Opinion
April 19, 1825.
This cause came on for hearing April 19, 1825. The bill, answers and depositions were read, and submitted to the Chancellor without argument.
The bill states that William Walker, on April 19, 1816, made a promissory note and delivered the same to William Clark, and thereby, sixty days after the date thereof promised to pay to said William Clark, or order, $800, for value received. And the said William Clark on the day and year aforesaid indorsed said note to Frederick Leonard, or order, and he, Leonard, on the same day and year indorsed said note to complainant, John Hedges, and he indorsed the same to the President, Directors and Company of the Bank of Delaware, of which said several indorsements all the said parties respectively had due notice; by reason whereof, and by force of the Statute and Act of Assembly in such cases made and provided, they became liable to pay said money mentioned in said note, according to the tenor and effect of said note and of said several indorsements.
Then after the expiration of said sixty days, to wit, on 22nd June in said year 1816), the Bank presented said note to said William Walker and requested payment, but Walker did not then or at any time after pay the same, and refused to pay the same, of all which said premises the said William Clark, Frederick Leonard, and complainant, afterward, to wit, on the same day and year last mentioned had due notice; by reason whereof, and by force of the Statute and Act of Assembly, they became liable to pay to said Bank said money. And complainant, being so liable, actually paid to said Bank said money, and the Bank thereupon delivered to complainant said note with said several indorsements. That by reason of the payment of said note by complainant Walker, the drawer thereof, and said William Clark and Frederick Leonard, the indorsers prior to complainants, by virtue of the drawing and indorsements by them respectively made, and of the due notice given to said William Clark and Frederick Leonard respectively as aforesaid of the non-payment of said note by said Walker, became liable to pay by virtue of the Statute and Act of Assembly, and in equity and good conscience bound to pay to complainant said money. That complainant has repeatedly called on Walker, Clark, and Leonard and demanded payment of said note, and they have refused to pay the same. That on or about March 25, 1813, complainant gave to said William Clark two bonds with warrants of attorney to confess judgments thereon, for $500, each bond, the first of which was payable on March 25 last, on which complainant has paid $410. The other will be due March 25 next (1817).
That complainant has endeavoured by friendly means to prevail on William Clark to pay said note, indorsed as aforesaid, by deducting from the amount of said note, the balance due on the first bond, and the sum payable on the last bond from complainant to said Clark, but this he has refused to do.
That complainant apprehends Clark will assign said bond to some third person, who may proceed at law himself by entering judgment and taking out execution, etc.
That complainant is in danger of losing the money due to him on said promissory note, from the embarrassed situation of William Walker, Frederick Leonard, and William Clark, who may prove insolvent before a recovery can be had by complainant at law, on said note. And complainant well hoped, etc. But now so it is, etc. In tender consideration whereof, etc. To the end therefore, etc.
Prayer, that said William Clark may be prevented and restrained from assigning, transferring or negotiating said bonds due from complainant to him, in any manner whatsoever to any other person or persons, and that he may be prevented and restrained from proceeding in any manner at law to recover the amount or any part thereof, of the said bonds from complainant. And that he may be decreed to come to a just and true account with complainant in this court respecting the said bonds due by complainant to him, and the said note due by said William Clark to complainant, and may be compelled to discount or deduct the amount due on said bonds from the sum due to complainant on said note, and to pay to complainant the balance, and for general relief.
Prayer for writ of injunction to restrain said William Clark from assigning, transferring or negotiating in any manner whatsoever the said bonds, or either, or any part of them, due, or to become due, from complainant to said William Clark, to any other person or persons; and to restrain said William Clark from proceeding in any manner at law to recover the said bonds, or either or any part of them from complainant, etc.
On August 10, 1816, a writ of injunction was ordered to be issued agreeably to the prayer of said bill of complaint, with liberty to the defendant, Clark, to move for its dissolution at the next term. . . .
McLane for complainant.
Wales and Rogers for defendant. . . .
THE CHANCELLOR.
William Walker in his answer, and in his deposition, admits that a demand was made of him for payment of this note. John Janvier, the administrator of Clark, in his answer declares that he has no knowledge that a demand was made of Walker, or that Clark had any notice of the non-payment of the note by Walker. Frederick Leonard admits that the note was presented to him for payment. There is no proof that Clark had any notice of the non-payment by Walker. There is no circumstance in this case to admit the answer of Walker to be read against the other defendants, or against any of them. He is not a defendant for form sake, and he is materially concerned in interest. Neither can his deposition be read in evidence.
Footnote by Ridgely, "1 P. Wms. 300, 596; 2 Ves.Sr. 222; 3 P.Wms. 288; 16 Ves.Jr. 218. As to cases of promissory notes, see 5 Com.Dig. title `Merchant' (F. 14) p. 84, (F. 15) p. 86; 2 H.B1. 336, 609, 509; 4 term 470; Esp.N.P 50, 51, 56, 57, 58."
I perceive no equitable circumstance in this case to bring it "before this Court. If the defendants or any of them are bound at law to pay this money to Hedges, he has his remedy at law, and if they are not so liable he cannot recover here, Clark was never fixed at law for the payment of the note, because there is no proof that he had notice of the non-payment by Walker, and neither can he be made to pay the money by this Court. That a demand should be made on the maker of the note, and in case of non-payment, that notice should be given to the indorsers to make them liable, is a positive rule of law, and a court of equity can no more depart from it than a court of law can; and if the plaintiff cannot recover at law on account of neglect, neither can he here, but at all events, as the question is presented to this Court, it is purely a matter of law and is to be decided at law.
The notion of setting off this money, paid by Hedges on this note, against his bonds given to Clark, has probably given rise to this bill; but unless Clark had been made liable for the money mentioned in the note, there could be no ground for a set-off, and I do not see how, on that account the plaintiff could come into equity.
The bill must be dismissed.