
    Robson & Allen vs. Benton & Manchester Railroad & Banking Company.
    The rights of parties must be determined, according to the law, as it stood when the suit was commenced and process served ; if, therefore, a party is entitled to relief at the time he institutes his suit, nothing which subsequently occurs, without his instrumentality, can deprive him of that right.
    The act of 1840, requiring all banks in this state to receive their own issues in payment of all debts due to them, when attempted to be applied to the creditors of the banks, is in derogation of common right, and must be strictly construed ; where, therefore, the judgment creditors of a bank filed a bill against the bank, and the judgment debtors of the bank, after an execution on their judgment against the bank had been returned nulla bona, praying that the judgment debtors of the bank be required to pay the amount of their judgment against the bank ; it was held that the complainants were not bound to receive the issues of the bank, or anything but gold and silver in payment of their debt. If the debtors to the bank had offered to pay the bank, or had been in readiness to do so by the possession of the notes of the bank, before the filing of the bill, the rule would have been otherwise.
    By the act of 1840, the banks in this state were prohibited from transferring their evidences of debt, and were required to receive their own issues in payment of all debts due them; but if a bank do transfer a note and the assignee institute suit thereon in his own name, and the defendant fail to plead the transfer in abatement, he will be held to have waived his right to object to the transfer, and will be compelled to pay in gold and silver.
    R. & A. having obtained a judgment against the Benton Bank for $1573, and the bank being insolvent, they filed their bill on the 22d day of May, 1840, to subject a judgment which the bank had recovered against Y. and others for $4206, to the payment of the judgment in their favor against the bank, and enjoined Y. and others from paying their debt to the bank ; at the time the injunction was granted, the notes of the bank were worth only fifty-six cents on the dollar; held, that R. & A. could not be compelled to receive ■ the issues of the bank in payment of their debt; but inasmuch as Y. and others, under the act of 1840, had the right to pay the bank in her own issues before they were enjoined from doing so, the value of those issues at the time they were enjoined should constitute the measure of their liability ; and therefore they were entitled to a credit of one dollar, on their debt to the bank, for every fifty-six cents they were required to pay R. & A.; and they could not in equity be compelled to pay more than would, at that rate, be sufficient to discharge their indebtedness to the Bank.
    On appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.
    On the 22d day of May, 1840, James M. Allen, Richard H. Allen, and James I. Robson, who were co-partners under the name and firm of Robson & Allen, filed their bill in the superior court of chancery, alleging that, on the 7th day of December, 1839, they recovered a judgment, in the circuit court of Yazoo county, against the Benton and Manchester Railroad and Banking Company, for the sum of fifteen hundred and seventy-three dollars and twenty-nine cents, and costs of suit; upon which a writ of fieri facias was regularly issued, and returned by the sheriff, “ no property foundand that the bank had no property on which a levy could be made ; that on the first Monday of May, 1840, the bank, by the forfeiture of a forthcoming bond, returnable to the Yazoo circuit court, obtained a judgment against Burton Yandell, James R. Burrus, William M. Yandell, Philip J. Burrus, James Morton, John M. Sharpe and William C. J. Burrus, for the sum of four thousand two hundred and ninety-six dollars and seventy-eight cents, which remains in full force, and unsatisfied; that if permitted to collect this sum or judgment, she will fraudulently appropriate it to some other purpose than the payment of the judgment in favor of complainants.
    The Benton and Manchester Railroad and Banking Company, Burton Yandell, James R. Burrus, William M. Yandell, Philip J. Burrus, James Morton, John M. Sharpe, and William C. J. Burrus, were made defendants, and the prayer was for an injunction; and that Burton Yandell and others be decreed to pay the judgment in favor of complainants against the bank, and for general relief. Upon this bill an injunction was granted by the Hon. John Battaile. The bill was taken for confessed against the bank. The other defendants answered, admitting all the allegations contained in the bill; but averring that about nineteen hundred dollars had been paid by William M. Yandell on the judgment recovered by the bank against Burton Yandell and others ; and that, in 1840, an act was passed by the legislature of the state of Mississippi, and approved on the22d day of Feb., 1840, by which it was provided that all banks in this state should at all times receive their respective notes at par in the liquidation of their bills receivable, and other debts due them; that Benton Bank had many notes in circulation, which were much under par, and they had the right to pay their debt in such notes; that they had no objection to paying such notes, or their value, to be ascertained by the court, to the complainants at such time and in whatever manner the court might.direct, provided the bank was decreed to credit them with the amount so paid, or be enjoined from collecting it from them; and they offered to pay the bank notes, or their value, as the court might direct. On the 13th day of January, 1842, the same defendants, by leave of the court, filed an amended answer, averring that the notes of the Benton and Manchester Railroad and Banking Company were only fifty-six cents on the dollar in par funds; and that they were perfectly willing a decree should be rendered against them for the value of the notes at that rate. On the 28th day of February, 1842, the cause having been submitted on the bill, answer and amended answer, pro confesso against the bank, and exhibits, the chancellor rendered a final decree, ordering the defendants, Burton Yandell and others, to pay to the,complainants the full amount of their judgment against the bank, together with all interests and costs; that the bank be perpetually enjoined from collecting from them the amount they were required to pay to the complainants, and that injunction, as to the residue of the judgment in favor of the bank, be dissolved. In May, 1842, the defendants, Burton Yandell and others, by leave of the court, filed their bill of review, reciting the substance of the original bill, answers, exhibits, and the final decree rendered thereon, and averring that there was manifest error on the face of the decree, for which the same should be reversed; that by the terms of the decree they were required to pay Robson & Allen the sum of dollars in gold and silver, and were left at liberty to discharge the residue of the judgment against them in the notes of the batik; that the act of the legislature, passed before the original bill was filed, guaranteed to them the right to pay off the judgment, recovered by the bank against them, in the notes of the bank, which were not worth, at the time of filing the original bill, nor then, more than sixty cents on the dollar; that by the decree they were required to pay as much or nearly as much to Robson & Allen as the law required them to pay in discharge of their entire indebtedness to the bank. They further averred that in one of the answers filed to the original bill, it appeared that about the sum of eighteen hundred dollars had been paid on the judgment against them, before the injunction was served on them, and yet no notice was taken of that payment in the decree, and they were therefore, by the terms of the decree, compelled to pay it; that they were most seriously injured by the decree, as they would not only lose irreparably the eighteen hundred dollars which had been paid before the injunction was served, but they would also lose the difference between the notes of the bank, aud gold and silver, to the extent of the sum they were required to pay Robson & Allen. They further aver that the decree was obtained against them by direct fraud on the part of the former solicitor of Robson & Allen, and by a combination and conspiracy between him and the banking company, or their agent. They averred that the. reason why no proof was introduced, on the hearing of the cause, of the value of the notes of the bank, was because there was a written agreement between the solicitor of Robson & Allen and James R. Btirrus, that the notes of the bank were to be valued at fifty-six cents on the dollar, and scaled at that rate; which written agreement the solicitor agreed to file among the papers in the cause and be governed by it as a fact proved; that the agreement was not filed, and it was insisted at the trial that no proof was adduced of the value of the notes of the bank, and thus their rights were materially prejudiced. The prayer was, that the former decree be reviewed and corrected in such man-neras wasconsistent withequityandgoodconscience; and that all proceedings be stayed on the former decree until the final hearing, &c. The answer of Robson & Allen to the bill of review denied that there was any error in the former decree; they stated (hat they did not, of their own knowledge, know anything of the proceedings and steps taken by their solicitor; but they were informed by him, and believed, the charge of fraud made in the bill of review was utterly'unfounded and untrue; that no such agreement as that specified in the bill of review or in any other form or shape, was at any time entered into ; that the cause went fairly to trial, and no advantage was taken by their solicitor in any way of complainants. Respondents averred that they were informed and believed that if the eighteen hundred dollars, mentioned by complainants, had ever been paid at all, it was after the service of the injunction, and paid as a favor to the cashier of the bank, and with the view of defrauding respondents ; that there was no evidence offered of such payment, and the court did not err, therefore, in not allowing it.
    The deposition of "William M. Yandell, taken by the complainants, proved that deponent, on the 17th day of April, 1840, paid John J. Michie, collecting attorney and agent of the Benton and Manchester Railroad and Banking Company, the sum of eighteen hundred dollars, in part satisfaction of the judgment recovered by the bank against Burton Yandell and others mentioned in the original bill; that at the time of making the payment he had not been served with the injunction at the suit of Robson & Allen ; the notes of the bank were worth about •sixty cents on the dollar at that time, and had ranged from fifty to sixty cents on the dollar ever since. Being cross-examined he said'he paid the eighteen hundred dollars in the notes of the Mississippi Union Bank; that he knew at that time suit had been talked of, but he did not know that an injunction had been served on John J. Michie. The deposition of James R. Burrus, taken by complainants, proved that the injunction was sued out by his instigation; that he employed William E. Anderson to write the answer of defendants to the original bill, and after the death of Judge Anderson, in the fall of 1841, James R. Clark, the solicitor for Robson & Allen, had repeated conversations concerning the suit, and it was ultimately agreed that the notes of the bank were worth fifty six cents on the dollar ; that Clark wrote the amended answer of the defendants filed in the cause, and he signed it, Clark agreeing that it was unnecessary to adduce proof of the value of the notes of the bank, as he would admit the amended answer as proof for scaling the notes ; that the agreement was not written out because deponent believed Clark did not want more than a conversion of the notes of the bank into good money, which he believed he could make out of the defendants after the notes were scaled according to agreement; that it was further agreed between Clark and deponent, that the payment of eighteen hundred dollars made by William M. Yandell should be allowed ; and the notes of the bank should be scaled at fifty-six cents on the dollar, and the defendants should make no further resistance to a decree; and that he did not therefore employ any other counsel, after Judge Anderson’s death, to defend the case. On cross-examination he said if the name of Robert Hughes was marked as counsel for the defendants it was not at his request, and he did not think it was; that Judge Hughes, however, was a partner of Judge Anderson, and the firm name might have been subscribed to the answer of defendants, though he never consulted the firm on the subject.
    The deposition of James R. Clark, taken on behalf of the defendants, proved, that he was the sole solicitor employed by Robson and Allen, and that he employed R. S. Holt to argue the cause for him and obtain a decree; that he never entered into any such agreement as that spoken of in the deposition of James R. Burrus, and never intended, from the commencement of the suit, to wave any legal advantage or dispense with any proof it was incumbent on the defendants to make, as he did not consider that he had any right to do so; that he never agreed to admit the payment of the eighteen hundred dollars, for he always believed the payment was made after the service of the injunction; and that the charges of fraud and conspiracy made in the bill of review, were utterly without foundation in fact. On being cross-examined he said he never agreed that the notes of the bank should be valued at fifty-six cents on the dollar; that he proposed the amended answer of the defendants to James R. Burros and wrote it for them, and James R. Burrus signed it; that his reason for proposing such an amendment to his answer was, that he was doubtful at that time upon whom the burden would lie to prove the value of the bank notes, and he wanted the amended answer because he knew that would be evidence for complainants, but not for the defendants; that he wanted the evidence for the complainants only out of abundant caution; that James R. Burrus frequently spoke to him about the payment of eighteen hundred dollars, but he never agreed to admit it, or to dispense with any proof. In this condition the case was submitted to the chancellor who rendered a final decree reversing the former decree, and ordering that the defendants in the original bill be permitted to pay off the debt to Robson and Allen in the notes of the bank ; and that the injunction be dissolved. From which decree Robson and Allen appealed ,to this court.
    
      R. S. Holt, for appellants.
    The defendants, on the trial of the original cause, insisted on a right to pay the judgment against them in the notes of the bank under the provisions of the act of ] 840. See Sheet Acts, p. 22. But as they did not allege that they held or owned the notes of the bank, either when the attachment was served on them, or at the trial of the cause, the chancellor did not esteem them entitled to the benefit of the provisions of that act, which he construed as merely guaranteeing to them the right of set-off. They did not bring themselves within the provisions of that act, in the estimation of the chancellor, because they failed to allege the fact constituting the first essential of a right of set-off, i. e. that the party claiming it was the owner of a counter claim. This construction of the act of 1840, is the only one which can legitimately be given to its language, and has in fact received the authoritative sanction of this court. 2 S. & M. 606, 641.
    The act of 1842, Sheet Acts, 140, was approved but three days before the original decree was signed, and was then unknown alike to the chancellor and to the counsel engaged in the cause. This act, providing that in all cases where a debtor of a bank shall be garnisheed, th'e judgment shall be against him. for the notes of the bank alone, was mainly relied on by the complainants in the bill of review to sustain them in the position that the original decree was erroneous in requiring of them good money. And the chancellor, in his opinion delivered from the bench, placed his reversal of the original decree on this ground alone.
    The chancellor thus construed this statute as operating retrospectively for four purposes.
    1st. To defeat the unquestionable right of the complainants, by the laws existing at the date of their contract with the bank, to attach the debts due to the bank, and demand payment from her debtors in good money.
    2d. To defeat the right of complainants, under the laws in force Avhen they contracted, to subject, in satisfaction of their debt, all the property, real and personal, in possession and in action, which belonged to the bank.
    For if complainants, by attaching the debts due to the bank, can obtain nothing but the bank-notes which they had before they commenced suit, it is flagrantly manifest that that portion of the property of the bank which consists in choses in action, is entirely withdrawn from their reach.
    3d. To defeat the suit of complainants commenced long before its passage, and having for its object the enforcement of the right which they had under the then existing laws to demand good money from the defendants.
    4th. To defeat and annul the judicial transfer of the debt due to the bank, to complainants, which resulted, as a legal consequence, from the levy of the attachment on that debt. That the levy of the attachment operated as a judicial transfer of the debt to the complainants is shown by numerous authorities. 2 S. & M. 675; 6 Mun. 176; 2 Bay’s R. 272.
    This construction of the statute is wholly inadmissible, because it violates the long-established and inflexible rule “ that no statute is to be construed as operating retrospectively, so as to take away a right vested, or defeat a suit commenced before its passage. Dash v. Van Kleeck, 7 Johns. R. 477; 6 Paige Ch. R. 323; Davis v. Minor, 1 How. R. 184.
    The law existing at the date of a contract, constitutes as much a part of it, as does the language used by the parties in giving expression to their meaning. And there is no part of the law of the contract to which the parties so constantly and necessarily have reference as that which determines what portion of the debtor’s property the creditor may subject to the payment of his debt, and the remedies which he may avail himself of in so subjecting it. The right of the creditor to avail himself of all the rights conferred by the law of the contract is a distinct, positive and vested one. Any statute then which aims at withdrawing from the reach of the creditor, either the whole or any part of the property of the debtor, which was not exempted by law at the date of the contract, or at rendering the remedies otherwise less productive and effective than those given by Jaw when the contract was entered into, not only conflicts with the important rule which I have stated, but is obnoxious to the objection that it impairs the obligation of the contract. 4 Litt. R. 47; Ibid. 34; 8 Wheat. R. 1, 75, 76, 84; 1 How. U. S. R. 311; 2 Ibid. 608.
    The construction of the act of 1842, adopted by the chancellor, was, we think, for these reasons, and in view of these authorities, unsound.
    The fraud of the attorney of complainants, relied on in the second place to support the bill of review, is not proved. It is distinctly negatived by the testimony of Clark himself, whose recollection of the transaction was manifestly clear and satisfactory, and is but feebly and doubtingly sustained by the testimony of Burrus. (
    That more confidence is to be placed in the memory of Clark than of Burrus, is evident from the fact that the latter testified under the bias of strong interest; and moreover, in his deposition contradicts the allegation of the bill of review to which he had himself sworn. In the bill of review he says that the alleged agreement entered into between him and Clark was reduced to writing and handed to Clark, who promised to file it. But in his deposition he says the agreement was not reduced to writing, because he confided in the integrity of Clark.
    This important discrepancy shows that his recollection of the transaction is much too fluctuating and clouded to be relied on.
    Another very obvious answer to this ground taken by the bill of review, is, that the facts in relation to which the agreement is alleged to have been made, were wholly immaterial, and their admission could not have influenced the decision of the cause.
    
      William R. Miles, for appellees.
    Should the last decree be affirmed, or reversed? I insist it should be affirmed : Because the act of 1840 compels all banks in this state to receive their own notes in payment of debts due them. Under no circumstances could the bank in this case recover anything else than its own notes. The original bill having been filed to subrogate Robson <fc Allen to the rights of the. lank, it is plain, upon the most familiar principles of law, that they cannot be placed in a better condition than the bank in whose condition they are put by the decree. The person who claims to be subrogated to the rights of another, cannot occupy any ground more favored in law than he to whom those rights at first belonged. 9 Cranch, 500; 1 Johns. Ch. R. 412; 2 Ibid. 554; 4 Randolph’s R. 444, and cases cited.
    Now I most respectfully urge that, inasmuch as Robson & Allen, by the decree of substitution, “stand in the shoes” of the bank, they can ask nothing, but what could have been successfully demanded by the bank. The original decree should have been drawn in such manner as to authorize the defendants to discharge the demand due Robson & Allen, in the notes of the bank; or, compelling them to pay Robson & Allen the amount due them, to be discharged in the notes of the bank, at fifty-six cents to the dollar; that being the amount which is stated in the answer to be their value. Acts of 1842, 140, 141.
    
      The parties in this canse are willing, nay, they are anxious to pay this debt; but they do protest most earnestly against a repeal of the statute by a decree of this court, compelling them to pay it in gold and silver ; when by law .they are entitled to pay it in the notes of the bank, at little more than fifty cents to the dollar. The law clothes the defendants to the “ original bill” with full power to pay their debt due to the bank in the notes of the hank. Who shall undertake to deny them a right guaranteed by the law ? By the act of 1840 the banks are forbid the transfer of their bills receivable, with the view, doubtless, and for the purpose of giving their debtors a chance to pay up their liabilities in the notes of the banks. Can this court, then, decree a transfer, and authorize a collection of the claim thus transferred, in gold and silver, when the owner of the claim could not do it? It is thought not. 2 S. & M. 615.
    It may be insisted that a decree cannot be rendered, scaling the bank notes, without materially injuring the interest of the bank. Be it so. The defendants to the original hill have no concern with that question. It is an affair between the bank and Robson & Allen. All my clients ask is, to have the privilege of paying their debt in the manner authorized by law. Acts of 1842, 140, 141.
    Thus much for the error apparent on the face of the first decree. Aside from which, I insist that the papers in the original cause, the bill of review, and proofs accompanying it, show sufficient grounds for setting the first decree aside. The original bill states that the judgment in favor of the bank against Sharp, Burrus, Yandell and others, was in “full force and unsatisfied.” The answer denies it, and states that about $1900 had been paid. And yet the solicitor took a decree to pay that sum again. This, connected with the fraud alleged in the bill of review, and proved by the deposition of Burrus, would be sufficient to set the decree aside. 3 Bro. Ch. R. 79; 1 Sch. & Lefr. R. 355-375; 1 P. Wms. R. 736, 737 ; 3 Ibid. 111.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The complainants had recovered judgment against the Benton Bank for the sum of §1673, and as the bank was insolvent, after the return of an execution this bill was filed to subject the amount of a judgment which the bank had recovered against Burton Yandell, James R. Burrus, William Yandell, Philip J. Burrus, James Morton, John M. Sharp, and W. C. Burrus, for the sum of §4266, to the payment of the judgment in favor of complainants. There seems to have been no further resistance than that Yandell, Burrus and others insisted that they had a right to make the payment in the notes of the Benton Bank, and accordingly in their answer, after averring that §1800 had been paid, they insist upon the right to pay the notes or their value, they being greatly depreciated; but the chancellor thought otherwise, and made a decree against the respondents for the full amount of complainant’s judgment, to be paid in money. By an amended answer, it is averred that the notes of the Benton Bank were worth only fifty-six cents in the dollar.

The respondents afterwards filed a bill of review to reverse the decree on the ground that they were improperly required to pay Robson &. Allen, in par funds, the full amount of their judgment, claiming the right to pay the amount as though the payment was to be made to the bank. They also object to the decree because no notice was taken of the payment of §1800, in consequence of which omission they say they may be again compelled to pay it. And they also aver that the attorney for complainantsdn the original bill had agreed to admit that the notes of the bank were worth but fifty-six cents in the dollar, and that the payment of §1800 had been made, in consequence of which agreement they omitted to introduce proof on these subjects. The bill of review was sustained, and a decree according to the prayer.

No objection has been taken to the right of complainants in the original bill to pursue this remedy, nor has the right of respondents to file the bill of review been questioned in such a shape as to call for special notice. Without therefore approving or disapproving the one or the other remedy, we will proceed to the merits of the controversy, on which alone do the parties rely.

The complainants commenced this proceeding on the 22d of May, 1840, and on the 28th of February, 1842, the final decree was rendered oil the original bill.

From the foregoing statement it will be seen that the subject of controversy is whether Robson & Allen are entitled to receive from the respondents the amount of their judgment in money, or par funds, or whether they are to be placed in the shoes of the bank, and must receive its notes in payment. The several statutes in relation to the privileges of bank debtors, and the duties of the banks, are relied on to control the decision. By the act of 1840, all banks in' this state are compelled to receive their own notes in payment of their bills receivable and other claims, at their nominal value. By the act of 1842, the right to pay all debts due to the banks in their own notes is extended so as to entitle any one, garnisheed as a bank debtor, and also any one garnisheed by a bank, to pay in that way, and judgment can only be rendered to be discharged in the notes of the bank with which the debt was contracted, or to which it is transferred by the process of garnishment. If the act of 1842 had been in force when this proceeding was commenced, the matter would be plain enough, for although this is not a proceeding by garnishment, yet the analogy is complete. The act fixes the right of the bank debtor, and it cannot be varied by a change of remedy. But the act was passed and took effect on the 25th of February, 1842, but three days before the decree was signed, and although it was in force at the date of the decree, yet the rights of parties must be determined with reference to the law as it stood when the proceeding was commenced and process served. If the state of things at that time was such as to entitle the complainants to relief, nothing which subsequently occurred, without their instrumentality, can deprive them of that right. The decree should be rendered according to the rights of the parties as they stood at the beginning of the suit. To illustrate this, let us suppose the respondents had paid this debt to the Benton Bank after process served, such payment would not have exonerated them from liability to the complainants. In several cases very similar to this, Chancellor Kent held that the rights of the parties must be determined as they stood at the service of process, and could not be changed by rights subsequently acquired or payments subsequently made. Brinkerhoff v. Brown, 4 Johns. Ch. R. 671; Williams v. Brown, Ibid. 682; McDermot v. Strong, Ibid. 687; Spader v. Davis, 5 Johns. Ch. R. 280. We may again refer to the analogy between this proceeding and the remedy by garnishee process at law, in which case the liability of the garnishee is governed with reference to the time the process was served. He must answer what he then owed, and the judgment is rendered accordingly. And here we may remark that the latter remedy would probably have been quite as appropriate in the present instance.

Aside then from the act of 1842, the question is, what were the respective rights of the parties under the act of 1840? The debtors, it is true, had a right to pay the bank in its own issues, or rather it was the duty of the bank to receive its own issues. The only right the debtors had arose out of this duty or obligation imposed on the banks, and not from any stipulations in the contract, or privilege positively granted to debtors by the act. But have the complainants a right to nothing more? If not, then they had no equity; their condition is made worse by compelling them to receive the notes. They started out with a judgment, or rather with a chose in action as the foundation of the judgment. The judgment is to be satisfied by the decree, and the decree by the promissory notes; so that after having pursued this round of litigation, they arrive at the end of it with their debt converted from one note to many. The act of 1840 is not, as we conceive, to be so construed as to produce such a result. The object of the legislature in passing the act, was doubtless to prevent the banks from coercing payment in gold and silver, and to compel them to receive as money, that which they had put into circulation as such, which had become greatly depreciated. The language of the act seems to look to the banks as the subject of the legislation; they were required to receive their own notes in payment.- The debtor, to be sure, received a corresponding or consequential benefit, but this benefit to him, was not the motive which operated on the legislature. The obligation to receive these notes is not extended to other persons, and the act does not call for a construction so liberal and extended as to embrace any payments except such as were to be made to the banks. When it is attempted to be applied to the complainants, it is in derogation of common right, and must be strictly construed. The legislature saw that the act would not work with uniformity as to bank debtors, and provided a remedy by the act of 1842. By the act of 1840 the defendant had the power to defeat an assignment by plea in abatement, the effect of which was that the banks could not transfer the collection of their debts to other persons; they were bound to make their own collections, and that too in their own notes. But a transfer by process of law was unprovided for until 1842. That the legislature made this provision in 1842, is evidence that it was by that body supposed that no provision had been made for transfers by operation of law. This bill is not founded on the doctrine of substitution. The complainants do not ask to be substituted to the rights of the bank, but they ask that a sum of money due the bank may be arrested from the process in favor of the bank, and applied to the payment of their debt, on that principle of equity which will induce a court of equity to lend its aid in enforcing judgments at law, by subjecting that which a court of law cannot reach, after a proper effort to reach it under process has proved ineffectual. A judgment creditor is entitled in this way to reach a debt due by judgment to his debtor, because he cannot so reach it at law. Egberts v. Pemberton, 7 Johns. Ch. R. 208. If courts of equity will thus interfere in order that justice may be done, they will not permit the remedy to work to the prejudice of the complainant, unless compelled to do so by some stubborn rule of law. These debtors had a right to pay the bank in its own notes, but they have now no right to pay the debt to the bank, even in that way : the debt has been transferred. It has fallen into the hands of parties who are under no obligation to receive anything but gold and silver, and if it can be paid in anything else, it must be in consequence of a right resulting to the debtors from the nature of the contract. The law does not say that all contracts made with banks shall be so paid. To entitle debtors to this right it must be a claim due the bank when the party offers to pay. This is not now a debt due the bank, and to such we do not think the statute applies. If an offer to pay had been made, or even a readiness to do so by possession of the notes, before the transfer, the question would be different. Let us suppose that the note of these debtors had been transferred before suit brought, and to an action in the name of the assignee they failed to plead the transfer in abatement, by which they waived any objection to the transfer. The effect would be to make the transfer valid; could they afterwards claim to pay the judgment in the notes of the bank? We have just decided that they could not, and the principle of the two cases is very much the same. The only difference is that in one case the transfer is valid because it was not objected to, and an assent thereby implied, and in the other case it is valid by law. In either case it is not a claim due the bank, and is not within the statute.

But a question then arises as to the amount the debtors are bound to pay. They have been called into a court of equity, and have a right to claim its protection against a payment which may be beyond the amount which would have discharged their debt when they were enjoined from paying it. They cannot throw the risk of depreciation since that time on the complainants, and pay in a currency which may have become utterly worthless, but as they could have paid in such currency at the time the complainants right attached, the value of the notes at that time must constitute the measure of liability. That is the amount which equity may claim to appropriate. If the notes were worth fifty-six cents in the dollar, then they must pay the complainants fifty-six cents for every dollar they owed the bank, or at that rate on a sufficient amount to satisfy the complainants’ demand, if they owe enough. In this way they lose nothing by the transfer. When they make this payment one dollar of the debt to the bank will be discharged by the fifty-six cents. The decrees were then both wrong. They must be reversed, and the cause remanded for further proceedings.  