Opinion
April, 1819.
Bill filed August 3, 1816.
Clark since died, and John Janvier, administrator, party.
Bill states that on April 19, 1816, William Walker made a promissory note to pay sixty days after its date to William Clark, or order, $800, for value received. Same day William Clark indorsed the note to Frederick Leonard. Same day Leonard indorsed the note to the complainant. Same day complainant indorsed the note to the President etc. of the Bank of Delaware. All the parties had notice of said indorsements and became liable [for] the said sum of money mentioned in said note.
After the expiration of said sixty days, viz on June 22, same year, the Bank presented the note to William Walker and requested payment, but he did not pay it; and said William Clark, Frederick Leonard, and complainant had notice same day, and they became liable.
And complainant being so liable paid the Bank; and said William Walker, the drawer, and said Clark and Leonard, the indorsers prior to complainant, became liable to pay to complainant said money. Complainant has called on Walker, Clark, and Leonard, and demanded payment [which was] refused.
That about March 25, 1813, complainant gave to Clark two bonds with writ of attorney for $500 each, first payable March 25 last (1816) on which complainant paid $410. The other payable March 25 next (1817).
Clark has refused to deduct or discount the amount of said note from first bond. Complainant [is] afraid Clark will assign and that he will lose debt by embarrassed situation of Walker, Leonard, and Clark, who may become insolvent before complainant could recover the money payable by note.
Mr. McLane for complainant reads the promissory note. Demurrer filed because Leonard indorsed the note and that there is no equity in the bill. All the indorsers of the note are liable. He might sue any one, or all of them. Iniquity to let Clark take the debt due from Hedges, and he lose his debt. 1 Dick. 707, 799, that for want of parties the cause will stand over and bill be amended. 2 Madd.Ch. 145, if complainant will disclaim the right of making any decree against person not party, he need not be party. 2 P.Wms. 313, joint and several bond, one dies, his executors only may be sued in equity. Vide 3 Eq.Cas.Abr. 405. Here all the indorsees are several.
Manuscript reads "Mr. Rodney."
Mr. Rodney for defendant. This demurrer can be sustained for want of parties. This is an accommodation note. Walker got the money. Not a cent went into the hands of Clark, Leonard or Hedges. No consideration passed from one indorser to the other; and all that can be asked [is] that we should pay our part only. All the indorsers should contribute. Complainant is not entitled to receive from Clark the whole debt. The others ought to contribute. In Peere Williams each was bound to pay the whole debt. Here Hedges is bound to pay his proportion only. Coop.Eq.Pl. 33. General rule all persons interested must be parties, plaintiffs or defendants, that complete decree may be made and future litigation prevented. Here justice cannot be done, nor complete decree be made, unless the other indorsers are brought into court. Demurrer to relief may embrace all the causes for which the complainant shall not have relief, such as want of parties, want of equity.
McLane for complainant. That indorser is liable for his share only of debt. Answer. All indorsers are liable. Every one is a new drawer.
The complainant is entitled to relief to a certain extent, according as the case now appears to me. Certainly Hedges should not be compelled to pay the whole debt, that is, the whole note, but then the other indorsers should pay their parts also. If Hedges goes on and obtains complete relief, that is, to the amount of the note, then Clark is wronged. Now, as at present advised, I think that all the indorsers should contribute. It is said that no consideration passed from one to the other, surely the equity will not compel Clark to bear the whole loss. Walker is insolvent, and upon that principle the case comes here. If Hedges asks equity, let him do equity. If he was an indorser as well as Clark, and no consideration passed to either, justice will certainly not compel Clark to bear whole loss. Demurrer allowed as to want of parties; and overruled as to want of equity. The Chancellor does not hold himself concluded by this opinion as to relief; only as to want of parties.