Mr. Justice Thompson
delivered the opinion of the Court.
This case comes up by appeal from the Circuit Court of the District of Columbia for the county of Alexandria. The. object of the bill filed in the Court below, was to obtain relief against a judgment at law recovered against Shreeve, the appellee, upon certain bonds given by him to Elisha Januey, and which bonds had been assigned to the appellant, Scótt, as his trustee, for the benefit of his creditors.
In the progress of the cause, it was deemed necessary In the Court, that the Bank of Potomack should, be made u party defendant. A supplemental bill for that purpose was accordingly filed, and the bank made a party.
The first inquiry that seems naturally to arise is,.how the case stood as between Shreeve and Januey, .the original parties to the bonds. The material facts upon which the complainant in the Court below relied for relief, are not denied by the answer of Scott. ' From the bill and answer, and exhibits in the cause, accompanied by a written agreement between the solicitors of the parties, before the cause was set down for argument, the leading facts in the case appear to be, that some time in the year 1808, Shreeve failed m business,' being indebted to the Batik of Potomack in the sum of 6.300 dollars, upon a note discounted at the hank,
anfl upon which Janney was the endorser; for whose security Shreeve transferred to him, and John Roberts, who was also his endorser upon other notes, certain property at a valuation, but which, upon settlement of accounts between them, fell short of Janney’s responsibility to the ba'nk upon his endorsement, 1.980 dollars 88 cents; for which, by agreement between the parties, Shreeve gave to Janney five bonds, payable in five annual instalments, and Janney was to pay the note to the bank, upon which he wás the endorsee The note, however, was continued running in the bank in.its original form, Janney appearing responsible as endorser only. This noté Was renewed from time to time until the 19th of May, 1809, when, by the payments which had. been made by Janney out of the property assigned by Shreeve; it was reduced to the sum of 3,306 dollars; and Janney .himself having failed about this timé, no-further payments were made upon this ,r|ofe until the month of June, 1818. when Shreeve, after a long absence, returned to Alexandria, and was called upon by ■ the bank for pay-. ment of his note, upon which he paid the sum of
3,355
dollars 29 cents, being the amount of principal and interest due upon the five bonds which he had given.to Janney.
Upon this brief statement of the facts as between Shreeve and Janney, it will be 'seen, that Shreeve was exposed to a double responsibility for the same debt. He was liable on his note held by the bank, (unless the bank may be considered as having assented to the, arrangement, and accepted Janney as solely responsible on the note, which will be hereafter considered,) and he was also liable to Janney on the bonds which he had given him. For the purpose of in-, demnifying Shreeve against his responsibility to the bank, Janney gave him the instrument bearing date the'1st of March, 18t)9, acknowledging that Shreeve had satisfied him by his bonds of the '28th of February, 1809, for all demands against him as security at bank, and for all other accounts ; and that the note attove referred to, although originally discounted for the use of Shreeve, was continued in his ríame, but for the convenience of him, Janney, and Engaging to save Shreeve harmless from the said note, and in due time to take it Up.
The plaintiff below entitled ,e having a compíete nnn ade(pmte remedy law’
An objection is here made to sustaining this bill in equity, because there was a complete and adequate remedy at law. But this objection cannot be sustained. The bonds given by Shreeve to Janney were simply for the payment of mo_ney, and although the consideration for which they were given had failed by-Janney's neglect to pay up the note in the Bank of Potomack according to his engagement, this could not have been set up at law as a defence in the suit r upon the bonds; nor could he. in that suit, have set off the amount paid to the bank upon his note. The engagementat of Janney, on assuming the payment of the note to the bank, was a contract of indemnity only, and rested in damages, and could never form the subject of a set-off at law ; and although an action at law mightbe maintained against Janney upon this indemnity, it would be going too far, even if Janney was solvent, to say, that a Court of equity could not interpose and stay a recovery upon the. bonds, but that the party m’u,st be turned round to his remedy at law upon his indemnity. But, in the present case, it would be gross injustice. and a certain denial of all remedy, to refuse relief on this ground.'Jaimey having become insolvent. There was, then, no defence at law which Shreeve could have set up against these bonds, nor had he any other remedy at law to which he was bound to resort.
Was there, then, any defence which h > could have set up against a suit upon his note if he had pennitied the bank to prosecute him ? N use is perceived by the Court. He stood upon the note as maker, and was liable to the bank as such; and although, by the agreement between him and Janney, the note was continued in that form for the convenience of Janney, yet the bank was no party to that arrangement, and could not be bound by it. Even admitting the knowledge of that agreement by the bank,' it certainly could not have been setup as a defence to the note, unless it could be shown, that there was an express or implied agreement to accept Janney as the debtor, and to discharge Shreeve.
It lias been urged, however, on the part of the appellants, that the statute of limitations had run against the note, and that Shreeve might and ought to have availed himself of if,
, . iiót bound to statutToflimitations.
The assignee hel<íbtto btake tfiero, subject tie”, existing origina” parties.
R the statute of limitations had run against this note, and might have been pleaded, we should be very unwilling to say that Shreeve was bound to plead it. It is a defence which a party may often avail himself of with great justice and propriety. But whether he will or not, must be left to his own election, it is, however, unnecessary to inquire into the or obligation of Shreeve to have pleaded the statute, under .the circumstances of the case, because we do not think it1 could have been set tip as a defence to the action.
The letter of license given by the bank to Shreeve bears date on the 12th January, 18CÍ9, and was for the term of seven years, which, of course, expired in January, 1816. It certainly cannot be pretended that the statute ran during the continuance of this letter of license. Payment of the note was demanded by the bank, and made by Shreeve, in June, 1818, about-two years and five months after the expiration of the letter of license, a period much within the time necessary to bar the action.
-The next inquiry is, whether Scott, the assignee of Janney! has acquired any greater right or interest in .these bonds than Janney himself had.
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Mr. Justice Thompson
delivered the opinion of the Court.
This case comes up by appeal from the Circuit Court of the District of Columbia for the county of Alexandria. The. object of the bill filed in the Court below, was to obtain relief against a judgment at law recovered against Shreeve, the appellee, upon certain bonds given by him to Elisha Januey, and which bonds had been assigned to the appellant, Scótt, as his trustee, for the benefit of his creditors.
In the progress of the cause, it was deemed necessary In the Court, that the Bank of Potomack should, be made u party defendant. A supplemental bill for that purpose was accordingly filed, and the bank made a party.
The first inquiry that seems naturally to arise is,.how the case stood as between Shreeve and Januey, .the original parties to the bonds. The material facts upon which the complainant in the Court below relied for relief, are not denied by the answer of Scott. ' From the bill and answer, and exhibits in the cause, accompanied by a written agreement between the solicitors of the parties, before the cause was set down for argument, the leading facts in the case appear to be, that some time in the year 1808, Shreeve failed m business,' being indebted to the Batik of Potomack in the sum of 6.300 dollars, upon a note discounted at the hank,
anfl upon which Janney was the endorser; for whose security Shreeve transferred to him, and John Roberts, who was also his endorser upon other notes, certain property at a valuation, but which, upon settlement of accounts between them, fell short of Janney’s responsibility to the ba'nk upon his endorsement, 1.980 dollars 88 cents; for which, by agreement between the parties, Shreeve gave to Janney five bonds, payable in five annual instalments, and Janney was to pay the note to the bank, upon which he wás the endorsee The note, however, was continued running in the bank in.its original form, Janney appearing responsible as endorser only. This noté Was renewed from time to time until the 19th of May, 1809, when, by the payments which had. been made by Janney out of the property assigned by Shreeve; it was reduced to the sum of 3,306 dollars; and Janney .himself having failed about this timé, no-further payments were made upon this ,r|ofe until the month of June, 1818. when Shreeve, after a long absence, returned to Alexandria, and was called upon by ■ the bank for pay-. ment of his note, upon which he paid the sum of
3,355
dollars 29 cents, being the amount of principal and interest due upon the five bonds which he had given.to Janney.
Upon this brief statement of the facts as between Shreeve and Janney, it will be 'seen, that Shreeve was exposed to a double responsibility for the same debt. He was liable on his note held by the bank, (unless the bank may be considered as having assented to the, arrangement, and accepted Janney as solely responsible on the note, which will be hereafter considered,) and he was also liable to Janney on the bonds which he had given him. For the purpose of in-, demnifying Shreeve against his responsibility to the bank, Janney gave him the instrument bearing date the'1st of March, 18t)9, acknowledging that Shreeve had satisfied him by his bonds of the '28th of February, 1809, for all demands against him as security at bank, and for all other accounts ; and that the note attove referred to, although originally discounted for the use of Shreeve, was continued in his ríame, but for the convenience of him, Janney, and Engaging to save Shreeve harmless from the said note, and in due time to take it Up.
The plaintiff below entitled ,e having a compíete nnn ade(pmte remedy law’
An objection is here made to sustaining this bill in equity, because there was a complete and adequate remedy at law. But this objection cannot be sustained. The bonds given by Shreeve to Janney were simply for the payment of mo_ney, and although the consideration for which they were given had failed by-Janney's neglect to pay up the note in the Bank of Potomack according to his engagement, this could not have been set up at law as a defence in the suit r upon the bonds; nor could he. in that suit, have set off the amount paid to the bank upon his note. The engagementat of Janney, on assuming the payment of the note to the bank, was a contract of indemnity only, and rested in damages, and could never form the subject of a set-off at law ; and although an action at law mightbe maintained against Janney upon this indemnity, it would be going too far, even if Janney was solvent, to say, that a Court of equity could not interpose and stay a recovery upon the. bonds, but that the party m’u,st be turned round to his remedy at law upon his indemnity. But, in the present case, it would be gross injustice. and a certain denial of all remedy, to refuse relief on this ground.'Jaimey having become insolvent. There was, then, no defence at law which Shreeve could have set up against these bonds, nor had he any other remedy at law to which he was bound to resort.
Was there, then, any defence which h > could have set up against a suit upon his note if he had pennitied the bank to prosecute him ? N use is perceived by the Court. He stood upon the note as maker, and was liable to the bank as such; and although, by the agreement between him and Janney, the note was continued in that form for the convenience of Janney, yet the bank was no party to that arrangement, and could not be bound by it. Even admitting the knowledge of that agreement by the bank,' it certainly could not have been setup as a defence to the note, unless it could be shown, that there was an express or implied agreement to accept Janney as the debtor, and to discharge Shreeve.
It lias been urged, however, on the part of the appellants, that the statute of limitations had run against the note, and that Shreeve might and ought to have availed himself of if,
, . iiót bound to statutToflimitations.
The assignee hel<íbtto btake tfiero, subject tie”, existing origina” parties.
R the statute of limitations had run against this note, and might have been pleaded, we should be very unwilling to say that Shreeve was bound to plead it. It is a defence which a party may often avail himself of with great justice and propriety. But whether he will or not, must be left to his own election, it is, however, unnecessary to inquire into the or obligation of Shreeve to have pleaded the statute, under .the circumstances of the case, because we do not think it1 could have been set tip as a defence to the action.
The letter of license given by the bank to Shreeve bears date on the 12th January, 18CÍ9, and was for the term of seven years, which, of course, expired in January, 1816. It certainly cannot be pretended that the statute ran during the continuance of this letter of license. Payment of the note was demanded by the bank, and made by Shreeve, in June, 1818, about-two years and five months after the expiration of the letter of license, a period much within the time necessary to bar the action.
-The next inquiry is, whether Scott, the assignee of Janney! has acquired any greater right or interest in .these bonds than Janney himself had. So far as relates to the question, whether the consideration had failed, the assignee stands Precise*y *n the situation of the original party. He took the bonds.subject to all existing equities. This is the settled rule in chancery, and that which is recognised by the laws of Virginia which are in force in Alexandria. Nor has any thing occurred, since the assignment, to give to Scott or the creditors of Janney any additional rights. These bonds were assigned by Janney as his own property, and for the benefit of his own creditors, which was a violation of the trust and confidence reposed in him by Shreeve. They were, given expressly, according to the agreement of the parties, to provide for the payment of the note to. the bank of Potomack; and it is admitted that no part of this note has been paid out of the funds of Janney. The note had been reduced from $6,300 to $3,306, at the time Janney failed in the spring of 1809; bfit these payments were made out of Shreeve’s funds, as-i signed by Janney to Roberts by the deed of the 11th of August, 1808- And it is also admitted that Scott, the assignee.
has made no payments upon this note since the assignment .to him. The creditors of Janney have, therefore, been.deprived pf none of his fuuds, nor can they.have any right to claim the benefit of those bonds, which must be deemed to have been held by Janney in trust fop the bank,' and not as his own property.
Rema¡n¡ng inquiry, whe. '¿ccdpted or, and dis-p^hniff.
The o y remaining inquiry is, whether the bank, by any express or implied agreement, accepted Janney as thqir debtor, and discharged Shreeve from his responsibility.
The answer of the appellant, Scott, alleges, that Janney considered himself as háving assumed the payment of. the note in question, and that he was considered debtor to the bank for the same, and was solely relied upon by the bank for the payment of the note. That he believed the bank had full knowledge of the deed of the 11th of August, 1808, by which provision was made for the payment of the note, and were satisfied with it. And he further alleges, that the bank was so well satisfied with this provision, that it considered neithejr Janney nor Shreeve liable for it.
If these allegations were supported by proof, they would go far, if no.t conclusively, to show that the bank had' adopted Janney as solely responsible for the ■ note, and had discharged Shreeve. If so, the payment by Shreeve would be. considered voluntary, and without any legal obligation, and would form no objection to the. recovery on the bonds.
The bank, however, denies it was a party to the arrangement made by the deed of the 11th of August, 18Q8, pf that it made any stipulation or agreement with Shreeve op Janney, in any mariner connected with that deed, unless the order of the 12th of January, 18Q9, (the .letter of license,) be considered as connected with it. The answer further denies, that the bank ever did release, or agree to release, Shreeve, or that it ever , did look solely to. Janney, qr the trust estate created.by the deed of the 11th of August, 1808, It admits, that when this deed was executed, Janney and Roberts were both directors of the1 bank, bu.t avers, that no proposition in relation to it ever came before the board previous, to the 12th of January, 1809, when the lettér of license was granted to Shreeve, with the concurrence of-Janney . and Roberts, sitting and acting as directors of the bank/
The answer of Scott is not evidence against the bank, and his allegations with respect to the bank’s having accepie(j janney as the sole debtor lor this note, are entirely unsupported by proofs, and must be laid out of view, as they are positively denied by the answer of the bank, and which answer is strongly supported by ihe order, for the letter of license, which was granted subsequent to the arrangement between Shreeve and Janney. For, if the bank had considered Shreeve exonerated from the payment of’ the note, there could have been no necessity for. or propriety in, giving him a letter of license. Indeed, it would have been absurd to give a letter of license to a man who was not a debtor to the bank. The order for this purpose is cautiously drawn, so as to retain the responsibility-of both maker and endorser. The indulgence is granted express!) upon the condition that it is sanctioned by Janney, and without lessening the right of the bank against him.
Nor is the bank chargeable with negligence that can in any manner prejudice its rights, or of which the appellant has any right to .complain. The indulgence was granted with the concurrence of Janney, and underan impression,- no doubt, by all parties, that the trust fund created by the deed of the llth of August, 180" would be sufficient, to satisfy this note. And it was upon this supposition, no doubt, that the letter of license-for seven years was granted to Shreeve. No steps would be taken
<
gainst him until the expiration ,of that time, and demand of payment was made as soon thereafter as he returned to Ale' .andria.
The utmost, then, that can be alleged against the bank, is, that it had full knowledge of the provision made' by the deed of the llth of August, 1808, for’.the payment of this note. And, admitting that provision to have been 'amply sufficient, it would not hind .the bank without its assent to resort to that fund alone, and discharge the parties to the note. The bank could have no objection to the provision made by that deed for the payment of the note, as it would add to its security if the maker and endorser were also held responsible. And the proceedings in relation to the letter of license are conclusive to show, that it was the understanding of all parties, that the bank had not, at that
time, relinquished its claims upon Janney and Shreeve for the payment of the note.
We are, accordingly, of opinion, that the decree of the Court below, granting a perpetual injunction against the appellant, and a dismission of the bill as to the bank, be affirmed. with costs.
i"Bnt the assertion, that, although the original contract in this case was not extinguished, the suspension of the right ofaction took away the jurisdiction of the admiralty, so that it could not-again be resorted to.