We are not able to discover any error in the ruling of the judge below.
The motion shows, that, at the time of the failure of Bezaleel Sexton, on the 9th day of June, 1851, he was indebted to the plaintiffs, to the amount of the note in question, for wool before that time sold. At the time of the sale, he gave them a bill of exchange, which is dishonored and remains unpaid. Sexton, having numerous creditors, they undertook to compromise their respective debts, and according to the defendant’s claim, one Scoville, who had the dishonored bill in his hands, in some capacity or other, was, it is said, present and active in bringing about the compromise, as the representative of the plaintiffs’ debt. It does not appear that Sexton was able to fulfil the compromise on his part, or that it ever took effect, as to any of the creditors. However, before the deed, designed as the instrument of compromise, was executed by Scoville, it is said he refused to sign it, until Sexton, by a secret promise, gave him an advantage over the other creditors, securing to him an earlier payment of the seventy-five cents on the dollar, which the creditors had agreed to take, than to the others. The note is said to have been given to carry out this preference, or favoritism, with the full *561knowledge and concurrence of the plaintiffs. This is claimed to render the note fraudulent and void, as unfair and unequal.
We have no occasion to decide what is the precise principle of law, contended for by the defendant, nor whether any principle of the kind could benefit the defendant, because we are of the opinion that the defendant, under the circumstances, may not avail himself of such a defence. The maker of the note had a right to have it paid, if it was his pleasure, even if he could have repudiated it. Sexton had never paid the plaintiffs for the wool they sold him. He owed the protested bill of exchange on the note given Scoville, and in order to take it up, having placed funds in the hands of the defendant to pay it, it would be strange indeed if the defendant could refuse to apply them as directed. Whether the defendant is not estopped from making such a defence to the note, we need not say, for he is liable on the common counts, for money had and received.
We do not advise a new trial.
In this opinion, the other judges, Storrs and Hinman, concurred.
New trial not to be granted.