Chalmers, Jones & Co. v. M'Murdo,

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| Va. | Nov 27, 1816

November 21th, 1816,

Judge Brooke

pronounced the Court’s

opinion :

The Court, admitting that a second endorser may, by agreement, become a first endorser in point of contract, which seems to have been relied on by the Chancellor, is of opinion that the Appellants Chalmers, Jones and Co. do not appear to have placed themselves in that situation. On the contrary, it is admitted by John Bell the surviving partner of John and William Bell, in his answer, that they were apprized, by Chepmel, La Serre and Co., that the Appellants refused to endorse the notes in question, unless there was some previous responsible endorser ; which admission accords with the answer of the Appellants, in which they allege that they refused to endorse, unless *256the Bells, who were the Payees, were the first endorsers. Nor does it appear that the Appellants had notice that the Bells were only the agents of Conway and Fortescue Whittle in that transaction, as is alleged in the answer of John Bell. In this aspect of the case, the Court is of opinion that no Decree ought to have been made either against the Appellants, or John Bell the surviving partner of John and William Bell; because the Equity of the latter, until disproved in a controversy with Conway and Fortescue Whittle, would follow their endorsement, and affect the claim of the Appellee; of which Equity, if it were material, he admits in his Bill he had notice.

The Decree of the Chancellor is therefore reversed ; and this Court proceeding, &c., it is Decreed and Ordered that Chepmel, La Serre and Co. pay to the Appellee the sum of $1500, the amount of the first note, with interest thereon from the 23d day of October, 1810, until paid, and the farther sum of $1063,55, the amount of the second note, with interest thereon from the 30th day of October, 1810, until paid ; and, it appearing to the Court that Chepmel, La Serre and Co. have removed from this Commonwealth to parts unknown, the Court is of opinion, that the Appellee is entitled to a Decree against Conway, and Fortescue Whittle his immediate endorsers. It is therefore farther Decreed and Ordered that Conway, and Fortescue Whittle, as to whom the Bill of the Appellee is taken for confessed, pay to the Appellee the sum of $1500, being the amount of the- first note, with interest thereon from the 23d day of October, 1810, until paid, and the farther sum of $1063,55, with interest, thereon from the 30th day of October, 1810, until paid, being the amount, of the second note, and costs. .But this Decree is to be without prejudice to the claim of the said Conway, and Fortescue Whittle against Chepmel, La Serre and Co.