
    Jackson v. Adamson.
    
      Friday, January 2, 1846.
    If the surety for a debt pay the same before it is due, the payment will, after the debt has become due, but not before, be a legal set-off against his note payable to the principal and held by him.
    Such payment is also a good set-off against the said note in the hands of an assignee, if notice of the assignment had not been given to the maker before the payment became a valid demand against the payee.
    APPEAL from the Maclison Circuit Court.
   Sullivan, J.

— This was an action of assumpsit brought by Enos Adamson, assignee of Thomas Adamson, who was assignee of 'William Goodwin, against Jackson on a promissory note. The defendant pleaded, 1st, Non assumpsit; 2dly, Payment to Goodwin, for that, &c., before the assignment of the note, Goodwin was indebted to the defendant in the sum of 500 dollars for money lent and advanced; and for money paid, laid out, and expended for his use and at his request, &c.; and for that the defendant on the 15th of November, 1840, as the surety of Goodwin and at his request, paid to one Farnsworth the sum of 300 dollars, &c. Similiter to the 1st plea; and replication to the 2d, denying the payment. By consent of parties the Court tried the cause. Judgment for the plaintiff.

The facts of the case are as follows, viz.: On the 20th of March, 1839, Goodwin, together with Jackson and others as his sureties, executed two writings obligatory payable to Farnsworth on the 1st day of September, 1841, one for the sum of 300 dollars, and the other for the sum of 80 dollars. On the last-mentioned note there was a credit for 40 dollars. The consideration of the notes was a tract of land sold by Farnsworth to Goodwin. In May, 1840, Jackson purchased the same land from Goodwin, paid part of the purchase-money, and gave his promissory note to Goodwin for the sum of 340 dollars, payable on the 1st day of September, 1841, so that the amount and day of payment should correspond with the amount owing by Goodwin to Farnsworth, and the time at which it would become due. It was agreed between Goodwin and Jackson, at the time of their contract and when said promissory note was given, that Goodwin should exchange said note with Farnsworth for the writings obligatory on which Jackson was bound as surety for Goodwin, and the note was given by Jackson on the express condition that it should be so used. In November, 1840, Goodwin having failed to take up the writings obligatory which Farnsworth held, Jackson paid to Farnsworth the full amount of the debt. In January, 1841, Goodwin assigned Jackson’s note to Thomas Adamson, and in July following Thomas Adamson assigned it to the plaintiff.

When Jackson lifted the notes held by Farnsworth, his liability as the surety of Goodwin had not attached. The notes were not yet due, and no default had been made by Goodwin in the performance of the engagement, for the fulfilment of which by Goodwin, Jackson had made himself responsible. The payment, therefore, made by Jackson to Farnsworth, viewing it in the light merely of a payment by a surety for his principal, was not compulsory but voluntary. A surety is not authorized to discharge a debt, so as to make the principal his debtor, until default has been made by the principal in the performance of his engagement. Pitman on Principal and Surety, 130. But if Jackson could not, by paying to Farnsworth Goodwin’s debt before it became due, have a legal set-off against his note in Goodwin’s hands from the time of such payment; yet, when the notes fell due, such payment would be a legal demand against Goodwin, and consequently a set-off against Jackson’s note in Goodwin’s hands. If so, it is a good set-off against the note in the hands of an assignee, if Jackson had no notice of the assignment; for the statute is express, that the assignee shall allow all just set-offs, discounts, and defence, not only against himself, but against the assignor, before notice of the assignment shall have been given to the defendant.

In the case before us, the plaintiff failed to prove that notice of the assignment had been given to Jackson, before his claim against Goodwin had become a legal set-off.

We purposely refrain, at present, from inquiring into the effect of the agreement between Jackson and Goodwin, that the latter should lift, with the note of the former, the notes in Farnsworth’s hands; and also from considering whether Jackson had a right to pay the notes in Farnsworth’s hands, so as to discharge the lien which Farnsworth had on the land conveyed by Goodwin to Jackson for the These are matters in defence which it will be time enough to consider when the plaintiff shall have made out his case.

J. Smith and S. Yandes, for the appellant.

W. Quarles and J. H. Bradley, for the appellee.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.  