Coleman v. Walcott , 4 Day 6 ( 1809 )

By the Court.

The questions arising in this case are, whether the plaintiff has shown any cause of action; and if he has, whether he has remedy at law.

It is alleged in the declaration, that the defendant, with an intent to defraud the plaintiff of certain^sums of money advanced on a covenant set forth in the declaration, obtained from Taylor., a joint covenantee with the plaintiff, a release, by which he, the defendant, was discharged from such covenant, knowing that Taylor was a bankrupt, ánd that such money was justly due to the plaintiff. The plaintiff stands on the same footing as the assignee of a note, where the maker obtains a discharge from the assignor, knowing him to be a bankrupt, and having notice of the assignment. The plaintiff had in equity as strong a claim for the money advanced by him on the covenant as the assignee of'a note has to the money due upon it; and it was as fraudulent for the defendant to obtain a release from the joint covenantee, as for the maker to obtain a discharge from the assignor of a note.

The release entirely extinguished the ri^ht of the plaintiff by force of the covenant, without the judgment •of a court; and the pleading of it in bar of the action was sufficient evidence of the intent of the defendant to avail himself of it.

Formerly, in similar cases, it was holden, that relief could be obtained by bill in equity only; but courts of law have adopted the same principle, and suits have been entertained for such injuries, not only without experiencing any inconvenience, but with general acquiescence and approbation. So long and uniform has been this practice, that it is deemed a part of our common law.

When principles have been settled by the practice, and sanctioned by the experience of courts of chancery, it is highly expedient to incorporate them with the legal code, in cases where the same relief can be furnished. This has long been the usage of courts of law ; and they have borrowed many important and valuable improvements from that source.

It might as well be insisted that we should retrace our steps, and furnish relief in chancery only, in all the other instances where courts of law have adopted their principles, as in the case under consideration. But such a fluctuation between law and equity would be productive of the greatest inconvenience, uncertainty and confusion.

For these reasons, we are of opinion, that an action for this injury is sustainable at law.

Judgment reversed.

After the above decision, Daggett stated that a'motion for a new trial had been made, at the same time with the motion in arrest, in the court below. He therefore moved, that the cause should be remanded, to be proceeded with in the court below, in the same manner as though the motion in arrest had never been made. The court remanded the cause accordingly.