Clark v. Ely

The defendants objected to the reading of Townsend’s testimony, unless the com- ] laiuant waived a decree against him, and also because Townsend was primarily liable to the complainant’s claim. As he permitted the bill to be taken as confessed, and thereby admits the demand, the objection is not well founded. (Bradley v. Root, 5 Paige’s R. 632.)

When Townsend transferred the notes in controversy to the respective defendants, a portion of them equal to the amount of the complainant’s notes against Crowell, belonged in equity to the payee of those notes, and to that extent Townsend was a trustee of the same for the payee of the notes.

As between himself and Townsend, the payee was not obliged to look to the latter’s personal responsibility, but he had a right and interest in the notes themselves which a court of equity would protect and secure; and if necessary for his protection, this court would have restrained Townsend from transferring them, and placed them in the hands of a receiver to be applied to the payment of the notes.

The cases of Bank of Auburn v. Throop, 18 Johns. 505 , Haggerty v. Pittman, 1 Paige’s R. 298, and Curtis v. Tyler, 9 ibid. 432, are sufficient authorities for these positions.

The principal inquiry in the case therefore is, whether the defendants have obtained a title to the notes, which can be maintained against the prior equity of the complainant.

Hirst. As to the Wayne County Bank. To the extent of the demand of the bank against Crowell for which Townsend was a surety, the right of the bank to take a part of the notes is undisputed. The residue of the notes which the bank received, was applied to the previous indebtedness of Townsend. No notes of Townsend’s were paid by the operation, nor any securities relinquished. It does not appear in what form the demand against Townsend existed, but the net amount of the notes applied to it was passed to his credit on the books of the bank, from which I infer that the debt was for overdrafts or for money lent, and standing in an open account against him.

The bank having taken the notes for a precedent debt, without parting with any property or security, cannot retain them against the prior equity of the complainant.

I cannot act upon the suggestion that the defendants have obtained the portion of the securities which Townsend himself was entitled to keep, in respect of his own advances for Crowell. I must enforce the complainant’s equity in the notes, precisely as it stood against Townsend, before the defendants received them; and he then had a right to pursue the notes which constituted the trust fund. So in regard to the complainant’s exhausting all the other assets which remained in Townsend’s possession, before calling upon the defendants; or proving that he had no available remedy against Townsend personally. It does not appear that any portion of the trust fund remained in Townsend’s possession or control, which was of any value, or that a resort to him would have been of any avail.

In the authorities referred to, it was shown expressly, that the creditor had another fund or resource equally available to him, and therefore equity required him to resort to it in the first instance.

Second. The defendant Ely claims that he is a bona fide holder for a valuable consideration and without notice, of the notes which he received from Townsend, and is therefore entitled to retain them as against the complainant.

In order to determine this claim, it is necessary to ascertain what facts are proved in respect to Ely’s receipt of the notes. He had recovered a judgment against Townsend upon a prior indebtedness, and an execution had been issued thereon against the property of the latter. In this stage of the affair, Ely re

So with the allegation in his answer, upon his information and belief, that his execution was levied upon the goods of Townsend more than sufficient in amount to satisfy if, and the goods were holden by the sheriff subject to the execution. This statement might be true, and yet by reason of prior executions on the same property, the levy may have been unavailing; but as it is not proved 1 need not criticise it.

The consideration upon which Ely became the holder of the notes constituting the trust fund, is therefore a precedent debt resting in judgment and execution. He received them in satisfaction, but he did not actually discharge either the judgment or execution.

This is not sufficient to enable Ely to retain the notes as against the complainant. Nor do the cases relied upon sustain his defence.

In The Bank of Salina v. Babcock, 21 Wend. 499 , which is one of the strongest cases in his favor, the bank on receiving the misappropriated note, cancelled and discharged notes to nearly the same amount, on which they had responsible indorsers. They not only received the notes in payment, but parted with their security for the prior debt, on the faith of those notes. And in Mohawk Bank v. Corey, 1 Hill, 513 , there was a similar consideration. The Bank of Sandusky v. Scoville, 24 Wend. 115 , was decided upon our usury law of 1830, and is not. directly in point. The learned judge who decided if, had only three years before, in Smith v. Van Loan, hereafter mentioned, distinctly sanctioned the decision made in Rosa v. Broiherson, 10 Wend. 85 ; and I cannot imagine that in his short opinion in the case of the Bank of Sandusky, he intended to assert a contrary doctrine.

It is not to be denied that one of the authorities cited by the defendant, upon this point, is in his favor.

In Coddinglon v. Bay, 20 Johns. 637 , the Court for the Correction of Errors decided that the receipt of negotiable notes as security or indemnity for a previous liability, did not entitle the holder to retain them against the true owner, although they were taken in perfect good faith. The arguments urged in that case in favor of the holder of the notes, were as cogent as any that can be presented when the paper is received in payment of a debt already due from the person transferring it. And the reasoning of the judges who pronounced the reported opinions are equally applicable to the taking of notes in payment.

Accordingly in Rosa v. Brotherson, 10 Wend. 85 , the Supreme Court decided that where a creditor received a negotiable note before its maturity, in good fa.ith in payment of a precedent debt, he could not enforce it against the maker who had a defence to it while in the hands of the payee. This decision was approved in Smith v. Van Loan, 16 Wend. 659 , where the facts of the case are more fully stated than they are in the report in 10th Wendell.

In Payne v. Cutler, 13 Wend. 605 , the notes were received in payment, and the court permitted the maker to prove a failure of consideration against the holder, who had taken them without notice, before their maturity.

In the Ontario Bank v. Worthington, 12 Wend. 593 , 600, the bill was discounted and applied to take up a protested note, and the same principle was upheld by the court.

In it Wend. 170, Wardell v. Howell, the note was received as security, but the court affirm the principle as applicable to taking it in payment, where no security is parted with.

Francia v. Joseph, 3 Edw. Ch. R. 182, was similar in all respects.

And in all these cases, the various judges who decided them, regarded Coddinglon v. Bay, as establishing the principle, that receiving negotiable paper for a pre-existing debt, either as security or as payment, is not of itself, receiving it in the usual course of trade for a valuable consideration.

There must be a decree accordingly.