendant, as his surety, entered into the following contract with the plaintiff. ‘I do hereby agree and promise to deliver to John Ripley, John Wardell’s note for six shillings and eight pence in the pound, for a note now given up for seven hundred and twenty-seven dollars, dated 26th December, 1796, payable in ninety days after date. The note which is to be given by the said John Wardell, is to be dated and given after he is discharged by the act of insolvency, payable eighteen months after date; at which time said Ripley is to return a note of hand against Jonathan Haynes, for eight hundred and eleven dollars and twenty-eight cents, dated 16th May, 1798, payable in six months, which is the property of John Wardell, or return this writing to Robert Wardell, and keep the note against Haynes. “New York, November 7, 1799. “ Signed Robert Wardell.” Haynes'then was, and now is, insolvent: but his note, and the above agreement being delivered to the plaintiff, he gave up the note of John Wardell, who was shortly after discharged under the insolvent law. Previous to the 19th of November, 1801, and after the discharge under the insolvent act, John Wardell obtained his certificate under the bankrupt law of the United States. *On the 19th of November, 1801, the plaintiff commenced the present action, but, before doing so, offered to return, and tendered to the defendant Haynes’s note, demanding at the same time John Wardell’s, payable at eighteen months, for six and eight pence in the pound, according to the terms of the agreement. In the course of the next day, the defendant -tendered the plaintiff John Wardell’s note for the composition agreed upon, and payable at the time stipulated. The plaintiff,, however, continued to proceed; the defendant gave him a relicta, and cognovit actionem for 270 dollars, the amount of the six and eight pence in the pound on the original debt, subject to the opinion of the court, whether, on the above statement, the plaintiff was entitled to recover. If they should so determine, judgment to be entered for him; if otherwise, a nonsuit. [MAJORITY — Livingston, J.,] Livingston, J., delivered the opinion of the court. It was the defendant’s duty, under the agreement stated in this case, to make a tender to the plaintiff of John War-dell’s note immediately, or early after his discharge: the giving of such note was a condition precedent to the plaintiff’s returning the note of Haynes. The tender of this note after the suit was commenced, (which was not until two years after the defendant’s discharge, and after the second bankruptcy of John Wardell,) was too late. If it had been given sooner, the plaintiff might have turned it to some use in the way of business without rendering himself responsible. It does not appear when the plaintiff offered to return the note of Haynes. If at the time of such proposal the defendant had given him John Wardell’s note antedated as he requested, it might have answered, and the plaintiff would have been bound by an offer, which, in my opinion, was not at all necessary to entitle him to this suit; at any rate, as this request was not acceded to until a day after the suit was commenced, it was too late, and the plaintiff must have judgment for the sum of 270 dollars. Judgment for the plain tiff. а) See Cockshot v. Bennet, 2 D. & E. 763; Holland v. Palmer, 1 Bos. & Pull. 95; Smith v. Bromley, Doug. 670. Quaere, if this case be not shaken. See Payne v. Eden, 3 Caines’ Rep. 218, n.