Law v. Stewart

15 F. Cas. 16, 3 D.C. 411, 3 Cranch 411

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1828
• Status: Published

Opinion

Cranch, C. J.,

delivered the opinion of the Court.

The Court is clearly of opinion that, under the circumstances stated in the bill and answer, Mr. Law has no equitable claim to have his rent first satisfied out of the trust fund. The deed of trust created a prior lien ; and the goods were upon the premises with Mr. Law’s consent, for the purposes of the trust.

As the trust fund has proved insufficient to pay the notes, the question arises, whether General Stewart is liable to contribute to make up the balance due upon them. According to the usual course of mercantile transactions he is not. In order to make him so, there must have been an agreement, or an understanding amounting to an agreement, to that effect.

The bill does not aver any such agreement or understanding, although it prays relief to that extent.

The answer denies any such agreement or understanding. This denial is strongly corroborated by the terms of the deed of trust, and by the facts stated by General Stewart, in answer to an allegation in the bill, that, upon one of the renewals of the note, the defendant, Stewart, became the drawer, and Mr. Law the indorser. Throughout the whole deed of trust, the distinct character of drawer and indorser, and of principal and surety, is kept in view.

We think, therefore, that General Stewart is not liable to contribution, and that, on both points, the bill must be dismissed, with costs.