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 recollection 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 Y. 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. And 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. 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 V. VILLE. defendants to make themselves responsible to any person who should be the holder of the paper. They MANDEintended it to be a negotiable instrument. This appears 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 endorsed 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 complainants, upon the credit of the note, granted indulgence to M'Clenachan. The defendants 'were undoubtedly 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 complainants, 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. Johnston, (ante, vol. 3. p. 319.) this court said that "the holder of a note may incontestably sue a remote endorsor 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 V. MANDE- BADDLE have a concurrent jurisdiction, an election to proceed in one concludes the party from going into the other. If a person is under no legal obligation to pay money, a court of chancery cannot compel him. It can only enforce the performance of legal contracts, and where there is no contract at law, a court of chancery cannot make one. As no privity exists at law between the holder and a remote endorsor, that privity cannot be created by a court of equity. 2. That the court below was correct in dismissing the bill. The contract was usurious. A note for 1,500 dollars having only sixty days to run was sold for 1,200 dollars worth of flour. There was no valuable consideration flowing to the defendants; and such a consideration alone can make an endorsor liable even to his immediate endor ice. The liability of the endorsor is not a complete chose in action. A chose in action is a right of action. No right of action exists against an endorsor of a promissory note, in Virginia, until it is ascertained that the money cannot be recovered from the maker. Until that time it is a mere possibility, which is not the subject of assignment even in equity. The liability of the endorsor is not assignable under the statute, and cannot be made so by a court of equity. In the case of a joint obligation by principal and surety, if the surety be discharged at law, he can never be made liable in equity for his equity is equal to that of the obligee. 2 Wash. 136. Harrison v. Field. The note was endorsed by the defendants to be discounted at bank. Gray committed a breach of good faith, an act of fraud, in sending it into the market. V. The complainants can only claim as creditors of RIDDLE M'Clenachan. But they are But they are no longer his creditors, having released him from the debt, according to his own deposition which they have produced. If it should be compared to a letter of credit, it is a letter of credit to a particular person for a particular purpose. It is not like a general letter of credit. Swann and C. Lee, on the same side. The suit at law was decided against the complainants on account of a defect of right, not for want of a remedy at law. The money in the hands of Gray was like any other property in his hands. If it had been a horse which Mandeville and Jamesson had transferred to M'Clenachan, with warranty, and M'Clenachan had sold the horse to the complainants, he could not have transferred to them the wa ranty of Mandeville and Jamesson. No case can be found in which a suit in chancery has been maintained against a remote warrantor of personal property. The complainants demand the whole amount of the note; but in equity they can claim only what they paid for it; and how much that was does not appear. The endorsors must sue each other in succession. No case can be found where a holder has recovered in equity against a remote endorsor. C. Simms, in reply, In the case of Violet and Patton, this court has placed the liability of an endorsor upon a much more correct principle than that of privity of contract. It was there decided, that an endorsement was equivalent to a general letter of credit; if so, it enables any one to recover upon it who has parted with his property upon the faith of it. It A. gives a letter MANDE |