79 Ill. 331 | Ill. | 1875
delivered the opinion of the Court:
Two questions are presented by this record: First, and •preliminary, Does an appeal lie in the case? Second, Is there equity in the bill ?
In answer to the first question, it is only necessary to say, the bill of complaint filed was for an injunction, and that only. Disposing of the injunction disposed of the case. That an appeal lies in such case, is settled in Titus et al. v. Mabee, 25 Ill. 257, and subsequent cases.
Upon the second question, the bill charges that the notes, the collection of which is sought to be enjoined, were given by complainant for the accommodation of Lomer, and procured by fraudulent statements made by Lomer, and held by the bank as collateral to Lomer’s indebtedness to the bank, alleging that the bank has other and adequate security.
The case is argued by appellant on the theory that he occupies the position of a surety, and can therefore direct the course the creditors shall pursue as to the principal debtor. He contends, the bank, háving other and sufficient collaterals, is bound to exhaust them before calling upon complainant, and invokes the aid of an acknowledged principle of equity, that, when a party has a lien or interest in two funds, out of either of which his debt can be paid, and another party has a lien or interest on one only of the funds for his debt, the latter has the right in equity to compel the former to resort to the other fund in the first instance, for satisfaction, whenever it will not trench upon the rights or operate to the prejudice of the party entitled to the double fund.
This principle, we understand, is applicable to sureties only. Such may compel the creditor to resort to a fund in which he has an exclusive interest, before resorting to the fund to which the surety can only resort. But that is not this ease. Appellant is in no sense a surety. He is the principal debtor on the npte. Cronise v. Kellogg, 20 Ill. 11.
We are aware of no principle by which the bank can be compelled to any particular course in regard to such collaterals as it may have. We fail to perceive any obligation on the bank to convert its securities or do any other act at the instance of this party, if he was a surety. In certain cases, and this is not one, a security to a negotiable note may notify the holder to proceed against the principal, on the maturity of the note. Independent of this, a surety can not compel the holder to proceed against others before proceeding against himself, and exhaust such other remedies as he may have.
In the court below, the bill of complaint was fully answered, and affidavits were filed in support of the bill, and also in support of the answer. By these latter, it is shown the col-laterals in possession of the bank are of uncertain value, and of small amounts, and including some crockery ware. An objection is now made for the first time, that the affidavit is not sufficiently verified ; that it does not appear who Samuel W. Nickerson, the affiant, is, where he lives, or that he is in anywise connected with the bank, or how he knows the facts stated in the answer.
These were good objections, had they been made at the proper time. They were readily remedied, and, if made in the court below, all these facts could have been made to appear, as, that he was the president, the cashier, or a director of the bank, and familiar with its business.
Not perceiving any equity in the bill, we must affirm the decree dissolving the injunction.
Decree affirmed.
