1816. Green V. NOVEMBER, tiff to his new action, when he may lawfully file the same Declaration again, and support his case by replying the Award, and assigning a breach; into which error he may have been duped by the informal plea of performance by the defendant? It is true, if the plaintiff has shewn, or if that has appeared by a verdict for the defendant, that he cannot make his case better, then a Repleader, as it could not conduce to substantial justice, would not be granted. Bailey. On this point the rule is that, where the party, for instance the defendant, confesses and avoids by such matter, as can never be made good by any manner of pleading; then judgment shall be given against him, as upon his own confession, with(a) 3 Salk. 121, out any regard to the issue ; (a) but otherwise, where he avoids by such matter, as would have been sufficient, if it had been well pleaded. And the distinction between a Repleader and a Judgment non obstante veredicto, is this, that where the plea contains a defective title, or ground of defence, by which it is apparent to the Court, upon the defendant's own shewing, that, in any way of putting it, he can have no merits, and the issue joined thereon be found for him, then, as awarding a Repleader could not mend the case, the Court will at once for the sake of the plaintiff, give judgment for him; but where the defect is in the manner of stating the defence, and the issue joined thereon is immaterial, so that the Court know not for whom to give judgment, there, for their own sake, they will award a Repleader: a judgment, therefore, non obstante veredicto, is always upon the merits, and never granted but in a very clear case; a Re(b) 1 Chitty,633. pleader is upon the form and manner of pleading. (b) This case, therefore, standing on a verdict for the plaintiff, and not on a Demurrer; and this verdict being found on an issue, joined upon a good Declaration; although the Replication has not supported that Declaration by clearly and sufficiently shewing a good cause of action; notwithstanding the matter set out in the plea ; yet, as it does not she w, that the plaintiff has no cause of action, I must consider it, as resting upon the form and manner of pleading; and, not being able to give judgment for either party; not for the defendant, because there is a verdict against him on the issue tendered by himself; nor for the plaintiff, because his Replication is insufficient, I must award a Repleader. 1816. Green V. Judge BROOKE. After Oyer of the Condition of the Bond NOVEMBER, had made it a part of the Declaration, the plaintiff ought by his Replication to have alleged a breach to sustain his Declaration. Having failed to do so, by replying generally to the Plea of Conditions performed, he is in no better situation than if he had recited the condition of the Bond in the Declaration, and omitted to aver a breach. It is true, the defendant could not succeed upon a Demurrer, after Oyer and before Plea; because, until the plaintiff had the opportunity to reply, he was well in Court. It would be an extraordinary case if the plaintiff could have Judgment on a Bond, conditioned to perform the Award of Arbitrators, without any allegation, that there was an Award, or failure to perform it, in any part of the pleadings. I am therefore of opinion, the Judgment must be arrested. On the 2nd question, which has occurred to the Court, to wit, whether a Repleader can be awarded, I am of opinion that this case does not come within the Rule laid down in Smith v. Walker's ex'ors., and other cases of the same import in this Court. In that case the Court refused to award a Repleader, because the plaintiff had not shewed a good action in his Declaration, and there was no good foundation to erect new pleadings on: but in this case, the Declaration was good until the Oyer of the defendant made the Condition of the Bond a part of it; and, as before remarked, he could not have demurred to it. The fault then is in the plaintiff's Replication, and not in the Declaration; so that here is a good foundation to erect new pleadings. On this ground, I am of opinion that a Repleader ought to be awarded. Judge ROANE. I am not entirely satisfied that a Repleader ought to be awarded in this case; because it does not appear from the Declaration, (as amended by the Oyer) or from the Replication, that any Award exists, or has been broken. It is not known to the Court, that the Appellee has any cause of action: and, therefore, I am not certain that we ought, by awarding a Repleader, to detain the Appellant in Court. On this point I have not formed a conclusive opinion: but, as the Bailey. other Judges are clear that a Repleader should be awarded, one is to be awarded accordingly. Judgment reversed; the pleadings, and other proceedings, subsequent to the Plea, set aside; and a Repleader awarded. Decided Nov. 27th 1816. 1. On a Bill exhibited by the endorsers ; to endorser of a Chalmers, Jones & Co. against McMurdo. THE Appellee exhibited his Bill on the 29th May 1811, in holder of a Pro the Supreme Court of Chancery for the Richmond District, missory Note against the ma- against the Appellants, with Chepmel, La Serre & Co. John ker and all the Bell, surviving partner of John and William Bell, and Conway avoid circuity and Fortescue Whittle, defendants; setting forth, that the deof action, the fendants, Conway and Fortescue Whittle, in payment of a Debt Court of Equity may fix the debt due to the plaintiff, endorsed to him two notes negotiable at on the person first responsible. the Office of Discount and Deposit of the Bank of Virginia See Rev. at Petersburg, one for $1500, the other for $1063,55, executCode, 2d vol. ch. 108. sect. 3. ed by the defendants Chepmel, La Serre & Co., and endorsed p. 135. 136. by John and William Bell, and Chalmers, Jones & Co.; that, 2. The first" on receipt of them, without notice of any equitable circumNote in point "stances which any of the said parties, except the said John of time, is not, and William Bell, might have against any others," the plainresponsible. tiff applied for payment, first at the Counting House of Chep3.If the payee of mel, La Serre & Co., (the makers of the Notes,) but found that a note write his they had failed and left the country; next to John and William of a person who Bell, but they replied that Chalmers, Jones & Co., exclusively, ought to pay the said Notes, because they averred that the sed to do so ex- same were executed by Chepmel, La Serre & Co. as a payment cept upon the ground of the from them to Conway and Fortescue Whittle, to whom they were responsibility of indebted, and that, immediately after being so executed, they the payee as first endorser; were endorsed by Chalmers, Jones & Co., and, with the enhe thereby dorsement of the latter on them, (and the said John and Wm. responsible, as Bell had previously, on behalf of the said Whittles, insisted on such, in point of contract, a good endorser,) they were delivered to the said John and Wm. though second of course, first name over that endorsed it in blank, but refu makes himself ia point of time. 4. An Agent endorsing a Note for the benefit of his principal, who assures him that he shall not be held responsible, ought not to be compelled to pay the money at the suit of a person, to whom the Note is endorsed, with notice of such equity; but the Decree should be against the principal. And, it seems, if the endorsee had no such notice, yet, if the principal be solvent, the Decree ought still to be against him in the first place. 1816. and Co. V. M'Murdo. Bell, who, having long acted as the friends of the said Conway NOVEMBER, and Fortescue Whittle in Petersburg, and having the highest opinion of their credit and punctuality, as well as of their ho- Chalmers, Jones nor, did not except to the circumstance of the said Notes being made payable to themselves, but, indiscreetly, as they alleged, endorsed their names above those of Chalmers, Jones and Co., and remitted the said Notes to the said Whittles, on their positive promise that they would never consider the said John and William Bell, liable in consequence of such endorsement. Lastly, the plaintiffs applied to Chalmers, Jones and Co. who did not admit the statement of John and William Bell to be correct. On the ground that Chepmel, La Serre & Co. might be sued in equity as absent defendants, and to avoid circuity of action, the plaintiff prayed the Court to fix the debt on the person in truth first responsible for it. The Bill was regularly taken for confessed as to the defendants Chepmel, La Serre & Co. and Conway and Fortescue Whittle. The defendant Bell answered, that John and Wm. Bell, being requested by Conway and Fortescue Whittle to collect a Debt due them from Chepmel, La Serre & Co., applied to the latter for the same; when it was agreed that the said debtors should give their negotiable notes, with one or more approved endorsers; and, accordingly, the next day, they sent the two Notes in question, with the endorsement of Chalmers, Jones and Co. thereupon, but made payable to John and Wm. Bell; that this defendant disapproved of their being made so payable, and sent them back, to be executed anew, and made payable to Chalmers, Jones & Co., by whom they might then be endorsed; but Chepmel, La Serre & Co. returned them afterwards to this defendant, assuring him "that they must be "taken as they were, or that none could be obtained, for they "could not procure any others, nor these in any other form:" that this defendant then received the Notes, and wrote the name of "John and Wm. Bell" over that of "Chalmers, Jones and Co." in order to make them negotiable, without consideration, and purely to oblige Conway and Fortescue Whittle; of which the said Whittles, being apprised, assured him that John and NOVEMBER, William Bell should never be held by them responsible, or 1816. Chalmers, Jones and Co. V. words to that purport. Chalmers, Jones & Co. also answered, and admitted that they were in point of time the first endorsers, but insisted that, in M'Murdo. point of contract, and in the very nature of the transaction, John and William Bell, the payees, were obliged to be the first endorsers, and themselves only second endorsers; and, but for their knowing that John and William Bell must endorse before them, they would not have endorsed at all. The Notes were the only exhibits, and no depositions were taken in the cause. 66 Chancellor TAYLOR, "being of opinion that, in a Court of Equity, a remote endorser of a Promissory Note may be "made liable, in the first instance, under proper circumstances, to the claim of the holder, so as to avoid that circuity "of action, which such holder, according to the forms of the "Common Law, would be compelled to undergo by prosecut"ing the drawers and endorsers thereof according to their priority and succession; and being farther of opinion, from the "facts disclosed by the defendants, Bell, and Chalmers, Jones "and Co. in the present case, that the latter, though apparent“ly remote endorsers on the Notes in the Bill mentioned, did "in fact endorse the same before the former, and as securities to the same," therefore decreed, that the said defendants Chalmers, Jones & Co. pay to the plaintiffs the amount of the said Notes, with interest and costs. From which Decree they appealed. Leigh for the Appellants admitted that the Court of Equity had jurisdiction in this case; but contended that, from the nature of the contract, the payees, John and William Bell, were necessarily the first endorsers; and that, without a special contract, that the Appellants would be responsible as first endorsers, (which is not pretended) they could only be held responsible as second endorsers. Call for the Appellee. Chalmers, Jones & Co. were first endorsers in fact. They state themselves that their names were first written. A man who does so subjects himself to any su |