
    Blanton v. Brackett & al.
    [October, 1804.]
    Chancery Practice — Allegations in Bill Denied by Answer. — If the agreement stated in the bill be denied by the answer, the latter must be disproved, or the bill will be dismissed.
    Blanton filed a bill in the high court of chancery stating, That he had given a bond to the defendant Brackett; upon which there was, in March 1797, a balance due of .£59. 19. 2. That there was an action of slander depending, at that time, in the district court between Anglea and the defendant Brackett; who expected that some damages would be recovered against him in it. That Anglea, being indebted to the plaintiff, agreed that if the plaintiff would wait until that cause was decided, he should have the benefit of the judgment which should be obtained against Brackett; who agreed that it should be discounted against the plaintiff’s bond aforesaid. That the plaintiff accordingly ''waited with Anglea until the suit was ended. That Anglea recovered £100 damages against Brackett, and assigned the judgment to the plaintiff; but that Brackett had, in the mean time, become insolvent; and had made a secret transfer of the plaintiff’s bond to Redd, without any consideration, although the latter had notice of the before mentioned agreement between the plaintiff, Anglea, and Brackett, by an advertisement in the newspapers. That Redd, finding the transfer would be of no use, procured a secret assignment of the bond, likewise without any consideration, to Miller; who also had notice of the agreement aforesaid. That Miller, acting in concert with the other parties, has brought suit and obtained judgment in his own name upon the bond; but, in fact, for the benefit of Brackett, in order that the latter might avoid payment of Anglea’s judgment. The bill therefore prays for an injunction to Miller’s judgment.
    The answer of Brackett denies the agreement as to Anglea’s judgment; and states that, prior to the judgment, he had, for a valuable consideration, transferred the plaintiff’s bond to Redd; at whose request, he afterwards assigned it to Miller, who was a creditor of Redd; and that the defendant has no interest in the bond.
    The answer of Brackett admits the advertisement in the newspapers, but denies notice of the agreement relative to Anglea’s judgment; and that the defendant does not believe that it existed. That the defendant refused to take the bond from Brackett, who was indebted to the defendant, until he could enquire of the plaintiff how much was due upon it, and when payment would be made. That the plaintiff acknowledged that the balance aforesaid was due upon the bond, and affirmed that he would pay it shortly. In consequence of which he accepted the transfer, and had the bond assigned to Miller, to whom he was then indebted; but has since paid him, and therefore has become entitled to the benefit of the judgment on the bond.
    *The answer of Miller disclaims any knowledge of the transactions between the other parties; declares that Redd was indebted to him at the time of the assignment; that the plaintiff often promised payment; but failed to make it, and therefore he brought suit upon the bond. That Redd has since paid him; and therefore is now entitled to the judgment.
    Depositions of witnesses were taken on both sides; and the court of chancery dismissed the bill upon a hearing. The plaintiff appealed to the court of appeals.
    Randolph, for the appellant.
    The bill charges an agreement to discount the judgment; and, although the answer denies it, the denial is disproved by two witnesses. Redd had notice of the agreement before the assignment; and Blanton, having never renounced the right to discount, is still entitled to claim it.
    Hay, contra.
    There was no contract for the discount. Brackett denies it; and his answer, so far from being disproved, is supported by three witnesses. Contracts for discounts are not good under the act of assembly; particularly against an assignee; who is affected by nothing, but an equity existing at the time of making the bond ; or an actual payment before the assignment.
    Wickham, on the same side.
    The answers deny the plaintiff’s equity; and they are not disproved: But before the complainant can claim the discount, he must prove the agreement for it. This is not done; and it is improbable that such a contract existed ; for nobody would think of stipulating to wait for the chance of damages to be recovered by an action of slander, in discharge of an actual debt, already payable. The pretended discount was therefore an after thought; and was never contracted for.
    *Randolph, in reply.
    The agreement is not only proved, but is valid in equity; and there ought to have been an issue to ascertain it. 1 Ch. Cas. SO. The defendant had cause to suspect the plaintiff’s right, and ought to have enquired into it.
    Cur. adv. vult.
   TUCKER, Judge.

The charges in the bill, so far as they are material to entitle the complainant to relief against the defendants, are flatly denied by the answers. Brackett denies any agreement between the plaintiff and himself as to the eventual damages which Anglea might recover against him; and although there is the testimony of three witnesses, which may induce some belief that an agreement of that kind might have been contemplated, yet as there was then no existing debt due from Brackett to Anglea at any time .previous to the assignment to Miller, nor any proof that Anglea was a party to, or had assented to any such agreement, admitting that there was such an one between Brackett and Blanton, it might have been retracted; for Anglea had no certain demand against Brackett, which was capable of being set off against an existing debt, until after the judgment, which was two or three months subsequent to the'assignment to Miller for the use of Redd. It was incapable of assignment both in law and equity: and, if such an agreement was made, as is pretended, between Anglea and Blanton, without the previous assent of Brackett, I should think it maintenance. And, even, if, after the judgment, Anglea had made an assignment of it before any replevin or forthcoming bond was given (which bond,s our law makes assignable,) such an assignment, I apprehend, would not have been legal, but merely an equitable discount against the bond. On this however I give no opinion, being clearly of opinion that, until Anglea obtained judgment, no agreement, in respect to the damages which he might possibly recover, could affect the assignee of Brackett, unless there were some fraud between those parties. And although the defendants *are expressly charged with a fraudulent combination to defeat the complainant’s right to a discount for these damages, yet the circumstance is positively denied by all the parties, and there is not that I can discover, a tittle of evidence to support the charge, although there is abundant to rebut it. As against Redd and Miller the complainant is not, in my opinion, entitled even to the shadow of relief. Nor has he established his case so far even against Brackett, as to induce me to think differently from the chancellor. Taking the whole evidence together, I concur with him in opinion, that the allegations of the bill being denied by the answers, are not supported by the testimony; and therefore that the bill was rightly dismissed.

ROANE, Judge.

The agreement relative to Anglea’s judgment is denied by the answer; which is supported by other testimony, and not disproved by Blanton’s witnesses. The contract is novel and improbable; and, upon the whole, I am for •affirming the decree.

EEEMING and CARRINGTON, Judges, concurred; and the decree was accordingly affirmed. 
      See Floyd v. Jones, 19 W. Va. 859.
     