MACE V. WELLS, 48 U. S. 272 (1849)

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U.S. Supreme Court

Mace v. Wells, 48 U.S. 7 How. 272 272 (1849)

Mace v. Wells

48 U.S. (7 How.) 272


By the fifth section of the United States Bankrupt Act, 5 Stat. 444, the surety upon a promissory note had a right to prove the demand against the maker, who became a bankrupt, and by the fourth section the bankrupt was discharged from all debts which were provable under the act.

Therefore, where the surety paid the note to the creditor, after the discharge of the bankrupt, and brought suit against the bankrupt for the amount, he was not entitled to recover it. chanrobles.com-red

Page 48 U. S. 273

The following statement of facts was argued upon by the counsel in the court where the cause was originally tried.

"Orange County Court, December Term 1844"


"Action of Assumpsit for money paid"

"The parties agree to the following facts in this case: that the plaintiff signed two notes with the defendant, of the dates and tenor following:"

"$35.00 Wells River, July 9, 1840"

" For value received, I promise to pay Hiram Tracy, or order, thirty-five dollars, in four months, with interest annually."



"$157.48 Wells River, August 14, 1840"

" For value received, we jointly and severally promise to pay Hutchins & Buchanan, or order, one hundred and fifty-seven dollars and forty-eight cents, in one year, with interest annually."



"Said first note was paid by said Wells to said Tracy on 12 July, A.D. 1841. Said note was given for the sole and proper debt of said Mace, and Wells signed only as surety, and the whole was a mere matter of accommodation on the part of Wells."

"Said second note was given also for the proper debt of said Mace, and was his to pay. Wells was only surety for said Mace, although the note was 'jointly and severally,' and had no interest or part in the debt. Said note was paid by said Wells on 6 March, A.D. 1844, being at that date the sum of one hundred and ninety-four dollars and eleven cents. Said Wells has kept both said notes since they were so taken up by him, and they are now in his custody."

"That after their signing of said last note, and before the payment of the same, but subsequent to the payment of the first by said Wells, said Mace duly obtained a discharge of his debts as a bankrupt in pursuance of the provisions of the Act of Congress passed August 19th, 1841, commonly called the 'Bankrupt Law.' Said Mace's certificate is dated March 22, 1843, a copy of which is annexed, and made a part of the case."

"It is agreed the court shall give the same effect to said discharge as if the same were specially pleaded."

"Now if the court shall be of the opinion that the plaintiff is entitled to recover on the foregoing facts, judgment is to be rendered

Page 48 U. S. 274

for him to recover of the defendant the amount of said notes, or either of them, as the court shall adjudge, and his cost -- if for both notes, the sum of $248.93; if for the small note, $45.12; if for the large note, only $203.81; if for neither, then defendant to recover his cost."

"A. UNDERWOOD, Defendant's Attorney"

"J. W. D. PARKER, Plaintiff's Attorney"

At December term, 1844, on the foregoing case stated, the court rendered judgment for the plaintiff to recover of the defendant $203.81 damages, and his costs. The defendant excepted to the opinion, and the case was carried to the Supreme Court of Judicature, where the judgment of the court below was affirmed.

A writ of error, issued under the twenty-fifth section of the Judiciary Act, brought the case up to this Court. chanrobles.com-red

Page 48 U. S. 275


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