and pay all the rent, carpenters', painters' and plumbers' bills, for supplies, and all other bills and debts contracted for and on account of said firm business. Now if said Bennett shall pay the same and hold said Amos harmless on account, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue. Nothing herein shall be construed to prevent said Bennett from contesting claims which he may deem improper." Bennett was defaulted; and Haynes alone defended.

At the trial in the Superior Court, before Wilkinson, J., it appeared that the plaintiff and Bennett, as copartners, established an eating-house; that, in fitting it up and carrying it on, Bennett contributed about $600, and the plaintiff contributed nothing, and they contracted debts to the amount of $2700 or more; that they carried on this eating-house about two months, still owing these debts, when they dissolved the partnership, and the bond in suit was then given; and that the plaintiff, having no attachable property, on January 12, 1875, executed an assignment of the bond to his creditors, "as security for my indebtedness to said parties;" and delivered the bond and assignment to the attorney of the creditors, who had since retained them.

The plaintiff testified that he borrowed a check for the amount of the debt to certain of his creditors, giving his note for the same, for the purpose of paying the debt, and passed the check to them in payment of the debt, but whether this was before or after he made the assignment of the bond he did not remember; and that, after he made the assignment, he gave his promissory notes, payable on demand, to other creditors, one to each for the amount of his debt. He also produced the bill of one of them, which bore the word "settled" written over the signature of an attorney, as the receipt he took on giving his note for that debt, and testified that he believed he got the same kind of receipts from the rest of the creditors, on giving them notes as above stated; and those creditors testified at the trial that they ap proved the settlements by notes.

The plaintiff further testified that payment had not been de manded or made on either of the above mentioned notes, and that he and Bennett examined all these bills and found them correct. Haynes testified that he had paid the bills of several other creditors of Amos & Bennett.

The plaintiff contended that there had been a breach of the bond; and the judge, by request of the plaintiff, directed the jury to assess the sum due if they found a breach.

The defendant Haynes asked the judge to rule that, it appearing that the plaintiff had parted with all interest in the bond, and there being no evidence that the plaintiff ever paid any of the debts before he assigned the bond, there had been no breach; that the bond could not be prosecuted in the plaintiff's name for the benefit of creditors of Amos & Bennett; and that damages could not be assessed for the payments made by notes of Amos to creditors.

The judge refused so to rule, and instructed the jury that the mere fact that the bond was assigned would not prevent the action being maintained either for the benefit of the plaintiff or for the benefit of the creditors whose claims had been settled by the plaintiff; and that if payment had been made by note and check, such payment by note, where satisfaction was acknowledged, would be sufficient and equivalent to cash.

The jury returned a verdict for the plaintiff in the sum of $1001.36, being the amount of the money paid and notes given, and interest; and the defendant Haynes alleged exceptions.

T. L. Livermore, for the surety. 1. The money actually paid is the measure of damages, even if judgment is suffered for the balance. Valentine v. Wheeler, 122 Mass. 566. The only exception to this is where negotiable notes are given. There was no evidence in this case that the notes given by the plaintiff were negotiable. Giving a bond for the debt of another, even where it is accepted as payment, will not warrant a verdict in an action against that person for money paid to his use, or for con. tribution. Taylor v. Higgins, 3 East, 169. Maxwell v. Jameson, 2 B. & Ald. 51. Cumming v. Hackley, 8 Johns. 202.

2. It was error to rule that a recovery could be had for the benefit of the creditors. Wallis v. Carpenter, 110 Mass. 347. Valentine v. Wheeler, ubi supra. The bond was assigned to the creditors as security for the original debts. Those debts were paid by the plaintiff's notes after the assignment. No contract in evidence put the bond in the creditor's hands as security for these notes, and therefore the creditors had no interest in the Dond, or right of recovery thereon.

3. No recovery could be had for the plaintiff's benefit, because he paid without demand on him, and without receiving an assign. ment of his bond, to which he was entitled. The payment was then a voluntary one, on account of which he was not entitled to indemnity. Skillin v. Merrill, 16 Mass. 40. Munroe v. Easton, 2 Johns. Cas. 75. Furthermore, the last clause of the bond, to wit, "Nothing herein shall be construed to prevent said Bennett from contesting claims which he may deem improper," controlled every other provision which would otherwise have permitted the plaintiff to pay without demand on the defendant Bennett. No such demand was made on Bennett, either by the plaintiff or his creditors. This clause was as much for the protection of the surety as of Bennett, and ought to be given every possible effect for the benefit of the surety.

C. H. Chellis, for the plaintiff.

LORD, J. There seems to be no valid objection to the several rulings in this case. The case finds that Amos paid several debts, against the payment of which the bond in suit was given to him as an indemnity. In one case he borrowed the money, or a check upon which he was to receive the money, and paid the debt with the proceeds of the loan. In other cases he gave his notes, which were accepted as payment. In this Commonwealth, a negotiable promissory note given for a debt is, in the absence of all proof, payment. A non-negotiable note is not payment. The defendant objects that it does not appear that the notes were negotiable. It is the duty of the excepting party to make it appear that the exception is well taken. If a bill of exceptions is capable of two constructions, equally consistent with the other facts stated in the bill, the construction which sustains the ruling is to be deemed the true one. It is enough to say that it is, at least, as probable that the notes given were negotiable, as that they were non-negotiable. No question upon this point appears to have been made before the presiding jus tice at the trial; and it is not to be presumed that a rule of law so familiar was overlooked by the court and by the parties; but rather that the point is now first raised here, upon the discovery that the bill of exceptions is susceptible of two constructions.

Nor can the objection, that the payment by Amos was a vol untary payment, prevail. The case from our own reports, Skil

lin v. Merrill, 16 Mass. 40, cited by the defendant in support of the objection, is decisive against it. In that case, payment was made by the surety before the liability was fixed, and the cosurety had made arrangements for the surrender of the principal, by which he would be relieved from all liability. In deciding it, Chief Justice Parker says: "In the case of a voluntary payment of money actually due, to avoid a suit, there is no doubt that he who pays the money may compel his co-surety to contribute." In the case at bar, it is found that the several amounts paid were absolutely due. The fact that the bond was assigned is an immaterial fact. Suit must be brought in the name of the assignor, and all defences are open to the defendant. There is no claim made that the bond had been released, discharged or satisfied. The only claim made is that the legal effect of the bond may be different from what the defendant expected when he entered into the obligation. Of course, this objection cannot prevail. When a party affixes his name to an obligation, he is bound by the legal construction of such obligation, not by any other construction which he attaches to it. If Amos had borrowed of a third party money for the special purpose of paying the debts of the partnership of Amos & Bennett, upon which he was liable, and with such money had paid the debts, there is no rule of law which would prevent the assignment of the bond to the lender as collateral to the loan. Between such a transaction and the facts in this case there is no difference in principle. Exceptions overruled.

IRA BLANCHARD vs. WILLIAM R. MCKEY & another.

Suffolk. March 12. July 29, 1878. COLT & SOULE, JJ., absent.

In an action by the mortgagee of personal property against the mortgagor's consignee, who, after the date of the mortgage, in good faith received the property and made an advance thereon, the defendant offered to show that the mortgage was made with intent to defeat and defraud the creditors of the mortgagor, and to keep the property from coming into the hands of such creditors, and that the plain. tiff shared in this fraudulent intent;" also "that, at the time the mortgage was given, the mortgagor was insolvent, and was indebted to the plaintiff, and the mortgage was made with intent to prefer hin, and the plaintiff knew this." Held hat a ruling, that the first offer was immaterial, was erroneous.

TORT for the conversion of a lot of leather and shoe stock. At the trial in the Superior Court, before Wilkinson, J., the plaintiff put in evidence tending to show that on March 10, 1875, the property in question was owned by and in the posses sion of Knowlton and James, a firm doing business in Boston, who on that day mortgaged it to the plaintiff, to secure a preëxisting debt and a sum of money then lent, the mortgagors having the right to "sell in the ordinary way of trade;" that this mortgage was duly recorded on the day it was given; that on March 10 or 11, but not until after the mortgage was given, Knowlton and James were unable to meet their business paper, failed and subsequently went into bankruptcy; that on May 1, 1875, the plaintiff demanded the property of the defendants, but they refused to give it up.

The defendants, who also did business in Boston, offered to show that on March 11, 1875, Knowlton and James consigned the goods to them, and that they, in good faith and without knowledge of the mortgage to the plaintiff, advanced $940 to Knowlton and James on the consignment.

The defendants also offered to show that the mortgage, under which the plaintiff claimed title, was made with intent to defeat and defraud the creditors of Knowlton and James, and to keep the property from coming into the hands of such creditors, and that the plaintiff shared in this fraudulent intent; that, at the time the mortgage was given, Knowlton and James were insolvent, and were indebted to the plaintiff, and the mortgage was made with intent to prefer him, and the plaintiff knew all this; that within one month thereafter, Knowlton and James filed their voluntary petition in bankruptcy, and their bankruptcy proceedings are still pending; that the defendants had no reason to believe, and did not believe, that the consignment to them was made with intent to interfere with or in any way evade the provisions and purposes of the bankrupt act; and that on May 12, 1877, the assignees in bankruptcy of Knowlton and James made an assignment to the defendants of all their rights to the property in question.

The judge ruled that these facts would not entitle the defend. ants to defend against the plaintiff's claim; and directed a ver dict for the plaintiff. The defendants alleged exceptions