
    Edward O’Connor v. Willard Parker and another.
    
      What not a payment within the meaning of Sec. SB of the bankrupt act. It is no defense to an action upon a note against an indorser that tile note was given by the maker and accepted by the holder thereof, in payment of a precedent debt, with knowledge on the part of all parties that the maker was insolvent, that the note was given with a view to give a preference, and that the maker was soon after proceeded against in bankruptcy and declared bankrupt. This is not Buell a payment as is declared void by section 85 of the bankrupt act of 1867.
    
      
      Practice in Supreme Court: Special damages for delay and vexation. Where, upon affirming a judgment on writ of error it appears to this court that the errors assigned are frivolous, special damages will he awarded for the delay and vexation, under § 5613, Comp. L.
    
    
      Submitted on briefs April 21.
    
    
      Decided April 25.
    
    Error to Wayne Circuit.
    The opinion contains a sufficient statement of the case.
    
      Sylvester Lamed and Fred. A. Baker, for plaintiff in error.
    
      Meddaugh & Briggs, for defendants in error.
   Cooley, J.

This appears to be a writ of error upon a judgment rendered against O’Connor in the court below, as indorser of a note made by McKinney & Co. The sole defense is that the note was given by McKinney & Co. and accepted by the Parkers in payment for a precedent debt, with knowledge on the part of all parties that McKinney & Co. were insolvent; that the giving of the note was with a view to prefer the Parkers as creditors; that' McKinney & Co. were soon after proceeded against in bankruptcy, and were actually declared bankrupts; and that by reason of these facts the note and indorsment thereof were altogether void. The circuit court held these facts to constitute no defense, and we see no ground for questioning the conclusion.

The argument of the plaintiff in error is that section thirty-five of the bankrupt law makes certain payments void when made to prefer a creditor or to defeat the policy of the act; and the giving of this note, it is said, is such a payment. We do not think so. The payments the law makes void are those which reduce the means of the debtor to pay his debts ratably. A change in the form of his own obligation from an account' to a note could not have that effect; neither could the accommodation indorsement with which a friend might favor him. These circumstances work no wrong to creditors, and are, therefore, not within the evils this section of the law had in view.

Motion for special damages.

B. W. Meddaugh, for defendants in error,

moved for special damages under § 5612, Gomp. L., citing Waterman v. Toms, 7 Mich., 78.

8. Lamed, contra.

Waiving all consideration of the other infirmities which we think are obvious in the case on the defense, an affirmance of the judgment is ordered.

The other Justices concurred.

The court

awarded twenty-five dollars damages.  