| New York Court of Chancery | Aug 2, 1831
The objection that the complainants had a perfect remedy at law, came too late. The defendant should have taken that objection either by demurrer to the bill, or by insisting on it in his answer as a bar. After a defendant has put in an answer, to a bill in chancery, submitting himself to the jurisdiction of the court without objection, it is too late to insist that the complainant has a perfect remedy at law; unless this court is wholly incompetent to grant the relief sought by the bill. This point was expressly decided by Chancellor Jones, in Smith v. Haviland & Field,
It is no objection to an application to dissolve an injunction on bill and answer, that a replication has been filed. If, indeed, the application is delayed until after the taking of the proofs, the court will not then go into an investigation of the whole merits of the cause on such an application, unless there are very particular reasons which would render delay improper. But the court will in such case order the motion to stand over until the hearing. In this case the motion was denied, with costs. I presume therefore the vice chancellor intended to decide the question on the merits, as presented by the bill and answers.
On an examination of the facts, as they are stated in the bill, I do not think they raise the question, whether an accommodation note made and endorsed for a particular purpose and afterwards negotiated for another purpose to a third person, with notice, or in payment or security for an antecedent debt, can be collected against the endorser.
The complainants allege that they endorsed this draft, as sureties merely, under a supposition that it would be discounted at the bank; and that the money was to be laid out in the purchase of produce, to be sent to New-York to meet the payment. But they do not allege that Field, or any other person, made any such representation to them to induce them to become the endorsers ; or that any fraudulent artifice or device was made use of to deceive them as to the real object for which the draft was intended. On the other hand they say they have been informed and believe that Field’s original intention, in making the draft and procuring their endorsement, was to raise money for the use of Le Roy; and to be applied in part payment of the debt due to him. It is not even alleged that such intention was designedly concealed from them. Their supposition, as stated in the bill, is one which the defendants could neither admit or deny in the answer, as it was confined to the complainants’ own bosoms at the time. It also is one which it seems impossible to establish by any legal proof. If they lent Field their endorsement, without any restriction as to
This case appears to be like that of the Bank of Rutland v. Buck, (5 Wend. R. 66 ;) where the holders of an accommodation note were permitted to recover against the endorsers, although it was received in security for a previous debt. The fact that the bank had refused to discount it, does not alter the case. (The Bank of Chenango v. Hyde, 4 Cowen’s R. 567.)
The order of the vice chancellor must be reversed, with costs ; and the injunction is dissolved.