LENOX V. PROUT, 16 U. S. 520 (1818)

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U.S. Supreme Court

Lenox v. Prout, 16 U.S. 3 Wheat. 520 520 (1818)

Lenox v. Prout

16 U.S. (3 Wheat.) 520


The endorser of a promissory note, who has been charged by due notice of the default of the maker is not entitled to the protection of a court of equity as a surety; the holder may proceed against either party at his pleasure, and does not discharge the endorser by not issuing or by countermanding an execution against the maker.

By the statute of Maryland of 1763, ch. 23, s. 8, which is perhaps only declaratory of the common law, an endorser has a right to pay the amount of the note or bill to the holder, and to be subrogated to all his rights by obtaining an assignment of the holder's judgment against the maker.

The answer of a defendant in chancery, though he may be interested to the whole amount in controversy, is conclusive evidence if uncontradicted by the testimony of any witness in the cause.

The facts of this case were as follows:

William Prout, the plaintiff in the court below, on 29 July, 1812, endorsed without any consideration a promissory note made by Lewis Deblois in his favor for $4,400 payable in thirty days after date. This note was discounted by the defendants as trustees for the late Bank of the United States for the accommodation and use of the maker, and not being paid, an action was brought against him and another against the endorser in the name of the trustees, and judgment rendered therein in the same circuit court in the term of December, 1813.

In the April following, Prout, fearful of Deblois'

Page 16 U. S. 521

failure, called on the defendant Davidson, who was agent of the other defendants, and requested him to issue a fieri facias on the judgment against Deblois, promising to show the marshal property on which to levy. On 16 April or thereabouts, Davidson directed an execution of that kind to issue, and Prout, on being apprised thereof, offered to point out to the marshal property of the defendant and to indemnify him for taking and selling the same. But before anything further was done, Davidson countermanded this execution, and on 2 May, 1814 or thereabouts a ca. sa. was issued against Deblois by the clerk through mistake, and without any order of Davidson or the other defendants. This was served on Deblois on 10 May, who afterwards took the benefit of the insolvent laws in force within the District of Columbia, the effect of which was to divide all his property among his creditors, whose demands were very considerable. It appears from the evidence probable that if the fieri facias had been prosecuted to effect, a great part of the money due on the judgment against Deblois, which had been recovered on the note endorsed by Prout, would have been raised, and the latter, in that case, would have had to pay but a small sum on the one against him. But as matters stood, little or nothing was expected from the estate of Deblois, and of course no part of the judgment against Prout could be satisfied in that way, but the whole still remained due and unpaid.

The fieri facias appears to have been countermanded

Page 16 U. S. 522

the day after it was received by the marshal, of which Prout had notice soon after.

On these facts, the circuit court decreed that the appellants should be perpetually enjoined from proceeding at law on the judgment which they had obtained against Prout, and that they should also pay him his costs of suit to be taxed. From this decree the defendants below appealed to this Court.

Page 16 U. S. 525

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