Gouverneur & Bibby v. Tillotson , 3 Edw. Ch. 348 ( 1839 )

The Vice-Chancellor :

All that preceded the giving of the bond by the defendant and the entering into the agreement of the twelfth of March, one thousand eight hundred and thirty-eight, is merged in the bond and agreement. Whatever there was of a trust or of the nature of a trust cognizable in equity in relation to the money in the hands of the defendant, due and owing to the complainant Gouverneur or belonging to him and deposited with the defendant for a special purpose or otherwise, was converted, by the settlement and the acceptance of the bond, into an ordinary debt by specialty, payable upon the happening of the events or the performance of one or other of the conditions specified in the agreement. These are in the nature of conditions precedent, on the performance or happening of which events the complainant’s right to a demand of payment depends.

If the complainants’ bill is to be understood as averring that the events have taken place or that the conditions have been performed, which give them a right to call for the payment or the security stipulated to be given by the defendant, then, upon averring and proving the same facts, there will be no difficulty in his remedy at law upon the bond ; and the parties should be left to pursue such remedy there. If the bill does not contain all the requisite allegations and averments to show the legal right at this time to payment or security, then I know not upon what principle this court can interfere. It cannot proceed quia timet in behalf of a creditor against his debtor before the debt is payable, to compel payment or security, in anticipation of a loss from the debtor’s embarrassed condition or from his failing circumstances ; and it is not necessary that the complainants should come into chancery with this case in order to have the indemnity, which they profess to be ready and willing to give the defendant, adjusted and its sufficiency ascertained beforehand or to have the direction of this court as to the manner of appropriating the bond to the payment of the debt to the post-master general. These are acts to be done ; and they are not to rest merely in an offer to do them. And when an instrument of indemnity is executed and tendered to the defendant or he is exonerated from his suretyship in the bond to the post-master general or the defendant’s bond is “ appropriated,” as provided for in the agreement, the complainants must show and aver particularly the acts then performed, so that the court may judge of the sufficiency of the acts should they be disputed : Miller v. Drake, 1 Caines’ R. 46; 2 Saunders, 352, (n. 3); Cro. Jac. 363, 634. In short, the complainants must take upon themselves the risk, in the first instance, of the sufficiency of their acts as amounting to a performance of the conditions or terms of the agreement upon which the payment of the defendant’s bond is made to depend; and they must not come here beforehand and ask this court to instruct or direct them how and in what manner to perform those acts. The power is in their own hands; and their inability to exercise it, if such be the fact, is no ground for invoking the aid of this court in the matter.

The demurrer must be allowed ; and the bill be dismissed, with costs.