1791. Da Costa V. Shrewsbury. commenced this action, in the name of Da Costa, for the recovery of it. On behalf of the holder, M'Whann, Pringle contended, that MWhann, the real plaintiff in the action, was a fair purchaser, for a good and valuable consideration; and there was a promise of payment, or acknowledgment of the justice of the debt when the bond was transferred, which was M'Whann's inducement for taking the bond. To support this promise, the plaintiff offered to produce evidence; but this being objected to by Rutledge, for defendant, The Court refused to allow any evidence to be given of a promise made to one who was not a party to the suit. It was, therefore, then contended, by Pringle, that there was a deception on the part of the defendant, by his holding out false colours to the present holder of the bond, which induced him to receive it in payment, and afterwards in refusing to pay it. At any rate, if there was no intentional fraud, there was that neglect or omission on his part, which ought to make him liable; because he might have informed himself of the mortgage, by searching the records in the proper office. If he had done so, the assignee of the bond would not have been imposed upon, by taking the assignment of it in payment. Per tot. Cur. (present, the CHIEF JUSTICE, and Judges BURKE and BAY.) The plaintiff ought not to recover in this action. The law is clear, that every person who takes an assignment of a bond, must take it subject to all the equity and rules of law, to which it would have been liable and subject, in the hands of the obligee. The promise of payment to the assignee, (if any evidence of it had been permitted to have been given,) would not have altered the case. It could not have been of so high a nature, being only parol, as the deed under seal, to the obligee; which being given to secure a valuable purchase, and the consideration failing, the deed itself failed with it. Besides, the present action was not founded on the defendant's promise to M'Whann, but on the bond given to Da Costa: he therefore, does not come in under his own right, but in right of Da Costa, as assignee. That being the case, therefore, he can have no greater right than Da Costa had-and his right failing, there ought not to be a recovery in the present case. Loft. 319. Vern. 428. 1 Bac. 157.* ** N. B. Since the determination of the above case, an act of the legislature of this state has enabled the assignee of a bond or note, &c. to bring an action in his own name; subject, however, to all the rules of equity, &c, as if it had remained in the hands of the original obligee. 1791. Da Costa V. Shrewsbury. TUCKER against CHARLES Lowndes. September ment binds UPON a rule for the sheriff to bring money into Court, Every judg in order to discharge the instalments due on a judgment in this case. It appeared by a list from the prothonotary's office, that this was the ninth judgment against the defendant. It was urged, at the same time, that most of the prior ones were unsettled. for the whole amount, notwithstanding the instalment says, that act, which debts shall only be recovered by This act does not alter the common law or statute of frauds, in that sequently those judg That ments must be respect; con paid off by the sheriff in rota tion, agreeable to their seniority. Holmes, for the rule, argued, that the prior judgments instalments. only bound for the instalments due at the time of the com mencement of the different actions, as no notice of demand of security agreeable to the instalment act, was proved: and that some of the actions were commenced against the defendant, when only one or two instalments were due. this, of course, would leave money enough in the sheriff's hands to pay his client (although his judgment was the ninth in order) the instalments due on his judgment. Rutledge and Ford, against the rule, insisted that every judgment bound agreeable to its priority, for the whole amount of the plaintiff's demand, both at common law and by the statute of frauds. That the instalment law did not lessen the plaintiff's security, or deprive him of his prior right. It only gave time to the defendant to raise the money, and prevented the plaintiff from recovering, (i. e. levying) otherwise than by instalments. They compared it to It is too late, after judg fendant, to ment for de take advantage of want of demand of security. It ought to pleaded to the have been action. 1791. Tucker V. Lowndes. a bond given with a penalty, to pay money at different days; where, upon failure of payment, on any of the days, the penalty became forfeited, and judgment on that, bound for the whole amount; though the plaintiff could not levy for more than the sums really due, until the whole became payable. That to give any other construction to the instalment law, would greatly diminish the securities of the country, and set afloat a great part, if not the whole of the judgments entered up since that law passed. With respect to the demand of security, that advantage was waived by the defendant's not pleading it in bar to the action. It was too late, after judgment, to make that a plea for not paying the money, or setting aside a judgment obtained without such demand. By the Court unanimously. Every judgment binds for the whole amount in order, agreeably to seniority. The instalment law does not alter the common law or statute of frauds, in this respect-though the defendant may, at any stage before judgment entered up, come in and pay the instalments due, and give security for the residue, and by that means discharge the suit. It is the duty of the sheriff, in every case where an execution comes to his hands, to sell as much of the defendant's effects as would pay off the instalments due to the plaintiff in cash, and as much more on a credit, agreeable to the instalment law, as would fully satisfy the plaintiff's judgment, and deliver over to him such bonds, with security, as he may take for the credit of the judgment; and so on, in like manner, to every subsequent creditor, agreeable to seniority. With regard to the demand of security-although the want of it might be pleaded in bar to the action; yet this advantage has been waived by the defendant. It is too late, after verdict and judgment, to make it an objection. Lu cas Ca. 431. 440. Ibid. 38. Rule discharged. Present, RUTLEDGE, Ch. J. and Judges BURKE, GRIMKE, and BAY. PORTEOUS against SNIPES. a Where a person has a judg ment at law against a de fendant, who plies to chan cery for an injunction to afterwards ap tion, which upon hearing, and he after DEMURRER to plea in bar to debt on bond, given in the court of chancery, to enable Thomas Washington to obtain an injunction there. In this case, the plaintiff had judgment at law against Thomas Washington, who applied to the court of chancery for an injunction; and in order to obtain it, the defendant, Snipes, entered into a bond with stay execu him as security, agreeable to the directions of the act prescribing the terms of obtaining injunctions, &c. The bill in chancery was, however, dismissed; and after the dis- is to take mission, the plaintiff, Porteous, proceeded on his original the judgment against Washington, took out a capias ad satisfa- execution, ciendum, upon which he was taken, and died in goal, insolvent, as was alleged; having in fact been executed for forgery. After the death of Washington, the plaintiff, Porteous, brought an action on the bond entered into by the defendant, Snipes, when the injunction was obtained; and the defendant prayed oyer of the condition of the bond, which was, "that Washington should abide by the order of the "court of chancery, in that cause, and pay and satisfy the plaintiff the amount of his judgment at law, together with "costs of suit," and then pleaded in bar to the action, that it would not lay against him; because the plaintiff, Porteous, had, after the dismission of the bill in equity, made his election, and proceeded on his judgment at law, against Washington, and taken him in custody, on a ca. sa. And that the taking, and his dying in gaol, was such a satisfaction in law, as discharged him as security on the injunction bond. To this plea the plaintiff demurred, and the defendant joined in demurrer; which brought the point before the court-whether this was a good plea in bar to the plaintiff's action, or not? is dismissed; wards pro ceeds defend ant's body in who dies in gaol: this shall be a good discharge of the bail on the injunction bond; as the party, by making his electionto proceed against the defendant on the origi nal judgment, waives his right against the injunc thereby the bail on tion bond. 1791. Porteous V. Snipes. For the plaintiff, it was contended, that the clause in the court of chancery act, which regulates the manner of applying for injunctions to stay proceedings at law, altered the old terms of obtaining those writs; which required that the sum recovered, should be deposited with the master, before any such writ could be obtained; and, in lieu thereof, directed that bond and security should be given, to answer and abide the decree or order of the court, in such sum as the master should think reasonable and proper. This, it was said, was intended to ease the defendant at law, who might have equity on his side, but who could not conveniently raise the cash to deposit in the hands of the master, before he could obtain the injunction. That the plaintiff at law was to be made secure at all events, and that it was never intended to place him in a worse situation, eventually, than he would have been had the old law remained in force, and the money paid into court; in which case, all that he would have had to do, after a bill was dismissed, would have been to have gone to the master, and received the money deposited. The next best thing to the money, it was said, is the security for it. That was the end and design of the legislature in passing the clause in question. The present is an absolute undertaking of one person for the debt and duty of another, and does not depend upon any possible contingency which can or may defeat the obligation of the other, and not defeasible upon the surrender of principal, as in cases of bail; and that this was the first instance in which it was ever contended that an attempt to get money from the principal, deprived a man of his remedy against the security. The plaintiff was not bound here, as in some other cases, to make his election and proceed in one way, so as to deprive him of his remedy in another; but every one remained, and still remains open to him, and he was at full liberty to pursue his execution and take the body of defendant, or to commence his suit on his bond, and go against Gri mke's collection of the Public Laws, page 338. |