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WELSH

WELSH v. MANDEVILLE AND JAMESSON.

V.

MANDE

VILLE.

cause to be

YOUNGS, for the defendant in error, objected This court will to the hearing of the cause at this term, the citation not compel a not having been served thirty days before the first heard, unless day of the term. The service was on the 12th of the citation be served thirty January, and the first day of the term was the 6th of days before the February. first day of the

E. J. Lee, contra, contended, that it was to be inferred from the case of Lloyd v. Alexander, ante, vol. 1. p. 365. that if the defendant appears within the thirty days, the court will hear the case; or they will hear the case, after the expiration of the thirty days, even if the party does not appear.

Youngs. The 22d section of the judiciary act, vol. 1. p. 62. requires that the defendant in error should have thirty days' notice by the service of the citation.

The citation is to appear on the first day of the term, consequently thirty days' notice must be by service of the citation thirty days before the first day of the court.

THE COURT refused to take up the case without consent, although thirty days had then (March 9, when the cause was called for hearing) elapsed since the service of the citation; and observed, that the case of Lloyd v. Alexander only decided that the court will not take up the case until thirty days have expired since the service of the citation; but it did not decide that the court would then take it up with

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term.

RIDDLE

V.

MANDE-
VILLE.

RIDDLE & CO. v. MANDEVILLE AND

JAMESSON.

The endorsee

of a promisso

cover the a.

though not at

law

ERROR to the circuit court for the district of Cory note, in Vir- lumbia, sitting at Alexandria, in a suit in chancery, ginia, may re brought by Riddle & Co. against Mandeville and mount from a Jamesson, remote endorsors of a promissory note, remote endor- dated March 2, 1798, at sixty days, for 1,500 dollars, sor, in equity; drawn by Vincent Gray, payable to the defendants or order, and by them endorsed in blank. Upon its Equity will face it was declared to be negotiable in the bank of make that par Alexandria. The note so drawn and endorsed was ty immediately liable who is by Gray put into the hands of a broker who passed ultimately liable at law. it to D. W. Scott for flour, which he sold for 1,200 The remote dollars in cash, and paid the money to Gray. Scott the same de- passed it, without his own endorsement, to M'Clenafence in equity chan in the purchase of flour, and M'Clenachan enagainst the re- dorsed it to Riddle & Co. the complainants, in payas against his ment of a precedent debt; Gray failed to pay the immediate en- note, and was discharged under the insolvent act of The defendant Virginia, upon an execution issued upon a judgment has a right to in favour of the complainants upon the same note. other endor- The complainants then brought a suit at law against sors be made the defendants upon their endorsement, and obtained parties.

endorsor has

mote endorsee

dorsee.

insist that the

judgment in the court below, which was reversed in this court, upon the principle that an endorsee cannot maintain a suit at law against a remote endorsor of a promissory note. 1 Cranch, 290. Whereupon the complainants brought the present bill in equity, which was decreed to be dismissed in the court below; that court being of opinion that there was no equity in the bill. From that decree the complainants appealed to this court.

The only facts stated in the bill were, that Gray made the note payable to the order of Mandeville and Jamesson, who put it in circulation. That it was afterwards delivered and transferred, for a valuable consideration, to M'Clenachan, who, for a

valuable consideration, endorsed and transferred it to the complainants. That Gray failed to pay it, and was discharged from execution under the insolvent act, whereby the complainants were unable to recover from him any part thereof; in consequence of which the defendants became liable in equity to pay the same, but have refused so to do.

Among the interrogatories contained in the bill, it is asked "with what view was the note made and endorsed?" and whether one of the defendants did not, upon inquiry, declare that the note was good, and would be punctually paid?

The defendants pleaded the judgment at law in their favour in a suit brought upon the same note, in bar of the relief in equity.

To this plea the complainants demurred, and the court sustained the demurrer, and ruled the defend

ants to answer.

The answer states, that the note was endorsed by them for the purpose of being discounted at bank for the use of the collector's office, in which Gray was the chief clerk or deputy, and had the whole management of the business. That the defendants refused to endorse it until Gray promised to deliver to the defendants, as security, their bond to the United States, given for duties, to the amount of 1,168 dollars, which he never did, and they had to pay it. That they never received any value from any person for their endorsement; that they never gave circulation to the note, otherwise than by endorsing it and delivering it to Gray to be discounted at bank, for which purpose only they endorsed it. They deny that they ever made any contract with any person touching the note, and say they have no recollec tion of any conversation with any person respecting the note before it became due.

The deposition of D. W. Scott stated, that he gave 200 barrels of flour for the note, but before he

RIDDLE

V.

MANDE

VILLE.

IDDLE

V.

MANDE-
VILLE.

concluded the bargain, he asked Jamesson, one of the defendants, if the note was good, and whether there was any objection to it, and informed him it was offered to him for flour. Jamesson told him it was a good note, and observed that whenever he saw the name of Mandeville and Jamesson on any paper he might be sure it was good. That Scott sold the note to M'Clenachan for 207 barrels of flour, but did not endorse it, and it was expressly agreed that he should not be answerable for it in any event.

The deposition of M'Clenachan stated, that before he would take the note of Scott, he informed Jamesson that he intended to deal for it, and inquired whether it was an accommodation note, or a note given upon a real transaction. Jamesson told him it was a real transaction note, and not an accommodation note, and that it would be punctually paid. The deponent further stated, that the complainants had released to him all claim on account of the note, and of the debt intended to be paid by the note; and that he had also been discharged under the bankrupt act.

These witnesses were objected to by the defendants as interested.

E. J. Lee, for the plaintiffs in error.

1. The court below did right in overruling the plea in bar.

Where, by the principles of law, a party has a right, but the forms of law do not give a remedy, a court of equity will grant relief. Mitf. 103. And in some cases it has a concurrent jurisdiction with the courts of law. Mitf. 108, 109. 3 Atk. 215. 1 Fonb. 204.

2. The court below erred in dismissing the bill.

The plaintiffs are entitled to recover in equity against the defendants. It was the intention of the

defendants to make themselves responsible to any
person who should be the holder of the paper. They
intended it to be a negotiable instrument. This ap-
pears from the note itself, which is expressly made
negotiable in the bank of Alexandria, and from
the answer of the defendants, who state that they en-
dorsed it for the purpose of being discounted at the
bank. Their endorsement was intended to give
credit to the note. If they did not intend to become
responsible, they were guilty of a fraud. The com-
plainants, upon the credit of the note, granted indul-
gence to M'Clenachan. The defendants were un-
doubtedly answerable at law to M'Clenachan. That
liability was a chose in action which he had a right
in equity to assign, although this court has decided
that it was not assignable at 'law. 1 Atk. 124. 1
Fonb. 201. 204. 1 Term Rep. 622.
In the case of
Violet v. Patton, at this term, this court has decided
that a person who endorses merely to give credit to
the note, is liable at law to his immediate endorsee.
If the complainants had brought a suit in the name
of M'Clenachan for their use against the defendants,
a court of law would have protected the equity of
the complainants. 2 Skin. 6, 7. 1 Term Rep. 622.
Winch v. Keely. 4 Term Rep. 341. And if in such
a suit the defendants had a set-off against the com-
plainants, Riddle & Co., a court of law would have
allowed it. 2 H. Bla. 1271. Bottomly v. Brooke.
1 Term Rep. 621. If a court of law will recognise
and protect an equitable assignment, à fortiori will
a court of equity. In the case of Harris v. John-
ston, (ante, vol. 3. p. 319.) this court said that "the
holder of a note may incontestably sue a remote en-
dorsor in chancery, and compel payment of it."

Youngs, contra, contended,

1. That the plea in bar ought to have been sustained. A judgment at law against a party in an equitable action of assumpsit, when all the facts are susceptible of proof at law, is conclusive against the jurisdiction of a court of chancery, if it ever had any. If a court of chancery and a court of law

RIDDLE

V.

MANDE

VILIE.

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