ADDISON, the part of the government, at that time, for which it was givJanuary, 1842. en, the consideration having been rendered the government after such time, by the defendant, through his agent or asTilden signee, and as the government never accepted such assignee, the relation between them and the defendant is unimpaired by reason of the assignment.

v.

Brown.

Here, then, is a case where the thing sued for is not only made long after its pretended transfer to the plaintiff, but every thing was thereafter done to entitle him to the draft from the government, and, in legal effect, to be done by the defendant himself. How, then, can a contract that the plaintiff shall have the avails accruing to the defendant, from the government, upon a subsequent performance of his contract with them, be but an executory contract? To my mind this is exceedingly clear, however it may appear to others. If this contract has been violated by the defendant, the plaintiff has a plain remedy upon the contract. itself, or in an action for the moneys received, and I perceive no good reason, growing out of the equity of this action, that should induce the court to labor to sustain an action founded in experiment, and in contravention, as I think, of general principles and well marked boundaries, limiting the different kinds of action.

Having come to the conclusion that the draft, when made by the government, and, in effect, delivered to the defendant, by its being mailed to him, vested the property in the draft in him, it remains to be inquired, whether there is any thing in this case to show that, at any subsequent time, the defendant was divested of, and the plaintiff invested with, the property in this draft. All that we have is that the draft in question came to the post office at Middlebury, enclosed to the defendant, and that the post-master had previously been notified of the contract between the parties to this suit, and of the order given by the defendant upon him, under date of the 16th of December, 1837, and that the post-master, instead of delivering the draft to the plaintiff, delivered it to the defendant, who negotiated it at the bank, and refused to let the plaintiff have either the draft or the money. There is no evidence that the post-master assumed to become the agent of the plaintiff or of the defendant. All that the case finds is that the plaintiff notified him of the contract and either

sent him or showed him Brown's order upon him. The draft came into the possession and custody of the post-master at Middlebury as a public officer, whose duties are pointed out by law, and not as the agent of any one. Though he might have been justified in delivering the draft to the plaintiff, yet he did not do it; and in the absence of any agreement on his part so to do, it can hardly be contended that the plaintiff could have an action against him in consequence of his failure to do it. If the draft, when mailed at Washington, became the property of Tilden, what transpired at the post-office at Middlebury can be of no importance to the rights of the plaintiff in sustaining this action. If it did not, but was the property of the defendant, it is quite beyond my comprehension to see that what transpired at the Middlebury office should have any effect in changing the ownership of the draft. Without the right of property, it cannot be contended that the plaintiff can sustain this action. It does not follow, from my views of the case, as contended upon the argument, that, if this contract, which I esteem but as executory, had been executed, and the drafts had passed under it into the possession of the plaintiff, the defendant could have maintained an action against the plaintiff to recover either in trover for the drafts, or in assumpsit for moneys received upon them. The contract, executed by the parties, would be an ample answer.

It it is hardly contended that a recovery can be had on the second count in the declaration. To recover in tort, there must be, in the case of contracts, superadded to the breach of them, a malfeasance, or misfeasance, which must be the gravamen of the complaint.

But, as the case is put entirely upon the count in trover, I will not extend my remarks relative to this count, and will only add that, in my opinion, this action is not maintainable, and that the judgment of the court below should be affirmed.

ADDISON,
January,

1842.

Tilden

v.

Brown.

RUTLAND COUNTY.

FEBRUARY TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

66

STEPHEN ROYCE,

LE GRAND CANNON & STEPHEN WARREN v. JOHN NORTON AND FRANCIS SLASON.

(In Chancery.)

The answer of one defendant is not evidence for the other.

An answer, not responsive to the bill, setting up matter in defence or avoidance, must be proved.

Quare, Whether the want of parties to a bill can be taken advantage of on the hearing of an appeal from the chancellor.

When the want of parties is not insisted on by demurrer, or plea, it cannot be urged at the hearing, unless it manifestly appears that a decree cannot be made without bringing other parties before the court.

THIS was an appeal from a decree of the court of chancery against the defendants.

The orators, in their bill, charged, in substance, that one Cyrus Adams, on the 23d day of August, 1828, procured the defendant, Norton, to sign a note with him to one McClure, and, to indemnify Norton for signing such note, indorsed to him sundry notes against different individuals, amounting to about seven hundred dollars; that the note so given to McClure was usurious and void; that Adams was indebted to

v.

Norton et al.

the orators and they recovered a judgment against him, at the RUTLAND, February, September term, 1830, of the county court for Rutland 1842. county for the sum of $978.25; that an execution issued upon Cannon et al said judgment and Adams was committed to jail thereon, and afterwards made application to be admitted to the poor debtor's oath; that, on that occasion, he made an assignment of all his interest in the demands in Norton's hands, to the ora tors; that Norton was present and had notice of, and then recognized the assignment, and admitted that he had five hundred dollars then in his hands, subject to said assignment when he should be exonerated from the note so given to McClure; that the note to McClure was surrendered up to Norton without payment and Norton was fully discharged therefrom on the sixth of January, 1836; that the orators then demanded of Norton the notes that had been indorsed to him by Adams for security, or the proceeds thereof, and Norton refused to deliver the notes to them, or account therefor to the orators; that after the assignment was made by Adams to the orators, and after notice thereof to Norton, the latter delivered said notes, or the moneys collected thereon, to the defendant Slason, and took a bond of indemnity from Slason, both against the note to McClure and the assignment to the orators. And the orators prayed that an account be taken of the proceeds of said notes indorsed by Adams to Norton; that the defendants be decreed to pay to the orators, &c., and for further relief.

The defendant, Norton, in his answer, admitted all the material facts alleged in the bill, except that part which charges that he admitted that he had the sum of $500 in his hands, subject to the assignment to the orators; that charge he wholly denied. And he alleged, that, in May, 1830, the defendant, Slason, notified him that Slason, together with Philip Pond and John Williams, had obtained the consent of Adams that the proceeds of the notes, indorsed by Adams to Norton, might be applied in part payment of debts due from Adams to Slason, Pond and Williams, as he believed, in equal proportions; that on the first day of August, 1830, the defendant with the consent of Adams, agreed to transfer and deliver all of said notes to them, and they agreed to give the defendant, Norton, their bond, in the penal sum of one thousand dollars, to indemnify him against the note given to

RUTLAND, February, 1842.

Connon et al

McClure; that afterwards a part of said notes, and a statement of the remainder, and their proceeds, in the hands of Orson Clark, were delivered by Norton to Slason, for Slason, Pond and Williams, and on the 22d day of June, 1831, Pond Norton et al. and Slason executed their bond to Norton to indemnify him against the note given to McClure and the assignment to the

Ο.

orators.

The defendant, Slason, in his answer, alleged, that in the summer of 1830, he, with Pond and Williams, agreed with Adams that they (Slason, Pond and Williams) should receive the benefit and proceeds of the demands indorsed by Adams to Norton on being indemnified against the note given by Adams and Norton to McClure, and that the defendant Slason, and Pond, did indemnify Norton against said note in the manner stated in Norton's answer; that the defendant, Slason, had never received any of the proceeds of the notes indorsed by Adams to Norton, except the amount due on certain notes against James Merrill and about thirty dollars on a note against Joseph Brown; that other of said notes had been placed in the hands of Orson Clark for collection and the money collected by him on such notes remained in Clark's hands, with the understanding that it was to be applied for the use and benefit of Pond, and that Pond, Williams, and the defendant, Slason, had not made a full settlement of said business among themselves.

The defendant, Slason, admitted that Norton had paid him a small sum to apply on his note against Adams; and he further alleged that all the proceeds of the notes so received of Norton were not sufficient to pay the sums that Adams justly owed to Slason, Pond and Williams.

The answers were traversed and testimony was taken. The facts found from the testimony sufficiently appear in the opinion of the court.

E. A. Ormsbee and O. Clark, for defendants.

I. Between two sets of creditors of an insolvent debtor, chancery will not interfere to take the assets from the possession of one and give them to another.

In the view of chancery, Slason and Pond have equally as meritorious a claim upon the notes indorsed by Adams to Norton as the orators have.