
    [Philadelphia,
    Saturday, December 21, 1811.]
    Bond for the use of Lyle against Gardiner.
    A brought a suit against B, and then entered into an arrangement with him, by which it was agreed that the suit should be discontinued, and an amicable action against B be brought to the same term. C thereupon covenanted with A, that if he should recover any sum of money in the amicable action intended to be brought against B, in pursuance of the agreement, B should pay the amount to A on demand, C binding himself and his heirs to A for the payment.
    B was declared bankrupt and obtained his certificate.
    A applied to the court for leave to discontinue the first action, and to enter an amicable action, which was granted against the consent of B, who nevertheless appeared to it, and pleaded his certificate. The court struck off the the plea, upon A’s agreeing not to take out execution upon any judgment he might recover in that suit against B. They also refused to receive evidence of the certificate upon the trial, and judgment was finally entered against B.
    
      Held that C was answerable under his agreement, notwithstanding the certificate of B and the entry of the action against his consent, and the agreement not to take out execution against him.
    The proceedings in the suit between A and B cannot be examined in the suit between A and C, but must be presumed correct, until the judgment against B be reversed. But if examinable, the entry of the action against B’s consent, the striking off the plea, and the refusal of the evidence under the terms agreed to by A, were right.
    This was an action of covenant, in which the plaintiff declared upon an agreement under seal dated the 28th of April 1800, whereby the defendant covenanted with the plaintiff, that “ in case he should recover any sum of money in an amicable action intended to be brought by him against James Oldden in the Supreme Court of Pennsylvania, in pursuance of an agreement between them dated the 15th of the then present month of April, he the said James Oldden his heirs, executors and administrators should pay the ^amount of the judgment to be obtained in the said action upon demand, to the plaintiff, his heirs, executors, &c.; and for the payment aforesaid upon demand as aforesaid, he the said defendant did thereby obligate himself his heirs, &c., to the said plaintiff.” The declaration then averred the recovery of a judgment of September term 1805 by Bond against Oldden for 7962 dollars thirty-six cents, in an amicable action pursuant to the agreement, whereof the said Oldden had notice, and was required and demanded to pay the amount of the judgment, which he refused to do: that notice of the premises was given to the defendant, who was requested to pay, but he also refused, and so did not keep his covenant, but broke the same.
    
      The defendant pleaded non infregit conventiones, with leave; and under this plea the cause was tried before Brackenridge J. at a Nisi Prius in November last, when the jury found the following special verdict:
    “ And now to wit, &c., the jurors, &c., say,—that on the 28th day of April 1800 at Philadelphia aforesaid, in the county aforesaid, the said John Gardiner junior duly sealed and delivered the deed in the declaration mentioned, prout deed. They further find that the agreement mentioned and refei’red to in the said deed of the said John Gardiner junior, as being dated on the 15th day of April in the year aforesaid, was made and duly sealed, delivered and executed between the said Joshua B. Bond and the said James Oldden on the same day and year, prout deed.” By this agreement Bond was to pay certain notes given by Oldden to John R. Taylor on account of Bond, and which had been discounted at the banks, amounting to 19,300 dollars. He was to take up within sixty days, or give sufficient security to indemnify Oldden against other notes amounting to 7244 dollars sixty-one cents. And upon giving security for the payment of the notes for 19,300 dollars, and an indemnity against the other notes, it was agreed among other things, that an action brought by Bond against Oldden to March term 1800 should be discontinued without costs, and in lieu thereof an amicable action should be entered of the same term, and Oldden or his counsel should sign an agreement to try the action at the next September or *JDeeember term, if possible; and at the time of entering such action, Oldden should give Bond satisfactory security for payment of any sum that Bond might recover, without delay. “ They further find that the said Joshua B. Bond did do and perform all and every covenant, engagement and matter in pais on his part to be done and performed, according to the tenor and effect of the said agreement and deed, of the said 15th April, to the said James Oldden. That the said James Oldden on the day and year aforesaid, and from thence and afterwards until this time, was and hath been a merchant, dealer, and chapman, to wit at Philadelphia in the county aforesaid, getting his living by buying and selling, and being so a merchant, &c., he the said James Oldden, afterwards, to wit on the 29th day of August 1801 at Philadelphia aforesaid, became a bankrupt, within the true intent and meaning of the act of congress, &c.; and afterwards, to wit on the-day of-in the same year, a commission of bankruptcy was duly issued against the said James, and that he afterwards, to wit on the --day of-in the same year, was duly, declared a bankrupt, and did afterwards surrender himself to the commissioners in the said commission named, and did in all things conform himself to the directions of the said act, and did obtain a certificate thereof in due form of law, and an allowance of such certificate as the law requires, proiti certificate and allowance. That on the 18th day of December 1802, an amicable action was in pursuance of the said agreement, so as aforesaid made between the said J. B. Bond and the said James Oldden, regularly entered by and between the said J. B. Bond plaintiff, and the said James Oldden defendant, front record; and in the said action an agreement was filed of record, whereby the said Joshua bound himself not to take out execution on any judgment he might obtain against the goods and chattels, or the person of the said James Oldden, inasmuch as the said action was only to ascertain the amount if any for which the said John Gardiner the younger is or might be liable for or by reason of the said covenant herein before referred to, and dated the 28th day of April 1800, prout agreement.” The amicable action referred to, was not entered voluntarily by Oldden, but on the day mentioned by the jury, the court *upon motion gave leave to discontinue the first action against Mr. Oldden without costs, and ordered an amicable action to be entered as of March term 1800, according to the agreement of the 15th April 1800. “ They further find that the said James Oldden did on the 6th day of March 1805, plead to the said action among other pleas his said bankruptcy and certificate,prout record; and that by order of the said Supreme Court, the said plea of bankruptcy was struck off; and further, that on the 6th day of March 1805, the said action came on for trial before a jury properly empannelled, sworn and affirmed for that purpose, and that upon the trial of the said cause the said James Oldden was ready and desirous to give in evidence, and then and there offered to give in evidence to the court and jury, before which, &c., his having been a merchant, dealer and chapman as aforesaid, and his having become a bankrupt as aforesaid, and his having duly obtained his certificate of conformity as aforesaid-, and of the allowance thereof as aforesaid; but that the said court before whom, &e., refused to permit the said James Oldden to give the said evidence, &e. They further find, that of the pendency of the said action against the said James Oldden, the said John Gardiner junior had full notice, and also had notice at various times of the same being marked for trial, and further that on the same 6th day of March, after the trial of the said action had been proceeded on and some time past in the trial thereof, by consent of all parties and the approbation of the said court a juror was withdrawn, and by like consent all matters in variance between the said parties were in due form of law referred to A, B, &c., or any three of them, prout record. That a majority of the same referees, after fully hearing the parties and their witnesses, did on the 8th of July in the year aforesaid award that there was due from the defendant in that suit to the said J. B. Bond the sum of 7962 dollars thirty-six cents, on which award the said Supreme Court of Pennsylvania, after exceptions filed and the arguments of counsel thereon, did on the 12th day of September in the year aforesaid pronounce judgment thereon in favor of the said J. B. Bond. That on the said 12th day of September in the year aforesaid, notice of the said judgment was regularly given to the sa^ John ^Gardiner junior, and a demand of payment of the amount of said judgment was regularly made on him b}r the said Joshua B. Bond, and the same was refused to be paid by the said John Gardiner junior ; and that on the 14th day of November in the same*year, a demand of payment of the amount of said judgment was regularly made on the said James Oldden, which was refused, and that shortly afterwards the present action was commenced to the term of December 1805, and that the said action has been proceeded in from that period, prout record. But whether on the whole matter, &c., the said John Gardiner the younger ought to be charged by'reason of the covenant aforesaid in the said declaration mentioned, to pay to the said J. B. Bond the damages aforesaid, and the amount of the judgment of the said Supreme Court as aforesaid, &c., the jurors are ignorant, and therefore pray the advice of the court in the premises. And if the court shall be of opinion that the said John Gardiner junior is legally liable to and ought to be charged with the payment thereof, then they find for the plaintiff, and assess damages at 11,029 dollars and eighteen cents with costs. Otherwise they find for the defendant.”
    
      Hopkinson and Levy for the defendant.
    )The plaintiff has neither a legal nor equitable right to recover against the defendant.
    No amicable action was legally entered in pursuance of the agreement between Bond and Oldden of the 15th of April 1800. That agreement amounted but to a promise by Old-den that it should be done, for breach of which Bond might have had a remedy in damages; but it is the first instance in which the Supreme Court ever ventured to enforce an agreement in pais, and with great deference it is conceived to have been an assumption of power most clearly out of the limits of their jurisdiction. The liability of a surety is stricti juris. The right to recover against him in this case depends upon the performance of certain conditions precedent, one of which is the entry of an amicable action. No matter for what purpose it was stipulated, it is sufficient that the stipulation was made. An amicable action, if it means any thing, means a voluntary entry of a suit upon record ; and it cannot *be argued that an action instituted by an order of the to whieli Oldden made the most zealous opposition, and to which he positively refused his assent, can deserve that name. Neither a court of equity nor of law can vary men's wills and agreements, or make wills and agreements for them. 3 Bl. Comm. 435. It would do both to substitute the action that was entered, for the action stipulated in the agreement.
    Another condition precedent to the right of recovering against the defendant was a legal recovery against Oldden. But the recovery against him was merely nominal. Tie pleaded his certificate, and he offered it in evidence. It is impossible to question his right to do it, or the regularity with which it was done. The course of the court was wholly without precedent. They expunge a regular plea, they reject competent testimony, they mutilate Oldden's defence, and yet this is called a recovery against Oldden that is to bind us. Under what authority did the court act? Certainly not a legal one, because no court of law proceeding under the principles of the common law ever thought of such a power. Nor under an equitable one ; because there is no instance of an equitable power being applied to assist a legal claim against a surety. It was done under the influence of the plaintiff's agreement not to take out execution against the person or property of Oldden. This was in law a discharge both of Oldden and the defendant his surety, and is another legal objection to the plaintiff's recovery. If A be bound to B, and B engages to save A harmless, it is a defeasance. Clayton v. Kynaston, 1 Ld. Ray. 419. So a perpetual covenant not to take advantage of a covenant, is a release. Lacy v. Kynaston, 1 Ld. Ray: 690. This agreement then was a perpetual discharge of Oldden, and of course a discharge of his surety. If there is a recovery against Gardiner, he may recover against Oldden, which is virtually in opposition to the terms upon which the judgment was entered against Oldden.
    
      The certificate of bankruptcy obtained by Oldden discharged the defendant, under the thirty-fourth section of the act of congress. It clearly discharged Oldden; and the defendant was neither his partner nor jointly bound with him. He was to answer in the event of a judgment being recovered, and *it never could be recovered. He was to be entitled in equity to the use of the judgment against Oldden for any thing he might pay, and yet in equity the judgment was nothing. After the discharge the plaintiff could not proceed a step against Oldden.
    The plaintiff has lost his recourse to the surety by indulgence to the principal. The action against Oldden was to be brought immediately to March term 1800, and tried in September or December following. No step was taken in relation to the amicable action until December 1802. It was giving further time to the principal, without the consent, and to the prejudice of the surety, and is a discharge.
    If upon the whole the defendant is not liable at law, he is not in equity. A surety who has a legal defence, never can be made liable in equity. The case of Simpson v. Fields, 2 Chan. Ca. 22, in many particulars resembles the present, and may be considered in point. J. S. was indebted to J. 1). by bond in 1000Í. to perform an award, and by the award 250i. was due to the obligee. J. D. put the bond in suit against J. S. A bill was exhibited in chancery for relief against the suit, and an injunction was awarded upon recognizance to abide the ordering on hearing. Eielding the defendant and the obligee were bound in the recognizance, which was penned to pay what should be reported due to N. H. a master, named in the defeasance; but the master died before any report made, and so did the obligor, intestate and worth nothing. The recognizance was not suable at law, because no report was made by the master ; and although the obligee caused the suit in equity to be revived, brought the cause to a hearing and obtained a reference to a master, who reported 800i. due, yet the Lord Chancellor held that the surety was not answerable, because he was not bound at law. The argument there was that the intention of the court in penning the recognizance was not with reference to this or that master’s report, but merely that if the debt was due it might be secured. So it must be here; but the answer is that the claim is against a surety, and it must be supported in every particular at law as well as in equity.
    
      Tod and JRawle for the plaintiff.
    The object of Bond and *01dden their agreement of the 15th of April was to guard each other against the possible insolvency of either, and the respective securities were accordingly given with that view. The argument of the defendant is therefore to make a certain event defeat a security, which was required with'the sole view of guarding that event.
    The objections to the course of the Supreme Court, in ordering the amicable action to be entered, in striking out the plea of bankruptcy, and in refusing the evidence of the certificate, are inadmissible in this suit. The proceedings in the cause of Boud and Oldden cannot be questioned in a collateral suit between other parties. They must be taken to have been right in every particular, until the judgment is reversed. It therefore legally appears by the special verdict, that the amicable action was regularly entered, that the judgment was duly recovered against Oldden, and that he refused to pay." These are all the facts that are necessary to entitle the plaintiff to a judgment against Gardiner.
    But if admissible, the objections have no weight. The agreement to enter an amicable action was undisputed. What impediment then was there to its being enforced by the court? The parties were already in court in a suit with which the agreement was connected. They were subject to the legal control of the court in every thing relative to that suit; and the agreement to enter an amicable action, which is only an action without process, was therefore enforced as part of an agreement in a cause then pending. But the equitable powers of the court would alone have been adequate to the purpose, had the agreement been independent of a subsisting cause. A court of equity would have lent its aid to enforce the agreement specifically. The Supreme Court may go to the same extent with a court of equity, if its common law forms will answer. And no doubt they answered here. In addition to this, Oldden appeared, took defence, went on to trial, agreed to the reference, and filed exceptions. If the amicable action was entered without authority, the error was radically cured.
    The rejection of the plea and evidence of Oldden’s certificate was equally just. The action against Oldden was merely a medium of proof to ascertain the extent of Gar-diner’s liability. No question Gardiner continued liable,
    ^notwithstanding the certificate. The bankrupt law limits the benefit of a discharge to the party dis-
    charged; and notwithstanding Gardiner may sue Oldden, after he pays us, yet this can in no manner affect Bond’s rights, nor has Bond in any way affected Gardiner’s. The agreement not to issue execution against Oldden, however it might estop Bond from proceedings in that suit, has no effect upon the case of Gardiner. It was not a release. The cases from Lord Raymond show that such an agreement will not affect either a joint debtor or a surety. It may be set up in bar by the party with whom it is made, merely to prevent circuity of action; but a stranger or even a joint debtor cannot take advantage of it. A court of equity would have prevented Oldden from setting up his certificate upon the terms stipulated by Bond; and what that court would do, the Supreme Court could under the same circumstances.
    The plaintiff has given no indulgence to Oldden. The action was entered as of the proper term ; and the stipulation for trial was a mere promise not to put impediments in the way. The cause must nevertheless have taken its course, and could not come to trial at an earlier day than it did. Besides, there is no case in which recourse against a surety has been forfeited upon the mere ground of not proceeding with the utmost rigor against him. Vide Wright v. Simpson, 6 Ves. Jr. 734; Rees v. Berrington, 2 Ves. Jr. 540.
    It is not upon equitable grounds alone that we claim to recover against the defendant. There is a clear liability at law, which distinguishes this from Simpson v. Field.
    Tilghmait C. J. did not sit in this cause, having been of counsel with the plaintiff in the suit against Oldden.
   Yeates J.

The defence made against the plaintiff’s recovery, under the facts set forth in this special verdict, is grounded upon a supposed illegal exercise of the powers of the Supreme Court in banc, and also that James Oldden having been discharged by his bankruptcy and certificate of conformity from his liability to Bond, the defendant might avail himself thereof in this suit as fully as Oldden might have done.

^as keen contended in the first instance, that the Supreme Court had no power to direct the entry of the amicable action on the 18th December 1802, whereby the remedy against the present defendant was facilitated; and that Oldden so far from agreeing thereto, opposed the same with all his strength.

It must be observed, that Bond brought a suit against Oldden to March term 1800, upon which the defendant’s appearance was accepted. Subsequent thereto on the 15th April following, the agreement between Bond and Oldden was made; whereby it was stipulated that on Bond’s giving good security to pay certain notes to the amount of 19,300 dollars, and to indemnify Oldden against other outstanding notes to the amount of 7244 dollars and sixty-one cents, certain acts should be done by Oldden and Bond respectively. And it was agreed, that the suit brought by Bond against Oldden shoull be discontinued without costs; and in lieu thereof an amicable action should be entered of the same term, and Oldden or his counsel should sign an agreement to try the action the next September or December term if possible; and at the time of entering said action, Oldden should give Bond satisfactory security for payment of any sum that he might recover, without delay. The jury have found, that Bond did and performed all and every covenant, engagement and matter in pais on his part to be done and performed, according to his agreement. On the 28th of the same month of April, the now defendant entered into an agreement with the plaintiff, whereby he covenanted that in case Bond should recover any sum of money in an amicable action intended to be brought by Bond against Oldden in pursuance of the agreement of the 15th April, Oldden should pay the amount of the judgment to be obtained in the said action on demand, and for the payment thereof Gardiner bound himself to Bond.

The amicable action however was not entered immediately, but the former action proceeded, and on the 1st January 1801, Oldden pleaded non assumpsit and payment with leave, &c.; and on the 29th August following Oldden became a bankrupt and obtained a certificate of conformity. Upon the 27th November 1802 Oldden pleaded his bankruptcy and conformity; and on the 6th December following *a motion was made on the part of the plaintiff to strike off the plea of bankruptcy, upon such proper terms as the court should think reasonable, the action being brought to ascertain the quantum which Gardiner might be liable for; and on the 18th of the same month, another motion was made to strike off that suit, and enter an amicable action, which was granted upon argument, and the action was entered nunc pro tunc by order of the court. The jury find this action to have been regularly entered in pursuance of the aforesaid agreement of the 15th April, and that in the same action an agreement was filed of record, whereby Bond bound himself not to take out execution on any judgment he might obtain, against the goods and chattels or the person of the said Oldden, inasmuch as the said action was only to ascertain the amount, if any, for which Gardiner was or might be liable by reason of his covenant of the 28th April 1800.

Courts are instituted for the advancement of justice ; but it is admitted that they cannot exceed their powers, and that they are bound to administer the laws according to known and established rules. To attain the important objects of their institution, they are often called on to exercise certain inherent equitable powers essentially necessary to the public weal, but which are defined by no positive law. The courts of common law' in England are in the possession and exercise of such powers. An adversary suit was depending in this Court by Bond against Oldden. They afterwards made an arrangement respecting it, and by an instrument under their hands and seals, mutually agreed that the suit already brought should be discontinued, and an amicable action substituted in lieu thereof as of the same term. Over suitors in court in actions depending, it will not be denied, that the courts exercise a control, preventing them from eluding their fair engagements made either by themselves or their counsel. Why then should not this Court enforce the agreement of the 15th April, so far as it respected the action before brought? What injury or injustice did their interposition effect? The members of this Court unanimously granted the motion made by the plaintiff’s counsel on the 16th December 1802, after full argument, and I see no ground to alter the opinion which I then formed. It is freely conceded, that neither a court of Ieiw or equity can vary or change the *s°lemn contracts of parties ; but the decision in this instance, came in aid of the spirit of the agreement, and conformed to the words contained therein ; and if eventually it operated as a medium of proof against G-ardiner, this arose from his own deliberate act.

The amicable action being entered, Oldden appeared by his counsel, pleaded to issue, took a proviso rule, proceeded to trial, consented to the discharge of the jury after being sworn, and to the appointment of referees, and filed exceptions to their report, which were afterwards fully argued. I do not assert that Oldden agreed to the entry of the amicable action at tbe time; but I infer from his subsequent acts, that combined together, they sanction what the court had done, and are equivalent to his consent in the first instance.

It has likewise been contended, that the court had no authority to strike out the plea of bankruptcy and conformity entered in the amicable action. This introduces the question how far the defendant Gardiner could avail himself of the bankruptcy of Oldden? The thirty-fourth section of the act of Congress of 4th April 1800 directs, that a bankrupt who conforms to the provisions of the law, “shall be discharged from all debts by him or her due or owing at the time he or she became bankrupt, and all which were or might have been proved under the commission:” but a proviso follows at the end of the section, “that no such discharge of a bankrupt shall release or discharge any person who was a partner with such bankrupt, at the time he or she became bankrupt, or who was then jointly held or bound with su-ch bankrupt for the same debt or debts, from which such bankrupt was discharged as aforesaid.” This proviso substantially agrees with the words of the British statute of 10 Ann. c. 15 s. 3 ; and the general rule laid down in the books, is said to be, that the allowance of the bankrupt’s certificate does not discharge his sureties. Cook’s Bkt. Law, 580 (3d ed.),—1 Atky. 84; 2 Stra, 1043.

When the plea of bankruptcy was struck out, Bond filed an agreement on record, that if he should obtain judgment against Oldden, no execution should be levied on his property, nor any ca. sa. be issued against his person; aud expressly declared that the proceedings were carried on to ^ascertain the amount, if any, for which Gardiner was liable. Oldden therefore could not possibly be affected by the result; and as to Gardiner, it is found by the special verdict, that he had notice of the suit pending against Oldden, and at various times of the cause being marked for trial, and consequently had it in his power to make defence in the action in which he was so materially interested. Upon the trial Oldden offered to give in evidence his bankruptcy and certificate upon the general issue, which was overruled under the special circumstances of the case. But if his bankruptcy and certificate operated in point of law as a discharge of the liability of Gardiner, those facts are set out in the special verdict upon which the Court are called to deliver their opinions in this suit. In my idea Gardiner is not thereby freed from his responsibility. The act of congress professes to discharge the bankrupt from such debts, as might be proved against him under the commission, but by express words, the discharge does not extend to his surety. To assign that effect to it, would therefore not only be in opposition to the act of congress, but the plain intention of the contracting parties; for it has been truly stated by the plaintiff’s counsel, that their true meaning in stipulating that mutual securities should be given, was to guard against the insolvency of either Bond or Oldden.

As to the orders of court directing the entry of the amicable action and striking out the plea of bankruptcy, I hold, that while the judgment given in that suit remains in full force and un reversed, we cannot collaterally in a new action brought against a different defendant, declare it to be illegal and of no effect. Omnia prcesumuntur esse rite acta in curia.

It is further set out in the special verdict, that on the day of rendering the judgment, notice thereof was regularly given to Gardiner, and a demand for the payment of the amount was regularly made on him by Bond, which was refused by him: And likewise on the 14th November in the same year, a demand of payment of the amount of the judgment was regularly made on Oldden, which was refused also, and that shortly afterwards the present action was commenced.

On the whole matter I am clearly of opinion, that the '^present defendant has violated his contract both in terms and spirit, and that judgment be rendered for the plaintiff for the damages assessed by the jury.

Brackenridge J.

I would have taken it that the terms of the agreement of the 15th April 1800 would have been answered by a proceeding under the action as it was originally entered ; for the word amicable is not of substance, the meaning being an action to be entered. Whether amicable or adverse could not be material, and was used only as that was the form of action that was then contemplated; but ex majori cautela and to avoid exceptions, it was discontinued, and the term amicable entered in the form of the new action, to which entry of the action it is alleged that the defendant in that action named did not consent. But the court, on hearing, so ordered it, which under the circumstances of the case they conceived themselves to have the power to do. This I take it cannot now be controverted. But if it could, the appearance of the defendant to the new action is a rati habitio, and amounts to an assent originally given.

The plea of bankruptcy was sustainable under the act of congress so as to arrest any process that would affect the person of the defendant or his creditors, but not further, these being the objects of the act; and these objects being secured by the stipulation or docket entry that the judgment that might be obtained should not affect as a lien, or ground process of execution, against the personal property of the defendant; the object being only in the nature of an issue joined, to ascertain what sum if any had been due and owing from the defendant before his bankruptcy, and which the defendant in the present action, had agreed to pay. The act of congress, neither on principle or terms, interposed any difficulty in the way of this. There could be nothing in the way of such stipulation, or docket entry, but that in consequence the defendant in the present action could not have the benefit of the lien under the judgment obtained, the equity of which would result to him on his paying the amount to Bond. But this seems not provided for by the agreement of the 15th. For the word recover, cannot in the technical sense be taken to mean satisfaction of the judgment. For in that case the defendant’s engagement to pay, would be to pay what in that case would already have been paid. The word. *recover is coupled with the word judgment, and refers to it; the judgment that he shall recover, are the terms. There is a recovery of a judgment, the suit having gone on for this purpose, and for nothing else.

From the earnestness with which the counsel on the part of the defendant would seem to have pressed the defence, and the disposition to avail themselves of all defect of form which technical subtlety might warrant, I would infer that there is an impression in their minds, from something in the case that does not appear, and cannot judicially be brought into view, that there was some unfairness on the part of the plaintiff in drawing the defendant into the agreement. But this not appearing to the Court, cannot be considered, or warrant a defence that does not spring from the merits of the case; and of this nature I would take the objection to the entry of the action, plea of bankruptcy, &c., to be.

Judgment for plaintiff.  