FISH . MORSE.

the commissioners could not pass upon, they can not afterwards object that the issue is too broad. The case is then to be treated as the voluntary joining of a new issue in the Circuit Court, and to be proceeded in without regard to the proceedings before the commissioners, or the appeal.

CAMPBELL J. But have you not here a fatal misjoinder of counts?

Millerd: The declaration is from a form in Chitty's Pleadings, and the same form is found in Tillinghast. We submit that judgment against defendants on the second count would be judgment de bonis intestatoris.

Beecher & Howell, and T. M. Cooley, for defendants in

error.

MANNING J.:

It appears from the report of the commissioners to the Probate Court, that the claim disallowed by the commissioners was a promisory note for $5,000. In making up the issue in the Circuit Court, the plaintiff filed a declaration containing two counts, instead of one. The first count is on a promise made by the intestate in his life-time, and the other on a promise made by the administrators on an account stated after the death of the intestate, between plaintiff and the administrators.

A copy of the note, with notice that it would be given in evidence on the trial, was attached to the declaration.

The first count, with a copy of the note attached to the declaration, was all that was necessary to put in issue the claim that had been passed on by the commissioners, and the second count may be regarded as surplusage merely. It is moreover defective on its face, as it does not show a valid claim against the estate of the deceased.

Under our probate system, all claims against the estate of a deceased person, when commissioners have been ap

FISH C. MORSE.

pointed to hear and adjust such claims, are to be presented to, and to be allowed by them. The estate is not bound by any account stated with the administrator.

Had the jury, therefore, found for plaintiff on the sec ond count, and assessed damages in her favor, it would have been the duty of the court to render the judgment it did, notwithstanding such finding, as they had found for defendants on the first and only count in the declaration that set forth a valid claim against the estate.

The judgment must be affirmed with costs.

MARTIN CH. J., and CAMPBELL J. concurred.
CHRISTIANCY J., was absent.

William Hale v. Silas M. Holmes and others.

A bill in Chancery cannot be sustained to compel a vendor to receive his own paper on the contract of sale, when he has not agreed to do so, and the purchaser has not bound himself to take and pay for the property.

Nor will equity compel a set off of the vendor's debt on the contract of sale, in such case, since there is no contract on the part of the purchaser against which to allow it. It is at his option to purchase the property or not; but, if he do so, he must pay for it in accordance with the contract of sale.

The insolvency of one party, even in the case of mutual credits, is not of itself sufficient to authorize an equitable set off.

Where a party receives a compromise note from his debtor, with collateral security, agreeing that if paid when due the original debt shall be discharged, otherwise of force, and after the compromise note comes due and is unpaid, sells and transfers the same with the collaterals and the original debt, he thereby confirms the compromise; and, the purchaser cannot claim the amount of the original debt on the ground of forfeiture of the compromise agreement before he purchased.

And, where the collateral security in such case was the note of the purchaser, which became due before the compromise note, and was relied upon to pay the compromise note-Held, that the effect of the purchase was a payment of the compromise note by the said note of the purchaser, and that he had no claim, at law or in equity, upon the original debt.

Heard January 5th. Decided January 9th.

Appeal from Wayne Circuit in Chancery.

From the pleadings and proofs, it appears that on May

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13th, 1858, the defendants, composing the firm of Holmes. & Co., were indebted to Waldo, Barry & Co., of New York, in the sum of $5,576 19, besides interest, upon four promisory notes; and being embarrassed in their circumstances, entered into an agreement with them for a compromise of the demand for $2,949 97, for which amount they gave their note at eight months, and turned out as collateral security to it, a note against complainant of $2,500, dated February 15th, 1858, payable six months after date, and secured by mortgage. For this compromise note and collateral security, Waldo, Barry & Co. gave a receipt, in which they agreed that if the compromise note was paid at maturity, the four original notes and the security were to be given up, but otherwise to remain in full force.

Previous to this time, on January 16th, 1858, complainant made a bargain with defendants for a mortgage they held upon the furniture of the Russell House, Detroit, given by W. H. Russell, to secure $16,000; and they gave complainant a writing in which they promised that on his paying $9,000 in four equal semi-annual instalments, they would assign him this mortgage. Complainant paid the first of these instalments, but did not pay the second when it came due, nor his note of $2,500, so turned out to Waldo, Barry & Co.; nor did defendants pay their compromise note when it matured.

On December 21st, or 22d, 1858, one of the members of Holmes & Co. called upon Waldo, Barry & Co., and stated to them that, in consequence of complainant failing to make his payments, the former were not able to meet their compromise note, and asked W. B. & Co., to wait upon them for thirty days longer. Holmes & Co., claimed that this request was assented to, W. B. & Co.

but this was denied by

January 12th, 1859, complainant called on Waldo, Barry & Co., and said he had not been able to pay his note when it matured, but that a friend would furnish him the money

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to buy up the Holmes & Co. notes, and the securities; and proposed to make the purchase. This was assented to by W., B. & Co., and on complainant paying $3,000 therefor, the four original notes, together with the compromise note and the collaterals, were transferred to complainant by an instrument in writing, "subject to all the rights and equities in favor of Holmes & Co., in the hands of said Hale and his assigns as they" were "or would be in" the hands of Waldo, Barry & Co., if they "had retained them instead of selling them to said Hale." In this writing was set out a copy of the compromise agreement with Holmes & Co. Waldo, on being subsequently inquired of by Holmes & Co. why this was done, replied that "Hale had told them he could keep Holmes & Co. out of their money for two years, and he would not be bothered any further with it."

January 24th, 1859, Hale called on Holmes & Co., and offered to pay the amount due towards the purchase of the Russell chattel mortgage, by applying the same on the said four original notes of Holmes & Co., which the latter refused. He then filed his bill in chancery, alleging the insolvency of Holmes & Co., and praying that they be decreed to apply on said purchase the amount of said four notes, or so much as would be necessary to satisfy the instalments past due on said purchase; and that they be enjoined from proceeding to collect such chattel mortgage.

The Circuit Court made decree substantially as prayed by complainant, applying on said four notes complainant's note of $2,500, and the amount past due on said contract for the purchase of the chattel mortgage. Defendants appealed.

W. Gray, for defendants:

The compromise agreement was at an end, and the four original notes in full force, on the failure to pay the compromise amount. If Waldo, Barry & Co., or Hale as assignee, did not return the collaterals, the most Holmes & Co. could claim would be that they be applied at their

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face, upon the original indebtedness. Retaining and applying them does not continue the compromise agreement. McClung v. Lyster, 3 Green (Iowa) 182, 185. It would be a useless ceremony for Hale to return to Holmes & Co. his own one note which they would again have to restore.

G. V. N. Lothrop, for defendants:

Hale, by his own wrong in not paying his note, aided in producing the default of defendants to pay their compromise note. And equity will not permit him to take advantage of the default.-2 Story Eq. Juris., § 1304; 22 Conn. 513; 21 Vt. 469.

The condition in the compromise agreement was in the nature of a penalty to secure the payment of the compromise amount. Equity will not aid in the enforcement of a penalty:-2 Story Eq. Juris. §§ 1319. 1321; 4 Johns. Ch. 415; 22 Conn. 513; 21 Me. 251; 2 Johns. Ch. 526: but will ordinarily give affirmative relief against forfeitures depending on time merely:-23 Vt. 576; 2 Barb. 37; 29 Me. 351; 8 Paige 425; 6 Wheat. 528; 11 Paige 353; 4 Scam. 202. Equity gives relief against conditions precedent and subsequent, and will not, by an oppressive and unconscientious advantage taken under them, suffer a right to be defeated.—2 Conn. 299; 1 Edw. Ch. 394; Wal. Ch. 405; 1 Fost. 149; 29 Vt. 358; 4 R. I. 225. Delay may amount to a waiver of condition -32 Me. 394; 33 Eng. L. Eq. 133. Or acts inconsistent with rescision by the party who has a right to rescind.-28 Miss. 114; 12 Barb. 440. Waldo, Barry & Co. could not abandon the compromise, and still hold and sell the compromise securities. — 13 Ill. 611; 4 Fost. 278; Ibid. 282; 8 Paige 606; 2 Hill 288; 5 Hill 390; 5 Barb. 319; 3 E. D. Smith 269; 34 N. H. 556; 4 Mich. 508.

This was not a case for equitable set off. 2 Story Eq. Juris. § 1435; 2 How. 390; 27 Ala. 507; 1 Cr. & Ph. 161; 10 Paige 369; 2 Barb. 589; 5 Mason 201; 2 Sumn. 628.