
    William Coleman against Alexander Walcott.
    June, 1809.
    A sum of mo- and C. jointly, try virtue of a covenant en-trreen'^them on the one part, and A. on the other; ⅞ interest ⅛ the covenant wbich.L with fraud* C°, and knowing that Ji. was totally insolvent, applied to the latter, and Fro°mhimare-lease of the covenant, and then pleaded an action* o°n the covenant, •whereupon that action drawn: Held" that this was an injury to C. or which «edtoreeover at law against
    To render tionabie ^ in such case, it is not necessary that there heen*da judg* ment on the release pleaded m bar.
    WRIT of error.
    This was an action on the case.
    The declaration stated, that on the 4th of September, 1795, the plaintiff and John Taylor entered into a contract in writing, with the defendant, of that date, which was (]ujy executed under hand and seal, and had become J lost by time and some unforeseen inevitable casualty, the counterpart whereof was then in the hands of the de-feudant, and of the tenor set forth. From the recited covenant it appeared, that the plaintiff and Taylor, on the one part, and the defendant, on the other, cove-nantec| that, whereas the defendant had discovered ’ that there was a tract of land in Virginia, within the . Lomsa-Forks of the river Sandy, supposed to be unlo-cated, and the property of that state, and that the plain-anc] Taylor were desirous of obtaining 200,000 acres . thereof, and of the assistance of the defendant in procuring a title to the same; wherefore it was agreed, tbat on or before the 6th of said September, the plaintiff . * and Taylor would advance to the defendant six thousand dollars, being three cents per acre for each of 200,000 aCres of land; that on or before the first of January, 1796, they would pay him one cent per acre more ; that on or before the first of January, 1797, they would pay bim three cents per acre more ; and that on or before the first of January, 1798, they would pay him three cents Per acre n!0rc) with the lawful interest after the first of january 1797 : And the defendant, on his mart, covenanted, m consideration ol the premises, that he would immediately proceed to Richmond, in Virginia, and make aj} necessary inquiries relating to said tract of land, and ' if it should appear that the land was not located or purchased, that he would proceed to locate and survey for the plaintiff and Taylor 200,000 acres, part of said tract, and as soon as might be, procure, at his own expense, a grant or patent from the State of Virginia, to the plaintiff and Taylor, or such person as they should appoint; and in case the defendant should find part of the above tract located, he agreed to interest the plaintiff and Taylor in a certain proportion of the residue; but, if the defendant should find that the whole of said tract had been located, then he covenanted, so soon as the same conveniently could be done, to return to the plaintiff and Taylor the whole of the money advanced by them, without expense or deduction; and it was agreed that no further sums should afterwards be paid to him. It was further agreed, that if the defendant should find the said tract wholly or in part unlo* cated, and should proceed to survey and locate the same, and the plaintiff and Taylor should neglect or refuse to advance one cent per acre by the first day of January, '1796, then the defendant should be at full liberty, at any time within a month after said first of January, to repay to the plaintiff and Taylor the moneys advanced to him with interest, and be thenceforth exonerated from his covenant.
    The declaration then stated, that no copartnership had ever subsisted between the plaintiff and Taylor, and that they had agreed to hold each for himself an equal part of the land, to be sold for the separate benefit of each, and not for their joint advantage: that the plaintiff and Taylor paid to the defendant, on the 6th of September, 1795, the six thousand dollars in the agreement stipulated, three thousand dollars of which was the proper money of the plaintiff : that on the 12th of November, 1795, Taylor, by a writing under his hand, well executed, relinquished, assigned and made over to Eliel Qilbert all his right, title, interest and claim in and to said covenant, meaning thereby to assign one moiety thereof, and at the same time, the plaintiff assigned and made over to Gilbert, by a writing under his hand) all his right* claim and interest in the covenant, except as to one third part thereof which the plaintiff retained to and for his own use; by virtue of which assignments, (which were entered on the original covenant,) Taylor devested himself of all. his right and title in the covenant, of all which the defendant had full knowledge, on the -first of January, 1796⅛ and since has settled with Gilbert, and paid him to his full satisfaction for the two third parts of said contract assigned, and has been discharged therefrom, by a receipt in writing, executed by Gilbert, to the defendant, in full for all the right and title which Gilbert had in and to the contract.
    The plaintiff’ further stated, that on the 2d of January, 1796, he paid the defendant'five hundred dollars on account of his third part of the covenant retained ; and, on the 8th of the April succeeding, he paid to the defendant four hundred and fifty-eight dollars and fifty cents more, for the same purpose.
    It was then averred, that the defendant never did procure any title, grant, or patent to all or any part of the lands mentioned in the covenant, they, since the date of the covenant, never having- been the property of the State of Virginia : that in consequence of this failure of the defendant, he became liable to repay to the plaintiff the moneys advanced by him as aforesaid, amounting-to 2,958 dollars and 50 cents: that on the 1st of May, 1796, and at divers times since, the plaintiff made demand of the money from the defendant, but he had ever neglected and refused to make payment.
    It was further averred, that on the 15th of February, 1801, the defendant, knowing the premises, and conscious of the plaintiff’s rights, applied to the plaintiff in JVew-York, and requested him to receive land (not comprised within said covenant) of the defendant in satisfaction for the money paid upon the plaintiff's one third part of the contract aforesaid; with which the plaintiff refused to comply : that on the 14th of May, 1801, “ the said John Taylor, being then a bankrupt, and at all time since totally insolvent, and unable to pay his debts, and who owned no part of the recited contract,” “ which the defendant, on said 14th of May, 1801, well knew;” the premises notwithstanding, the defendant, for the purpose of defrauding the plaintiff of the sums advanced by him as aforesaid, applied to Taylor, and for the fraudulent purpose aforesaid, procured a writing under his hand, well executed, releasing and discharging the defendant from his covenant; which release he has since pleaded in bar of an action commenced in the name of Coleman and Taylor against him, on the covenant of the original contract for the recovery of the aforesaid sum of 2,958 dollars and 50 cents ; in consequence of which, the plaintiffs withdrew their action, and judgment was obtained by the defendant against them.
    The cause was tried to the jury on the general plea of not guilty, and a verdict wras returned against the defendant, finding him guilty, and for the plaintiff to recover 5,222 dollars damages.
    There ivas a motion in arrest, consisting of two objections ; one of fact, which was found not to be true ; the other of law, that the plaintiff’s declaration was insufficient.
    The court adjudged the declaration insufficient; and rendered judgment for the defendant.
    
      Hosmer and Dwight, for the. plaintiff.
    The judgment of the superior court in favour of the defendant, proceeded exclusively on the ground that the plaintiff’s declaration was insufficient. After having concisely stated the facts, we shall endeavour to show that they authorize the suit at law, which the plaintiff has instituted. This general observation comprises two propositions : that the declaration of the plaintiff contains a sufficient cause of action; and that a court of law is competent to administer the proper redress.
    It appears, that Coleman and Taylor entered into an indenture of covenant with A. Wolcott, in which it wa,s stipulated, that they should make him certain payments, and that he should procure for them a title to a quantity of land in Virginia. They paid him six thousand dollars, one half of which was the property of Coleman. It is fofind, that there was no copartnership between Coleman and Taylor; and within a few weeks after the covenant was entered into, that Taylor assigned all his right in it to Eliel Gilbert. Coleman, likewise, assigned a part of his right in it, retaining one third only for himself ; after which, he paid to Wolcott nearly a thousand dollars on this reservation. Between Gilbert and Coleman there was no connection. Wolcott, who had totally failed in the performance of his engagement, made a settlement with Gilbert for his two third parts of the money paid on the covenant, and took his discharge. From this moment it is indisputably apparent, that Gilbert had no interest in the covenant; that Taylor had no interest in it, and that Coleman was really the only person who had any equitable claim to the one third of the money still remaining due. In February, 1801, Wolcott, acquainted with all the preceding facts, and fully conscious of the rights of Coleman, applied to him, and requested him to receive certain lands, in satisfaction for the money paid on his third part of the contract. This was five or six years after he, by the infraction of his covenant, was under obligation to make restitution of the money. It will occur to the court, that by this proceeding, Wolcott explicitly recognised the right of Coleman; and that the sum remaining unpaid was his exclusively. In reply to Wolcott’s proposition, Coleman refused to receive lands which he was under no obligation to receive, and merely insisted on the repayment of money which he had injuriously been deprived of, for a number of years. After Wolcott had found that his wild lands would not pay a money debt, he, on the 14th of May, three months only posterior to his recognition of Coleman’s claim, applied to Taylor, to procure a release of it. At this time, Taylor was insolvent, and ’was known to be so by Wolcott. He likewise knew, as has been mentioned, that Taylor had no interest in the covenant, except what was merely nominal. For the purpose of defrauding Coleman of the sums by him advanced, this application to Taylor, it is found, was made; and in execution of this fraudulent purpose, he procured a release from Taylor, discharging him from his covenant. Whether the release thus obtained was procured for a valuable consideration, or was gratuitous, does not appear; nor is it of the least moment that it should. After this, Coleman instituted a suit upon the covenant in the name of Taylor and himself, and Wolcott pleaded the release in bar. The action was withdrawn on the belief that the plea must be available, and that a replication of fier fraudem would be nugatory, for this, among other reasons, that Taylor could not, in this manner, invalidate his own act. The plaintiff has now brought an action on the case, founded on the preceding facts, and demands damages, which are not merely presumptive, but inevitable, as the release is an insurmountable impediment to any recovery upon the covenant. The verdict of the jury was for the plaintiff; but it was considered by the court, that the facts averred and found did not authorize a judgment in his favour.
    1. Our first proposition is, that the plaintiff had a right to the one third part of the money paid to Wolcott, which a court of law will recognise. We are fully aware that no part of this assertion will be admitted. It has been insisted, that the plaintiff, had no right to the money in equity, or at law; and particularly on this principle, that the release of one of two joint obligees, enured not only totally to extinguish the cause of action on the obligation, but utterly to annihilate it, in prevention of all collateral inquiries. This will receive due attention, in the course of argument. We will first . ° ■ inquire whether the plaintiff had not an equitable right to the one third part of the money paid on the covenant. If by • equity be meant natural justice, the question is determined, so soon as the terms of it are understood. For what can be more obviously just, than that the plaintiff should have restitution made him of his own money ? It would be manifestly unjust that Taylor, who had transferred all his right to Gilbert, should receive any part of it. The claim of Gilbert is, if possible, more unfounded. The two thirds assigned to him had been paid, and he had released all demands. It results conclusively, that the plaintiff, and the plaintiff alone, has an equitable claim for the sum remaining due. Of this opinion was the defendant, when he made application to him, requesting him to receive lands in payment.
    But the expression equitable right, if it is considered as referring to the principles adopted in chancery, is equally predicable of the plaintiff’s claim. It is past all question, that if, after an obligation has been assigned, which alone is transferable in equity, the promissor, with notice of this fact, takes a release from the insolvent obligee, he may in chancery be compelled to pay the money to the assignee. 1 Ves. 332. 391. 2 Ves. 6. 1 Pow. on Coni. 317. 1 Ld. Raym. 683. 2 Vern. 595. Baldwin v. Billingsley, 2 Vern. 540. 3 Chan, Refi. 41. Chan. Cas. 232. 2 P. W?ns. 608. 1 Root, 349. Russel v. Cornwell, 2 Root, 122. Master v. Miller, 4 Term Refi. 341. This principle has been long established in Westminster-Hall, and was the unquestionable rule here, until the courts of law exercised jurisdiction in cases of this description. The foundation of the principle was this, that the assignee of the bond was alone beneficially interested in it; or, in other words, he was the sole equitable proprietor. Whether the equitable owner wa$ originally interested in the debt, or became interested at a time posterior, was deemed of no consequence. “It is not material” (says Justice Ashhurst, in Winch v. Keeleii, v 1 . 1 Term. Reft. 623.) “at what time he became a trustee; for whether he became such by the assignment, or was so originally, it is sufficient to say that he is a trustee now.” It may, likewise, be observed, that it matters not by what act, or in what manner, a person has become the equitable owner of a bond. If the nominal' party to a contract has really no interest in it, he is merely a trustee for the person beneficially interested. This position, that the plaintiff was the equitable owner of the money in the defendant’s hands, is too obviously clear to require further argument.
    The important question remains, whether the right of the plaintiff is merely equitable, and to be vindicated in a court of chancery only, or whether it is a right which a court of law may recognise, and for tho privation of which it may administer redress. It only remains to show (what is unquestionably clear) that the courts of law in this state for many years, have administered justice to the assignee of a note, or the real owner, in cases of the description referred to. But, it may not be entirely unsatisfactory to discuss the question on broader ground, and unfold the peculiar propriety of exercising legal jurisdiction in the matter referred to.
    We begin with stating a fact, that at an early period of the English history, the principles of law were few, and the modes of proceeding simple. The stat. ofWe&tm. 2. the parent of actions on the case, gave power to the clerks in chancery, when there was no former writ, to make one adapted to the exigencies of the complainant’s case. But notwithstanding this, the court of chancery, partly from usurpation, and partly from a necessity imposed by the illiberality of the law courts, took jurisdiction of suits, and granted relief on principles of natural justice. Without particularly tracing the progress of its jurisdiction, suffice it to observe, that, at length, from the smallest beginnings, it extended its cognisance to numerous cases, and administered justice most extensively. When the line of its jurisdiction became accurately defined, it granted relief principally in the following instances: 1. It interposed to give a remedy, which the courts of common law were unable to do, and on principles of established law; 2. It restrained a party from availing himself of an advantage, which he had obtained by fraud, accident, or otherwise, in courts of ordinary jurisdiction, or out of them; 3. It administered right on princijiles of natural and universal justice, when the ordinary courts had not, as yet, adopted any rule on the subject. From the latter principle, it is obviously apparent, that the courts of chancery would originate many new rules; and this has been the fact. But this is not all. Having once adopted a principle, it became a precedent, adhered to as tenaciously as the decisions of the other courts. 3 Bl. Com. 432. Mitford, 4. It is unquestionably true, after the stat. of 1Vestm. 2. had authorized the clerks in chancery to frame such writs as the public exigency might require, that “ with a little accuracy ⅛ the clerks, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the writ, this provision might have effectually answered all the purposes of a court of equity; except that of obtaining a discovery by the oath of the defendant.” 3 Bl. Com. 51. This object has in part been obtained, and is constantly verging towards the desired point, by the recognition of the established rules of the court of chancery, in courts of common law. Why should they not thus be adopted, and naturalized in the legal code, when the objection to them is reduced to matter of mere form ? “ The rules of both courts should be exactly the same: both ought to adopt \the best, or must cease to be courts of justice.” “When the subject matter is such as requires to be determined secundum eguum et bonum, as generally upon actions on the case, tlTe judgments of the courts of law are guided J ° . by the most liberal equity.” 3 Bl. Com. 435. The absurdity of different rules in courts of law and chancery is extremely glaring. “ That one coyirt should have a jurisdiction according to strict law, and another according to equity ; that the former should be obliged, with eyes open, to pronounce an unjust sentence, in conformity to an old rule, leaving parties to procure relief by an application to the latter; that, in a word, the common law tribunal should be empowered to view the lawsuit only on one side, and the court of equity upon a different one; such a regulation appears in itself no less absurd and ridiculous, than its consequences would be hurtful, by producing a waste of time, and an accumulation of expenses: not to mention the uncertainty and fluctuation of conduct arising from the inaccurate and variable boundaries by which equity and strict law must ever be distinguished.” Millar’s Historical Vicia of tj^-English Government^ ft. 4 33.
    . Of late years, the liberality with which courts of common law have noticed and adopted the principles of decision established in the courts of equity, has been of eminent use, by amplifying their jurisdiction, and rendering the ordinary courts more nearly adequate to the public exigencies. This is the natural progression of things. “ The distinction between strict law and equity is never, in any country, a permanent distinction. It varies according to the state of property, the improvement of arts, the experience of judges, tiro refinement of a people.” Mitf. 428. “ Lav/ and equity are in continual progression; and the former is constantly gaining ground upon the latter. A great part of what is now strict law was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.” Mitf. 431. At the same time we would not be understood to assert that every rule practised on in chancery, should be naturalized in the law courts. Undoubtedly there is an exception in some cases, in which the relief administered is not absolute, but conditional, and where the conditional relief is essential to the administration of justice. 7 Term Refi. 667.
    The result of the observations just submitted is, that courts of chancery adhere to rules adopted by them, as tenaciously as the courts of law to theirs; and that much of what was chancery law formerly, is now the established law of the ordinary courts. In Westminster-Hall, it is well known that the law on the subject of assigned choses in action (though suits are not yet sustained in the ordinary courts upon them in favour of the as-signee) has greatly altered, and that this alteration has been adopted from the rules established in the courts of chancery. In the case of Master et al. v. Miller, 4 Term Refi. 340. a masterly view of this subject is taken by Justice Butter. The ancient doctrine was, that for avoiding maintenance, a chose in action could not be assigned. The good sense of this rule is not only questionable, but is in the teeth of all experience. Courts of law soon altered their language on the subject very much. In The King v. Aickles, 12 Mod. 554. (A. D. 1701,) it was said, “ that though the thing in its nature was not assignable, yet it was enough to bind the assignor, to suffer the assignee to enjoy it.” This was the first step towards the recognition of the assignee’s right by courts of law. The assignment of a chose in action Tras always been held a good consideration for a promise. 4 Term Refi. 341. In Bottomley v. Brook, Rudge y. Birch, cited 1 Term Refi. 621. and 4 Term Refi. 341. and in Winch v. Kceley, 1 Term Refi. 619. the right of the cestui que trust and assignee has been acknowledged, and acted upon, and relief granted in the ordinary courts. In Fenner v. Meares, 2 Bla. Refi. 1272. the suit on a féspondentia bond assigned was sustáihéd in favour of the assignee. “ But still, (says Justice Butter,) it must be admitted, that though the courts of law have gone ■ ¾ the length of taking notice of assignments of choses in action, and of acting upon them, yet in many cases they have adhered to the sound objection, that the action shall be brought in the name of the assignor, and not in the name of the assignee. 1 see no use or convenience in preserving that shadow, when the substance is gone.” 4 Term Reft. 341.
    In this state, the decisions of our courts, until about 14 years since, were similar to those of Westminster Hall. The rights of the assignee, were vindicated in chancery. In July, 1794, the case of Russel v. Cornwell (2, Root, 122.) was heard in Middlesex county. It was á petition in chancery brought by the assignee of á promissory note against the promissor, who, with notice of the assignment, had taken a release from the assignor. The court of common pleas had decreed for the petitioner ; this had been reversed, and the cause entered in the superior court. It was insisted, that there was remedy at law. The court observed, that “ on hearing the arguments in this case, they were inclined to think, that the petitioner might have an action at law for the fraud to recover his damages; but as this case was entered in this court upon reversal, and the precedents had ever teen to grant relief in chancery in such cases, they thought it would not do to turn the petitioner round, and send him to law upon an uncertainty, as there had been no decisions of the kind. They, therefore, sustained the petition.”
    It is a deduction well warranted from this case, that the court had brought their minds to this point, that a court of law was competent to administer redress in such-cases. This principle was soon after recognised, and has since been followed up by various determinations; so that the question, if there is any stability in jurispru-deuce, may be considered at rest, and the repeated decision of the point, as establishing a land-mark for time to.come. (1 Root., 561.)
    In the case of Booth v. Warner, (anno 1797, superior court, Litchfield, county,) the point was directly and explicitly decided. It was a petition in chancery. Booth, the petitioner, was the assignee of a bond given to Van Wagoner by the defendant, jlfter notice of the assignment, and of the bankruptcy of Van Wagoner, the defendant obtained from him a release of the obligation. The object of the petition was to enforce a payment of the money, the release notwithstanding; but it was dismissed on this sole ground, that there was adequate remedy at law. From that determination to the present time, with the exception of the case in hearing, the decisions have been frequent and uniform. It has been a thing of course to sustain actions at law for the redress of similar injuries.
    How much preferable is this to the awkward shifts and refinements recurred 4o in Westminster Hall, to prevent the perpetration of injustice. If the obligor of a bond, after notice of assignment, take a release from the obligee, and plead it to the action brought in the obligee’s name, the court will set aside the plea ; (1 Bos. Pull. 447.) will order the release given up; (Doug. 391.) will commit fora contempt. (Salk. 260 7 Term Rep. 669.) This is all the court can do ; so that the defendant, if he persist in his plea, is victorious over the courts. The courts, in these cases, recognise the right of the assignee, and endeavour to' advance a remedy. Why should they not adopt one adequate to the object, and not expose themselves to the disgrace of an unsuccessful competition, and justice to the peril of a defeat. We-are aware, that in a neighbouring state, the rights of an assignee have been acknowledged in a court of law, and a release, after notice of the assignment, has been adjudged a_ nullity. Warded v. Eden, 
      1 Johns. 531. Littlefield, v. Story, 3 Johns. 425. The objections to this proceeding are both obvious and cogent. If the assignee is the admitted party to the contract, or the acknowledged firofirietor, why not sue in his name? If he is not, why regard his equitable property, in opposition to the legal rights of the assignor ? Whence comes it, that in a court of law, the equitable ric^vt controls the legal ? IIow incongruous, how inconsistent, that the assignee should voluntarily sue in the name of another, by this act asserting his legal and unquestionable right, and in the progress of the same suit, be permitted to deny it! How improper, that the records of the court should, in one sentence, have been evidence of the plaintiff’s right; in the next, despoil him of his right; and in the last, by rendering judgment in his favour, establish his right as of incontrollable verity ! This absurdity is avoided by adopting the rule of practice, for which we contend, permitting the as-signee, who has right, to sue in his own ñamé. The rule that he who is plaintiff in a suit has the right, is fundamental, and cannot be departed from, without producing the most palpable absurdity. And where a court has gone the length of recognising the right, why not take the second step, and assert the remedy in the usual manner?
    We are authorized, then, to affirm it to have been the law of this state, settled for a number of years, “ that the assignee of a promissory note may maintain an action of fraud against the pro mis sor, for accepting a discharge from the promissee, after notice of the assignment,” and that it has been acted on over and over again. If there be any twvelty on this subject, it is in this new endeavour, to bring back to chancery cogni-sance that class of cases, which has been emancipated from its jurisdiction, and naturalized in the ordinary courts.
    The superior court, as a legal tribunal, has recently determined a case, in point of essential principle, very similar to the principal case now before this court. We allude to the action of Scorer against Bulkley et al To specify all the facts must be unnecessary. Suffice it to observe, that the suit was founded in a fraud practised on the plaintiff, by the defendant’s attaining a release from one Bontecou., on false representations. The plaintiff’s title. defeated by the deed, (the only subject on which an inquiry need be made,) was this : he had giyen a deed of land to Bontecou in fee-simple, relying on a parol agreement that the grantee would release the land,, on payment of the sum for which it was granted. His reliance was on Bontecou's honour, and his only mode of enforcing his claim was by a suit in chancery, applying to Bontecou's conscience for the truth. The fact of the agreement by Bontecou was denied, and an objection was made to the admission of parol evidence to substantiate it. The court, however, admitted it, and, in charging the jury, said, “that if the defendants obtained the deed from Bontecou by fraud, they were liable in this action, though the agreement between Bontecou and the plaintiff to recover the land vested in parol, and depended on the honour of Bontecou.” The sufireme court of errors concurred in opinion, and affirmed the judgment in this case. 2 Day, 531.
    Let the cases be compared. They were actions of fraud; in both of them, the plaintiffs were defeated by the deceit of the defendant; in both actions, the plaintiffs had equitable rights, and for the privation of these, suits at law are brought. Where, then, is the difference ? If there be any, it is in favour of Coleman. His right, as against Wolcott, was legal as well as equitable j and Taylor, a trustee merely, was induced by Wolcott to violate his trust, and execute a release.
    On the whole, we conclude on this point, that the plaintiff has a right to the money in the defendant’s hands, which a court of law will recognise and enforce.
    
      Our next proposition is, that the plaintiff sustained a damage in consequence of the fraud practised by the defendant. This is a necessary ingredient in this suit. It is not denied that damage must exist as well as fraud.
    But we insist, that in this case, there has been “ damage” to the plaintiff. If it were necessary to show actual damage, this most abundantly appears The pleading the release and frustrating the plaintiff’s suit; burdening him with expense; taking judgment against him for the cost; and delaying his demand, all prove, actual damage.
    
    The objection that no damage had been sustained, Would be somewhat singular after -verdict. Whether damage, or not, is a fact. This the jury have found, and their finding is conclusive, unless it necessarily appears from the declaration that no damage could have existed. Now, this never can appear, unless it is a legal prerequisite, that some fact, such as judgment on the plea of release against the plaintiff, should appear, before damage can be presumed. It is universally true, that privation of rights infers, by necessary legal consequence, that damages have intervened. In trespass, as-sumpsit, case, or, indeed, actions of every description, the observation will hold true. If Taylor were solvent, perhaps no action would lie against Wolcott; not because there ivas no damages in fact sustained by the fraud, but because none could, by possibility, arise. But Taylor being utterly insolvent, his release was necessarily accompanied with damage. i\nd thus the decisions, have ever been. If the obligee, whose land has been asr signed, is a bankrupt, he need not be sued ; the obligor who accepts the discharge is responsible immediately.
    It will, perhaps, be objected, that the plaintiff in the same suit, might have avoided the plea, by replying per fraudem; and hence, that there was no damage, except what the plaintiff has voluntarily sustained. If this were true, it would not follow as a necessary consequence, that no1 damage can be presumed. For what could he anticipate ? If there were a recovery, his coplaintiff would discharge the judgment.
    But íiew can per fraudem be replied by a party to the fraud? This objection to that mode of proceeding is insuperable. There was no> fraud in fact, of which Taylor could complain; and Coleman, having joined with, him in the suit, could be in no better condition than his coplaintiff. Smith v. Bouchier, 2 Stra. 993. Philips v. Biron, 1 Stra. 509.
    Besides, the whole argument of the defendant proceeds on this ground, that the plaintiff was bound to sue on the covenant, an inference manifestly unfounded. If not bound to sue on the covenant, his condition is now precisely what it should be, to enable him to bring this action.
    It is said, that if A. forges a. note in the name of B. no action lies until actual damage has been suffered.^Why so ? For this obvious reason, that the law presumes no damage from a. forged writing,' because it is not the act of the nominal party. But it does not follow, that no damage is presumed from a legal act, which puts an insurmountable barrier in the way of recovering.
    It will be further objected, that the action is misconceived ; that it should have been indebitatus assumpsit, or an action on the covenant in the name of Coleman only. As to the first, it requires no answer. If indebi-tatus assumpsit lies, (which is by no means admitted,) it is not inconsistent with the assertion, that an action for fraud may likewise be sustained: As to the other part of the objection, is it true, that on a joint covenant, an action may be supported in the name of one of the covenantees solely? No. Esp. Dig. 247. 304. Where there is a joint right, there must be a joint action. “ If the interest and cause of action be joint, the action must be brought by all the covenantees.” “ For when there are several covenantees, and one of them only brings the action, without averring in the declaration, that the others are dead, the defendant may either take advantage of it on the trial, as a variance upon the plea of non est factum, or pray oyer of the deed, and demur generally.” Eccleston v. Cli/isham, 1 Saund. 154.
    But an objection on which the defendant may place some reliance remains yet to be discussed. It will be said, that the release of Taylor to the defendant not only extinguished the covenant, but the whole cause of action upon it, so that no demand, either at lam, or in equity, remained against the defendant. And truly, it is a most extraordinary objection ! If it be true, it irresistibly follows, that the release of the promissefe of a note, after assignment, must cut off all possible redress in behalf of the assignee against the promissor.
    What is the proof of this extraordinary position t Why the same as that on which we rely as the gist of our action ; that the covenant is extinguished. If there are two joint executors, joint obligees, or joint covenantees, the release of one discharges the obligation. 18 Fin. Abr. 347, 348, 349, 350, 351. 353. But the question remains, whether it releases and annihilates the cause of action so completely, as to bar all collateral rights ? Does it extinguish it completely, and blot the memory of it from legal contemplation and existence ? Such an idea is repugnant to reason, and unsupported by autho-. rity.
    
      'Daggett and Gould, for the defendant,
    contended, first, that the remedy, if any, was not at law; and, secondly, that there was no remedy.
    1. The plaintiff’s right, if any, against Wolcott, is but an equity. The gravamen of this application is, that the plaintiff’s legal right has been destroyed. How absurd is it to make such an application to a court of lam ? Shall a party be heard in a court of law, when his only complaint is, that the defendant has availed himself of a good defence at law? It may have been very Unrighteous in the defendant to avail himself of ° such defence; but when a court of law pronounces it a good defence, will the same court subject him for making it? It may be very unrighteous for a party to set up infancy, bankruptcy, or the statute of limitations, as a defence against a just demand ; but could a court of law give a remedy, against him for doing so ?
    The great argument in support of a legal jurisdiction in this case, is derived from a supposed analogy to the case of a discharge taken by the maker of a note from the payee, after notice of an assignment In answer to this, it is to be observed, in the first place, that a court of law in England would not sustain such an action for a moment. As the assignee’s interest is an equity only, he would be obliged to seek his remedy in chancery. Here, indeed, it would be otherwise, according to certain decisions; but let it be remembered, that those decisions form an anomaly in our system of jurisprudence. We have adopted, from the English system, separate jurisdictions in law and equity; and have also adopted the same general distinction between them. If we have confounded jurisdictions in one class of cases, it is rather a subject of regret, and a reason for future caution, than a ground for extending the confusion. Every innovation in jurisprudence is to be construed strictly, and watched with a jealous eye. It is much safest to stand super antiguas uias. In the next place, the analogy does not hold. There Is no unity of interest between the payee and assignee, as there is between joint covenant-ees. The right of one is not that of the other.
    But the case of Storer v. Bulkley is cited as an authority in point. That was for the violation of an equitable right. It is to be observed, however, that the agreement between Storer and Bonlecou was as good at law as in equity. The statute of frauds and perjuries may be pleaded in both. Besides, in that case, there was other special damage, such as bringing the plaintiff’s creditors upon him, in pursuance of a conspiracy to ruin him in his business, &c.
    The doctrine supposed to be established in Winch v. Keeley, 1 Term Refl. 619. that a court of law will take notice of a trust, so as to protect the interest of the cestuy que trust, is relied upon in support of this action. That was indebitatus assumfisit; the plea was, that the plaintiff became bankrupt, and his effects were assigned under the commission ; the replication alleged an assignment of the debt to a third person before the bankruptcy; and, on demurrer, the replication was held sufficient. The answer to this is, that the assignee’s interest was recognised, not for the purpose of enforcing it against the debtor, but to determine whether the debt passed under the commission by the statute of 1 Jac. I. c. 15. The court were of opinion that this was not such a*debt as passed under the commission; that the legal title was still in the plaintiff; and that he, therefore, was entitled to maintain the action. From the position, that he who has the legal title may maintain an action, we do not see how it is to be inferred, that he whose legal title is gone, can maintain one.
    The remarks of Justice Buller, in Master y. Miller, A Term Re/i. 340, 341. are extrajudicial, and opposed to the opinions of the other judges.
    
      Bottomley y. Brooke was cited
    in Winch y. Keeley, and is relied upon by the plaintiff in this case. To debt on bond, the defendant pleaded it was given in trust for E. Chancellor, who was indebted to the defendant in a greater sum. This plea being demurred to, the court intimated an opinion in favour of the defendant; and in Rudge y. Birch, soon afterwards, on tfye same pleadings, thd defendant had judgment. This was only extending the principle of Dutton y. Poole, 1 Vent. 318. 332. Allen v. Catlin, cited 2 Day, 560, 561. and flis/io/i y. Drake, Kirby, 378. But Catlin v. Allen was denied in Sanford v. Sanford, 2 Day, 559. And the -general doctrine, that courts of law can take notice of trusts has been frequently denied m England. Doe, ex dem. Hod-son, v. Staple, 2 Term Rep. 695, 696. Bauerman v. Ra-denius, 7 Term Rep. 663. Goodtitle, ex dem. Jones, v. Jones, 7 Term Rep. 50. Alpass v. Watkins, 8 Term Rep. 516. Further, the defendants having made advances to the eestuy que trust, in Btotomley v. Brooke, may be considered in the nature of an accord with the authorized agent of the plaintiff. But suppose the defendant had pleaded a discharge from the plaintiff; could the eestuy que trust sue the defendant at law for the fraud i That would compare with the principal case ; but nothing like it is to be found in the English books.
    The plaintiff certainly does not stand on better ground than if there had been a judgment in the former suit giving effect to the release. Suppose such judgment to have been rendered ; could the plaintiff deprive the defendant of the fruits of it, in another action ? Bost-wick v. Lewis, 2 Day, 447.
    2. The plaintiff has no remedy: first, because the defendant has done no wrong, no fraud; secondly, if fraud, no damage; thirdly, because a recovery would be no bar to an action on the covenant.
    First, there was no wrong in law or equity. Taylor had a perfect right to give, and Wolcott to accept, the dis? charge. We will here premise, that Taylor’s having assigned makes no difference as to these parties. Suppose, then, Taylor had not assigned. He and Coleman were joint covenantees. As1 to their interest in the covenant, they were, ex natura rei, partners. If they were not, a release by one would not bar the other. And it is of no consequence, that the declaration alleges that no copartnership ever subsisted between them. The facts are given. Whether those facts show a copartnership,or not, is a question of law; and the legal inference is opposed to the averment. Nor is the allegation that they had agreed to hold each an equal part of the land, for the separate benefit of each, of more avail. The, question is, what is the covenant ? If they were jointly interested in the covenant, they are partners quoad hoc, notwithstanding any collateral agreement.
    Suppose A. and B. are partners; B. sells the stock to J. S. with intent to retain the money, J. S. knowing it. What remedy has A. against J. S. ? His remedy clearly would be against B. only.
    Where the executor released a debt devised to another person, it was holden, on a bill brought against the execu-torand debtor, to be relieved against, the release, charging them with practice, &c: that the devisee was without remedy. 18 Fin. Abr. 304. pi. 18.
    But it is claimed that there was a severance of the joint right, by the assignment to Gilbert, and settlement with him; and that Wolcott's taking a release afterwards from Taylor was, therefore, a wrong. Admitting that Coleman might, after the assignment, sue alone on the covenant, this only proves, that where one has received satisfaction, the other having the legal right, may recover his share, in a suit on the original cause of action, against, the party originally liable ; i. e. that the whole duty is not discharged by the satisfaction of one's share. Does this show, that where one has received satisfaction for the •tehole duly, the other may still maintain an action ? Further, if there was an entire severance, the release does not affect Coleman, and, on that ground, no wrong has been done. If the release would bar, there was no severance ; if it would not bar, then clearly there is no cause .of action.
    Again, was the covenant to convey land to Coleman aqd Taylor severable, so as to oblige Wolcott to convey to Coleman and Gilbert ?
    
    Secondly, if there was a fraud committed, Still there Vías no damage; and it will not be contended, at this day, that frapd, without damage, will support an action. The injury wás not complete. The release had not become effective. Suppose A. forges a note in the name of can B. recover for the injury, before he has been sued upon the note ? Or, suppose a suborned witness swears; and then the plaintiff withdraws his action ; can such plaintiff recover for any injury he has sustained by the false swearing ? Or, suppose another case, which will furnish a decisive test of the principle: Suppose Coleman had; recovered in his first action; where would be the injury?
    Thirdly, a recovery in this action would not bar a suit on the covenant. The causes of action are not similar, or concurrent. 6 Co. 7. 4 Bac, Abr. 116. Suppose there: had been judgment on the release for the defendant, in the first action; would that bar this, if the res gesta were actionable ; i. e. supposing all other objections removed ?
   By the Court.

The questions arising in this case are, whether the plaintiff has shown any cause of action; and if he has, whether he has remedy at law.

It is alleged in the declaration, that the defendant, with an intent to defraud the plaintiff of certain^sums of money advanced on a covenant set forth in the declaration, obtained from Taylor., a joint covenantee with the plaintiff, a release, by which he, the defendant, was discharged from such covenant, knowing that Taylor was a bankrupt, ánd that such money was justly due to the plaintiff. The plaintiff stands on the same footing as the assignee of a note, where the maker obtains a discharge from the assignor, knowing him to be a bankrupt, and having notice of the assignment. The plaintiff had in equity as strong a claim for the money advanced by him on the covenant as the assignee of'a note has to the money due upon it; and it was as fraudulent for the defendant to obtain a release from the joint covenantee, as for the maker to obtain a discharge from the assignor of a note.

The release entirely extinguished the ri^ht of the plaintiff by force of the covenant, without the judgment •of a court; and the pleading of it in bar of the action was sufficient evidence of the intent of the defendant to avail himself of it.

Formerly, in similar cases, it was holden, that relief could be obtained by bill in equity only; but courts of law have adopted the same principle, and suits have been entertained for such injuries, not only without experiencing any inconvenience, but with general acquiescence and approbation. So long and uniform has been this practice, that it is deemed a part of our common law.

When principles have been settled by the practice, and sanctioned by the experience of courts of chancery, it is highly expedient to incorporate them with the legal code, in cases where the same relief can be furnished. This has long been the usage of courts of law ; and they have borrowed many important and valuable improvements from that source.

It might as well be insisted that we should retrace our steps, and furnish relief in chancery only, in all the other instances where courts of law have adopted their principles, as in the case under consideration. But such a fluctuation between law and equity would be productive of the greatest inconvenience, uncertainty and confusion.

For these reasons, we are of opinion, that an action for this injury is sustainable at law.

Judgment reversed.

After the above decision, Daggett stated that a'motion for a new trial had been made, at the same time with the motion in arrest, in the court below. He therefore moved, that the cause should be remanded, to be proceeded with in the court below, in the same manner as though the motion in arrest had never been made. The court remanded the cause accordingly.  