
    * John Chandler versus Jonathan Windship.
    Where a promissory note was to deliver specific articles of merchandise on demand, and before any demand made the promisor became bankrupt, the proof of the debt before the commissioners was equivalent to a demand on the promisor, and no certificate having been obtained by him, he was held liable in an action upon the note.
    Assumpsit on a note in writing, by which the defendant promised the plaintiff to deliver him thirty-seven barrels of beef on demand.
    On the general issue pleaded and joined, the action was tried before Parker, J., at the last November term, when a verdict was taken for the plaintiff by consent, subject to the opinion of the Court upon the report of the judge who sat on the trial.
    From the report it appears that the defendant made the note declared on, but that there had been no demand for the beef, unless the following facts do in law amount to such demand, vis., that, within four years from the making of the note, the defendant became a bankrupt, and was duly proceeded against as such, but never obtained a certificate; that the plaintiff exhibited the note in question to the commissioners who had before them the case of the defendant, having made oath, “ that the defendant was and is justly indebted to the plaintiff in the sum of 411 dollars, for money had and received, and for which sum he has received no satisfaction nor security but the said note,” and the said claim was accordingly allowed by the commissioners, and a dividend ordered thereon which dividend was not received by the plaintiff before the commencement of the present action.
    And it was agreed by the parties, that if the Court should be of opinion that the facts aforesaid are in law equivalent to a demand on the defendant, judgment should be entered on the verdict; otherwise the plaintiff should become nonsuit.
    At this term, Sullivan, for the defendant, moved the Court to set aside the verdict, and he argued that, until a demand made, no right of action existed ; there was no breach of the promise made by the defendant; and the plaintiff had no right to prove his debt under the commission.  But if this were not so, the plaintiff [*311 ] did not demand a performance * of this promise before the commissioners. His demand was for money had and received; and he stated the precise sum due him. And whether he had, or had not, a demand provable before the commissioners, still, to support this action against the defendant, he is bound to show a demand upon him, which is necessary to give him a cause of action upon this promise.
    
      Ward, for the plaintiff,
    contended that the necessity of a demand upon the defendant in this case was superseded by his bankruptcy. The assignee of his effects represented him ; and the demand was sufficiently made upon the assignee. For though the plaintiff reduced his claim to its value in money, he exhibited, and relied on, this note as evidence of his demand. It was the assignee’s duty to know all the demands made under the commission, and to contest such as were unfounded.
    The opinion of the Court was afterwards delivered by
    
      
       3 D. & E. 539. — 4 D. & E. 570.
    
   Parsons, C. J.

The plaintiff contends that the facts in this case either prove a demand, or render a demand unnecessary, as the assignee must be considered as representing the defendant, and acting as his agent. The defendant has urged that this debt was not provable under the commission, and, therefore, that the assignee cannot be considered as the defendant’s agent or representative ; and if the debt could be proved under the commission, yet the submitting of the claim to the commissioners, and an allowance of it by them, will not dispense with a demand on the bankrupt, so as to authorize a suit at law against him.

By the English statutes of bankruptcy, it seems to be settled that no debt can be proved, the amount of which must be ascertained by a jury ; for those statutes provide for no jury to decide between a creditor and the assignees.

The consequence of this principle, arising from the provisions of those bankrupt laws, frequently produced hardships to those creditors whose demands required the intervention of a jury to ascertain the amount.

* To guard against this inconvenience, our national [*312] statute of bankruptcy [<§> 58] expressly introduced a jury, to decide in all cases between a creditor and the assignee, if either party required it.

The debt arising from the note in the case at bar is, therefore, in our opinion, one which might be claimed from the estate of the defendant, and consequently might be received and allowed by the commissioners, or by a jury, if either the plaintiff or the assignee requested it. The debt being, therefore, within our act, we are satisfied that the claim being submitted to the commissioners, and which might have been resisted by the assignee, who might have required the verdict of a jury to establish it, is equivalent to a demand on the defendant. A demand on him would have been fruitless, as all his property was out of his control, and vested in the assignee, who held the estate in trust, as well for him as his creditors, to pay his debts. The assignee, having the fund, was the proper person on whom the demand ought to be made, and the submitting of the claim to the commissioners was the making of the demand on the assignee.

Agreeably to this relation between the bankrupt and his assignees, it was determined, in the case of Jackson vs. Fairbank, that when there were two joint promisors of a note, one of which having become bankrupt, and a dividend on the note paid under the commission, this payment took the case out of the statute of limitations, the acknowledgment of the debt by the assignees being considered as an acknowledgment by the bankrupt, one of the promisors.

On these principles the verdict appears to us to be right, and the plaintiff is entitled to judgment upon it. 
      
       4 D. & E. 570.
     
      
       2 H. Black. 340.
     