Phillips

Morton, C. J. We are of opinion that the Superior Court rightly held that the transaction of the appellant with the Central National Bank of December 4, 1878, detailed in the report, amounted to a payment by him within the Gen. Sts. c. 118, § 87, which forfeited his right to a discharge, the jury having found that, at the time he made it, he had reasonable and sufficient cause to believe himself insolvent. The appellant contends that, on December 4, 1878, when he took up the note of $1175, the bank had the right to set off against the note the deposits then in its hands to his credit to the amount of the note; and therefore that the giving of his check and the taking up of the note by him were of no consequence. If we assume that the note of $1175 was an accommodation note, signed by the father of the appellant, under such circumstances that no demand and notice were necessary, in order to fix the liability of the accommodation indorser, and therefore that the bank had the right to set off, or to apply in payment of it, such sum as the appellant had in the bank to his credit, it does not remove the difficulty of the appellant’s case. The facts are, that the bank had in its hands to the credit of the appellant, before this transaction took place, only $719.41; and that he deposited in the bank, as a part of the transaction, $776.52, thus making the amount to his credit more than enough to pay this note. If the bank had the right to apply to the note by way of payment or set-off this sum of $719.41, the payment to it of the balance of the note was clearly a fraudulent payment under the insolvent law. It is no answer to say that the means of paying this balance was obtained by the discount of another note signed by the father for the accommodation of the appellant. The transaction was not the mere substitution of one accommodation note for another. The necessary effect of it [235] was to leave the appellant’s estate and his other creditors in a worse condition than they would have been in if the debtor had made no payment, but had allowed the rights of the parties to the note to be settled by the law. It was in form and in intention a payment of the first note, and was rightly so held by the Superior Court. The request of the appellant for an instruction as to the burden of proof was made after the case was fully committed to the jury, and was made too late. It was within the discretion of the judge to recall the jury and instruct them upon the subject, or to refuse to do so. Mooar v. Harvey, 125 Mass. 574. Judgment affirmed.