
    *Lambert et als. v. Jones et als.
    January Term, 1856,
    Richmond.
    1. Bills of Exchange — Acceptance on Faith of Funds in Hand — Effect.—If a bill of exchange is drawn on one, who accepts it on the faith of funds of the drawer in his hands, he acquires an equitable interest in those funds, and is entitled to set off his liability on the acceptances, against his obligation to pay those funds, and to retain them pro tanto for his indemnity.
    2. Note Secured by Deed of Trust — Equitable Assignment of. — The payee of a note, secured by deed of trust, directs the trustee to sell the property, and pay the proceeds to another — this is a good equitable assignment of the note to that other.
    3. Composition Deeds — Right of Creditor to Retain Note Assigned by Grantor before Deed Executed  — A party to a composition deed, who executes the release required thereby, of all claims and demands against the grantor, in consideration of its benefits, is not to be prevented, either in view of the release, or of the general principles in regard to composition deeds, from retaining a note assigned to him in good faith by the grantor, before the execution of the deed, in discharge or payment of a bona fide debt.
    4. Evidence — Stamp Law of Maryland a Local Law.— Though a stamp may be required by the revenue laws of Maryland, on the endorsement of an over-due note, before the endorsement can be given in evidence in a Maryland court; yet such endorsement, though made in Maryland, and unstamped, may, nevertheless, be given in evidence in the courts of Virginia — for the stamp law of Maryland is a local law, and can furnish no rule of evidence for the courts of this State.
    5. Chancery Practice — Attachment of Debt Due Firm: —Name of Individual Partners Incorrectly Stated-Effect. — A bill is filed seeking to attach a debt due by L. to the firm of T. J. & Co., consisting of S. J. and P. H. S., in satisfaction of a debt due by that firm, so composed, to the plaintiffs. In the exhibits filed with the bill it appears that the firm of T. J. & Co., in fact consists of S. J., surviving partner of himself and J, J. Such a bill creates no lien on the debt due by L. to S. J. surviving partner of T. J. & Co.
    6. Same — Functions of an Amended Bill. — An amended bill is not to be filed, if it shows that the original bill is groundless, or presents a new and distinct matter of controversy. The legitimate functions of an amended bill are, to bring before the court other parties, and to explain and set forth more fully the matters of the original bill, or matters connected with the original bill which should be brought into the litigation.
    
      7. Same — Attachment Proceedings. — Proceeding's in equity by way of attachment should he made to conform strictly to all the rules of pleading.
    *This was a proceeding' in. equity, in the nature of a foreign attachment, instituted by Rambert and McKenzie in the Circuit Court of the U. S. for Alexandria county in the District of Columbia, on the 15th ' of September, 1846, against Samuel Jones, jr., and Patrick H. Sullivan, merchants and partners trading in Baltimore, under the name of Talbot Jones & Co., Samuel B. Rarmour and Raw-rence B. Taylor. The bill alleged that said Talbot Jones & Co. were indebted to the plaintiffs in the sum of $3,000 on an accepted bill of exchang-e — that they were non-residents of the District of Columbia —but that there was a debt due them, by note from, said Rarmour, more than sufficient to pay their demand, which said note' was secured by a deed of trust upon certain real estate in the town of Alexandria, in which deed said Taylor was trustee. They, therefore prayed, that this debt and the property by which it was secured, might be attached in the hands of said Rarmour and Taylor, for their benefit. In October, 1847, an amended bill was filed, and other parties made, by which the court was informed that Patrick Henry Sullivan was not a member of the firm of Talbot Jones & Co., but that Samuel Jones, Jr., was the surviving partner of himself and John Jones, composing that firm, and that the debt was due to him alone, as such survivor from said Rarmour. It further appeared, from the answers and evidence, that the note said to be due from Rarmour to Talbot Jones & Co., had been, on the 14th day of August, 1846, transferred and assigned to Jones, Burneston & Co., of Baltimore; and the court below decreed that the latter were entitled, by priority, over Rambert & McKenzie, to the fund secured by the deeds aforesaid. Ram-bert and McKenzie appealed to this court. The facts of the case are at large set forth in the opinion of the court here.
    P. R. Smith and Robert J. Brent, for appellant:
    The question is one of conflict between the assignment to Jones, Burneston & Co., by Talbot Jones & *Co., of the debts due them by Rarmour; and the attachment lien of the appellants on the same debt.
    The assignment to Jones, Burneston & Co. was not an absolute one; it was only intended to provide against any responsibility by them for Talbot Jones & Co. ; it was a conditional assignment — a mere pledge; but even supposing it absolute and for value, it was void:
    1st. Because Jones, Burneston & Co. were parties to the compensation deed, and it is perfectly well settled that such a party is bound by the terms of the deed, and can get no benefit from any other agreement or arrangement with the creditor, or any benefit at all, except through the deed. Eastabrook v. Scott, 3 Ves. jr. (Sumner’s edition,) 461, note 1; Pendlesbury v. Walker, 4 Young & Collier, 424; Cowper v. Green, 7 Mees. & Welsb. 633; Reicester et al. v. Rose, 4 East, 372. Even collateral security to a party to such a deed to secure what, oí-as much as, the other creditors were to receive, is void. 1 Raw. Rib. 48; Idem, 54. These authorities distinctly settle, that if a creditor, party to a composition deed, take any collateral or other security for his debt than that offered by the composition deed, it is a fraud upon the other creditors, and is therefore void. It may be said, that the security by assignment of the note was a settled and completed transaction, prior to the deed. Sadler v. Jackson, 15 Vesey, 62, is an answer to any such argument.
    But, again; Jones, Burneston & Co. have released Talbot Jones & Co., or rather Samuel Jones, jr., the surviving partner, from all debts or demands of whatsoever kind, in consideration of the provisions of the composition deed. The note assigned to them by Talbot Jones & Co., secured by the deed of trust, was a mere security to them for their debt, and we confidently maintain that the security is extinguished and gone with the deed released. The present claim of Jones, Burneston & Co. is in principle but the case of a claim to enforce a mortgag-e security, when the mortgage debt is *paid and satisfied, or duly released under hand and seal. In all cases whatever, the security is incapable of separate existence from the debt which it was created to secure. Being but appurtenant or accessorial to the debt, it is transferable with it, and extinguished or cancelled with it.
    At the time of executing this release, it will be observed that Jones, Burneston & Co. had not realized the fruits of their security ; they cannot, therefore,, claim to hold it as an actual appropriation to or satisfaction of their claim. Pearce v. Wallace, 1 Har. & Johns. 48.
    To show that the security follows the fate of the debt, which is the principal thing always to be regarded, vide Hooker v. Olmstead et al., 6 Pick. 482; Jackson v. Blodget, 5 Cowen, 205-6; Bell v. Morse, 6 N. H. Rep. 205; Pratt v. Vanwyck’s ex’or, 6 Gill & Johns. 495-9 ; 2 Spence’s Eq. 655. And that release of principal debtor releases the sureties, unless the remedy against them is expressly reserved. 1 Raw. Rib. 85, side p. ; Idem, 96, side p. A personal release of one joint debtor, in consideration of accepting a composition deed, will release the co-debtor. Idem, 98, side. This release is absolute and unconditional, and there can be no dispute in such cases. Idem-, 99, side. Even the default in paying the composition as stipulated will not in any case revive the old debt which has been released. Idem, 101, side. It seems that Jones could have brought his action for money had and received, being the proceeds of any security improperly retained by these composition creditors. 1 Raw Lib. 109, side. Smith v. Cuff, 6 M. & S. 160; Bradshaw v. Bradshaw, 9 M. & W. 29; Horton v. Riley, 11 M. & W. 492; Cullingworth v. Loyd, 2 Beav. 38S, (17 Cond. Eng. Ch.) Per Graham, Birwood v. Raphael, 5 Price, 602. The debt here is completely extinguished, and a new promise would be nudum pactum. Cockshott v. Bennett, 2 T. R. 763; Cowper v. Green,, 7 M. & W. 633; 1 Law Lib. 124, side.
    Whatever satisfies, releases or extinguishes *the original debt, discharges the accessory obligation. Edwards on Bailment, 202; Isaac v. Clark, 2 Bulst. 306; Elliott v. Armstrong, 2 Blackf. 198; Richards v. Sims, Barnardiston’s Ch. Rep. 93; 2 Spence’s Equity, 748; 1 Coke Litt. 76, a. The acceptance of the provisions of the deed of trust is an actual accord and satisfaction, and no action could afterwards be maintained against Jones on the original debt. 2 Greenleaf, Ev. § 28. The authorities have gone so far as to declare, that an agreement to accept a composition deed, and to release, will amount to satisfaction, if performance is tendered by the debtor and refused. 2 Greenleaf, Ev. $ 31; Bradley v. Gregory, 2 Campb. 383.
    But, in the present case, the deed was accepted as satisfaction, and the release executed. Such a composition deed, and the release thereon will support the plea of payment. 2 Greenleaf, Ev. § 526; Lewis v. Jones, 4 B. & C. 513. The release is binding at law, and equity will not allow the creditors, releasing their legal right, to obtain an advantage over other creditors. 1 Peters, 16. Jones, Burneston & Co. have deliberately released one security, in order to obtain the benefit of another, and they cannot now be relieved. 1 Peters, 16; 12 Peters, 199.
    2d. If the release of Jones carried with it the release of the transfer on the endorsement of Larmour’s note, as between Jones, and Jones, Burneston & Co., can the trustees, Winn & Ross, be considered as equitable assignees oil Larmour’s debt? We consider this a very plain case. Winn & Ross take under Jones, and can take no better title than he had at the date of his deed to them, which being posterior, was of course subject to the lien of an attachment. There is nothing in the transaction to give even a color to an equitable assignment. It is the naked case of a release of a debt with its attendant security, which release enures to the benefit of the pending attachment lien. See on this, 2 Spence’s Eq. 746; 5 Hare, 481-2.
    3d. Can Larmour’s estate claim to deduct the amount *of his acceptances of Jones’ drafts from the amount of his debt to Jones, as against the lien of these attaching creditors? We think not. As endorsers Jones, Burneston- & Co. were ignorant of the private • arrangement by which Samuel Jones, jr. was to retire the acceptances of Larmour, endorsed by Jones, Burneston & Co., and they could well call on Larmour or his estate to exonerate them. In such a case, a Court of Equity would, even if the acceptances were shown to be unpaid, observe the principle of marshaling securities in favor of the appellants, and require Jones, Burneston & Co. to protect themselves, in the first instance, by having recourse to Larmour’s estate, which stands, to them, in the relation of principal debtor, that these attaching creditors should be let in to participate in the only fund applicable to their claim.
    Nor could Larmour’s representatives object to the enforcement of this primary liability :
    1st. Because, as acceptor, he is bound to indemnify Jones, Burneston & Co., the endorsers.
    2d. Because, by the private arrangement on which the drafts were accepted, he trusted to the promise of Jones to retire the acceptances, and cannot now throw the loss sustained by the breach of that promise, on other parties.
    3d. Because there is no proof of an agreement between Larmour and Jones, to allow the acceptances to be charged against the antecedent debt, due from Larmour to Jones, and when it is stated that the drafts were drawn and accepted in consideration of the debt now attached, the idea of their being paid out of it is negatived by the further admission that they were accepted on Jones’ promise to take them up at maturity.
    We cannot conceive, therefore, how any inherent equity can be shown bj which, on this agreement, Larmour could claim to off set his accommodation acceptances of Jones’ drafts against either the endorsees of his note to Jones, or against attaching creditors who *might attach that note as the property of Jones. Can the garnishee, by the laws of Virginia, defeat an attaching creditor by pleading or proving an account on bar against the absent debtor? And if he can rely on his, account in bar, can he defeat such attachment by showing as an offset his unpaid acceptances of his creditor’s drafts drawn on an express agreement that they were not to be paid out of the debt, by the creditor himself?
    We therefore consider that Larmour’s estate has no equity as against these attaching creditors. There never was any agreement, express or implied, that these acceptances were to be paid by Larmour, and credited on his debt to Jones. On the contrary, they are expressly shown to have been mere accommodation acceptances for-the benefit of Jones. The consideration or inducement for such acceptances was, that Larmour owed a debt to Jones, then overdue, and to oblige Jones and prevent any disposition, on his part, to collect that debt, Larmour consented to accept, for the accommodation of Jones, drafts not based on the amount of his debt to Jones, on the express promise of Jones to protect the acceptances at maturity. He has failed to do so, and Larmour, when his acceptances are paid, would stand as any other creditor of-Jones who trusted to his promises, without taking security. But as these facts would constitute no equitable defence in a suit brought by a bona fide endorsee, against Larmour as acceptor, so, we submit, that there is no equitable defence as against the lien of these creditors.
    But all difficulty on this point is removed, if we consider these acceptances as originally held by Jones, Burneston & Co. as security or indemnity against their endorsements, and that Jones, Burneston & Co. having paid the amounts thereof as endorsers for Jones, they have subsequently all the security held by them as well as the debt due by Jones to them. If we are right in this position, then Jones, Burnes-ton & Co. cannot enforce these acceptances in the face of their release to ojones and of their acceptance of the deed of trust, in full satisfaction. 4th. The note, though drawn in the State of Virginia, was endorsed to Jones, Burn-eston & Co., Samuel Jones, jr., in Maryland. The assignment was void, because not stamped according to the law of Maryland. That law, Sess. Acts 1844, ch. 280, requires a stamp on all notes, &c., “or other evidences of debt, above one hundred dollars,” for want of which they are declared void. We submit, that the assignment in this case is an evidence of debt within the meaning of the act. It is pregnant with the evidence of a conditional debt, now become absolute by non-payment of the note. Judge Marshall says it is not simply to transfer, but a new and substantive contract. Slocum v. Pomery;6 Cranch, 221; Lenox et al. v. Prout, 3 Wheat. 520. The endorsing a note is in effect making a new one. Williams v. Field, 3 Salk. 68; Smallwood v. Vernon, 1 Strange, 479; Harry v. Perrit, 1 Salk. 133. The endorser is in every respect the same as drawer or maker. Bishop v. Dexter, 2 Conn. R. 419; Dehers et al. v. Harriot, 1 Showers, 164. Such is the irresistible language of legal authorities. And it is therefore universally held, that in a suit by endorsee against his endorser, the endorsement is evidence of debt under money counts, and in such case no evidencce of the debt or contract is required ; for the further proof of demand on maker, is only to show that the conditional has become an absolute debt. We therefore hold, that after demand, and notice, the endorser being fixed, the endorsee might write over the signature a conditional promise to himself, if endorsed before due, and if after due, he might write a draft at sight on the maker in his favor, and such an order requires a stamp. Farbank et al. v. Bell et al., 1 B. & Aid. 38-9.
    Here is, then, according to legal intendment, a draft drawn in Maryland in favor of the endorsees to whom it is delivered in Maryland, directing the maker of the note, residing in Alexandria, to pay the amount at *sight to the endorsees, who may be termed the payees of the sight draft. Now, suppose that such a contract was, after the stamp act, written on a separate paper, would not a stamp be required? And, surely, such a contract in substance being fendorsed on the back of another distinct contract, does not detract from its nature or effect, nor escape the terms of the act. And, it is to be noticed,- that the first section of the law excepts specially checks at sight on banks or bankers.
    Against this view, it will be said — ■
    1. That when this note was given to the payees, it was negotiable, and that incident attaches to it free of future charge, as the thing or corpus negotiated was free of the stamp duty. But the answer to this is two-fold: First, that it might have been negotiated or assigned without recourse, in which case no new evidence of debt being created, the endorsement would be free of one objection, as it would not then be any evidence of debt. Secondly, that the question of taxing an existing negotiable instrument in the hands of the holder, whenever negotiated, is a question of legislative power, (to be hereafter considered,) and not a consideration to alter an otherwise evident construction.
    2. It will be objected that this argument applies to every endorsement, as well upon a stamped as unstamped note, and it never could have been the design to require thirty stamps, if so many endorsements, on the same note. But we enquire, why should not the Legislature as readily tax the contract of indebtedness between the payee and his endorsee, and so on ad infinitum, as that between the maker and payee? True, if you place a high stamp duty on each transfer, and multiply the transfers often enough, which would be to suppose an extreme case, you may, by successive taxes, reduce the value of the original note to nothing, provided the last purchaser has to pay the cost of the previous stamps. But that is solely a question of power, just as much involved in taxing the thing once as five ^hundred times — for it might as well be argued that a farm, being taxed by the State at each sale of it, the tax would finally absorb its value. But here is a draft at sight, written on the back of an over-due note. Could not Jones, Burneston & Co. write out those words, “pay the within amount at sight to J., B. & Co.?” If so, a bill of exchange is virtually written on this note.
    According to the construction of the act, whether this endorsement be, in law, a promissory note or bill of exchange, in land or foreign, or evidence of debt, it is expressly covered by the act. See also Plim-ley et al. v. Westley, 2 Bingh. N. Cases, 249, (29 F. C. L. 322). But there is a clause near the middle of the 7th section of the act which requires a second stamp if any instrument or thing required to be stamped is written on a paper previously stamped and containing a separate thing. This confirms our views. See also Burton, ex parte, 3 Gill, 1.
    As to the constitutional power, we contend that the Legislature did not impair the obligation of any contract by this law, but had a right to tax any new contract that might be written on the existing promissory note in Jones’ hands, and so -on as against each holder, it being as clearly liable as stocks, &c.
    Finally, if this be right, the law annuls that portion of the contract contained in the endorsement which furnishes the evidence of a debt from Jones to his endorsee; and as this portion is bad, the law will not apportion the entire contract and declare it void, as the evidence of a debt, but good as an assignment, for that would be to make this an endorsement without consideration and without recourse — it must be good or bad in toto. Then Jones could claim the property in this note against his illegal endorsement, and so can his attaching creditor also.
    Again, it may be said that stamp laws are but for revenue, and foreign States will not avoid a contract for that reason. But Story denies this, and with good reason.
    Story’s Confl. Raws, '& 260, note.
    *H. Winter Davis, for appellees:
    The decree is one simply ascertaining the priority of Jones, Burneston & Co. to the fund, and decreeing no specific amount. The proceeding was under the old attachment law of 1792.
    The endorsement on the bill, by counsel, is the effective thing under the old system, and on that endorsement the claim made (as in the bill also) is one against Samuel Jones, jr., and Patrick Henry Sullivan, who are described as composing the firm of Talbot Jones & Co., to whom the Rar-mour debt is alleged to be due; which debt is sought to be attached; and yet in the deeds exhibited with the bill, it appears that Talbot Jones & Co. was composed of Samuel Jones, jr., surviving partner of himself and John Jones, and that the Rar-mour debt was due to that firm so composed. This is a fatal variance, and the attachment lien must fail. If a decree had been made that Rarmour pay the fund to S. Jones, jr., and P. H. Sullivan, he might be required to pay the same again to S. Jones, surviving partner of Talbot Jones & Co. It is apparent, then, that the decree would not protect'Rarmour if made in accordance with the attachment. The bill of 15th December, 1846, should be dismissed, and cannot bind the subject in the hands of any one, and if it should be dismissed, it is no lien.
    Conscious of this result, the counsel on the other side, when the answers came in, taking issue on these points, amended their bill, making an entirely new case. On this bill there is no attachment; for the endorsement, which is the essence of the attachment, as before said, is wanting. It was nothing more than an ordinary bill in chancery, and, without the endorsement, constituted no lien until the answers came in; for non constat that the defendants saw the bill till then. This bill states that, since the original bill, the plaintiffs had discovered that S. Jones, jr., only was of the firm of Talbot Jones & Co. at the time of the acceptance, but still does not deny the debt of Rarmour to be a debt of S. Jones and *P. H. Sullivan. This bill also sets forth the assignment by Talbot Jones & Co. (or Samuel Jones, jr.) to Jones, Burneston & Co., and the composition deed to Winn and Eoss, trustees, and makes these and others parties. The controversy arises, solely on this amended bill, between the attaching creditors and Jones, Burneston & Co., the assignees — -presenting the question, whether the assignment is valid, and if so, whether the release is effectual against it?
    1. As to the validit of the assignment.
    The note assigned represents the debt in the deed of trust — the subject to the attachment — and it was taken by the agent of Jones, Burneston & Co. to Baltimore, (after being delivered to him by Taylor, the trustee,) to be endorsed by Samuel Jones, jr., surviving partner of Talbot Jones & Co., to the other firm. Before, then, we reach any question of the stamp law of Maryland, we have a perfect equitable assignment of the debt, by the order of Talbot Jones & Co., to Taylor, of August, 1846, in accordance with which it was delivered to said agent.
    The assignee of an equitable interest takes it, subject to all prior equities; but after the equitable assignment has been brought home by notice to the trustee or other party having it in hand, the equitable assignee takes the right to the subject against all the world. Jones, Burneston & Co. might, therefore, have come in, and insisted on enforcing their interest, under the order of Talbot Jones & Co., though the endorsement had not been subsequently made to them; and hence, even if the endorsement should have been stamped, (as I deny,) it does not affect the question.
    But have the stamp laws of Maryland any thing to do with the matter? Those laws only require stamps to be put on notes made in that State. This was not the case with the note under consideration, for it was made in Virginia and was never in Maryland, until the assignment was made. On this ground, it does not fall within those laws; but if it was otherwise, the argument *would be fatal to the claim of the appellants, for the acceptance, on which their attachment is based, was made in Baltimore without a stamp.
    Again : The law states that the want of a stamp is to prevent the paper from being given in evidence in that State, and this seems to be its only effect. If so, it does not vitiate the paper in another State. In Chitty on Bills, chapter on Stamps, commencing at page 122, it will be seen that the law of Maryland follows, with singular minuteness, the stamp act of England — that such a law is merely local and does not destroy the paper — -and that the law of the forum is the law regulating the rights of parties under the paper, that law making it evidence, &c., though without a stamp.
    This instrument was made in Virginia, and not in Maryland, before the stamp law was enacted. Does the endorsement of the paper in Maryland, after the stamp act, alter the matter? The endorsement is a mere quality of the note, and the law does not contemplate any stamping after the making of the paper. A promissory note, payable to order, is stamped — is it to be supposed that a new stamp is to be put on the paper at every endorsement, until the whole paper is covered with stamps? It would be absurd to suppose that fifty or one hundred stamps would be required on the note, should there be so many endorsements ; and this, I submit, plainly shows, that it was never intended to have paper stamped after it is made — in other words, that the endorsement is not to be stamped.
    . Is the phrase, ‘ ‘or other evidence of debt,” to aid the argument? I submit the endorsement is no evidence of debt, within the meaning of the law. It is said, on the other side, that it is a new making of the note. I admit it is, for some purposes, but not for others, and submit, that this argument is a mere substitution of an analogy adopted by the courts for a principle of law. But the truth is, this stamp-act argumeht is a cut-throat all the way through. In the supplement to this act (Maryland Sess. Acts, 184S, ch. 193,) there is an enumeration *of many papers which are to be stamped, and among them is release of mortgage. ’ ’ The release on which the other side -rely so strenuously is not stamped, and if their argument be sound, as to the power of this court to enforce the stamp laws of Maryland, it would be worthless in support of their views.
    On this subject I have many references to authority, but am content with the settled law of England, as laid down by Chitty, above quoted, that the stamp act is a merely local one.
    2. As to the effect of the release.
    It is insisted, in the first place, that Jones, Burneston & Co. having signed the composition deed, are precluded from insisting on the benefit of the assignment; and, in the second place, that even if the assignment were good against this principle, the benefit of it was released by them.
    The ground on which a new security is void, in the hands of-a party to a composition deed, is, that it is a fraud on the other parties to it; but, surely, one not a party to the deed is not to be permitted to take advantage of such a fraud, declared by the law sub modo, and from considerations of public policy. How much stronger would be the objection, if at the same time that he asserts such a fraud to be committed, he claims the property for himself under an attachment or otherwise, instead of letting those have it, who have been defrauded of it. A fraud committed on parties to a deed can only be taken ' advantage of for the benefit of' such parties. Smith v. Stone and Milliken, 4 Gill and Johns. 310-322; Harding v. Stevenson, 6 Harris and Johns. 264; Kennedy v. Boggs, 5 Idem. 408.
    Again: The assignment here is either fraudulent and void, or not; if void, it is, because the deed conveyed this note to the creditors secured by the composition deed, and the attaching creditors cannot reach it; if not void, the assignment has precedence in favor of Jones, Burneston & Co. over the lien of the attaching creditors; and a case exactly similar to this was so decided *by C. J. Taney, in the Circuit Court of Baltimore. I submit, ■however, that no case can be found, certainly none has been cited on the other side, in which it has been held, that it was fraudulent in a party, signing a composition deed, to hold funds long before placed in his hands, and dedicated to a particular purpose. The case of Sadler v. Jackson, cited on the other side, decides no such proposition. That was a case in which a party had taken a new security at the time, for something beyond what was to be paid to the other parties to the deed.
    But it is thought that the release extinguished the debt from Talbot, Jones & Co., and Jones, Burneston & Co., and left the property, conveyed to secure it, liable to the attachment. Now I submit, that one may-release another personally and individually, and yet hold on to property given him in the payment of or in security for his debt, and this, as it seems to me, is the operation of the release. But suppose the release extinguished the debt; then, as in the case Where the assignment was supposed to be void, the property on which it was secured belongs to the trustees in the composition deed; and so these attaching creditors cannot reach it; or else the release did not extinguish the debt, and Jones, Burneston & Co. are entitled to the property, except so far as they may be prevented by the composition deed. In either case, the attaching creditor must fail.
    Would it not have been absurd, if Samuel Jones, jr., had come into court, claiming that the release had extinguished the debt, and that he was, therefore, entitled to the property? And how can his creditors, claiming only to stand in his shoes, place themselves in any better position?
    Again: There is a peculiarity about the claim of Jones, Burneston & Co., which would withdraw it from the operation of the principles in regard to composition deeds. The release to Jones does not release Barmour; Chitty on Bills, 315-16, 319; Harrison v. Courtauld, 2 Barn. & Adol. 36; and Jones, Burneston & Co. have *the right to sue Barmour on the bill, drawn by Samuel Jones, jr., and accepted by him, on the faith of funds in his hands belonging to Jones; and Barmour has the right, for his protection, to have the debt paid out of that property; and, if necessary, to retain it for his indemnity. Chitty on Bills, 318; Willis v. Ereeman et ais., J2 East. 657.
    As to the nature and operation of the assignment, that it vests the title to a chose in action absolutely, eo instanti, vide Gardner v. Bachlan, 4 Milne & Craig, 129; Cooper v. Tynmore, 3 Russell, 60; Dearie v. Hall, Idem, 1; Mandeville v. Welch, 5 Wheat. 277-286; Bholen et al. v. Cleveland et al., 5 Mason, 174; E)x parte South, 3 Swanston, 392.
    R. J. Brent, for appellant,
    replied at considerable length: but it is unnecessary to spread out his argument, as the substance of his views is given in the opening argument, and enough of the argument has been presented to show the views of counsel on both sides. He earnestly combatted the view of the appellee’s counsel as to the insufficiency of the original and amended bills.
    
      
      BiIIs and Notes. — See monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      Composition Deeds — Right of Creditor to Retain Note Assigned by Grantor before Deed Executed. — For the proposition laid down in the third headnote, see the principal case cited in Long v. Meriden Britannia Co., 94 Va. 603, 27 S. E. Rep. 499.
    
    
      
      Attachments. — On matters pertaining to attachment, see monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
    
      
       Amended Bills. — See generally, monographic note on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.
    
   ETELD, P.,

delivered the opinion of the court as follows:

On the 4th day of December, 1835, Samuel B. Larmour, being indebted to Samuel Jones and John Jones, of Baltimore, composing the late firm of Talbot Jones &Co., in the sum of 81,500, for money advanced, and in a further amount not specified, on merchandise account, by deed of that date, conveyed to Robert J. Taylor, three tenements or lots of ground in Alexandria, in trust to secure the payment of the same. The indebtedness referred to in the deed of trust was subsequently increased by other dealings, to $4,837 91. Por the payment of this amount with interest, from the 19th December, 1840, Larmour executed his promissory note on the 10th Pebruary, 1841, payable to Samuel Jones *and John Jones, or order; and to secure its payment, he conveyed, in trust, to L. B. Taylor, another tenement or lot of ground in Alexandria. The note was kept by Mr. Taylor, in his hands, as the property of Talbot Jones & Co., until the 10th of August, 1846. The firm of Talbot Jones & Co., at the date of the note, consisted of Samuel Jones, jr., only, the surviving partner, John Jones, the other partner, having died in June, 1840. In 1846, Talbot Jones & Co. drew, in favor of Jones, Burneston & Co., five bills of exchange on Larmour, to the amount of $5,729 69. The first was dated April 1st, 1846 — the last, July 20th, 1846. They were drawn by Talbot Jones & Co., and were accepted by Larmour on the faith of Larmour’s note to Talbot Jones & Co., then in the hands of Taylor. The bills were endorsed by Jones, Burneston & Co., discounted at the bank, and proceeds received by Samuel Jones, jr. These bills were afterwards protested, and paid by Jones, Burneston & Co. On the payment of them Jones, Burneston & Co. became the creditors, for their amount, of Samuel Jones, jr., the drawer, and of Larmour, the acceptor. He had a right to go at once against Larmour, as acceptor, and make him pay the amount, or he had a right to go against Samuel Jones, jr., as drawer, and make him pay the amount. Had he taken this last course, then, on payment of the amount, Samuel Jones had a right to go against Larmour, and compel him to refund to him. Larmour having accepted the bills on the faith of funds of Jones in his own hands, (his own note to Jones,) he was an acceptor for value, and was liable, as such, to the drawer. He was, in fact, first liable, and last liable, to pay the amount of those bills. On the 10th of August, 1846, Talbot Jones & Co. drew an order on Taylor, directing him to close the deed of trust given by Larmour, and pay the proceeds to Jones, Burneston & Co. The order was accepted by Taylor, and Taylor then sent the note to Jones, Burneston & Co., of Baltimore, and they got Samuel Jones, jr., surviving partner of Talbot Jones & *Co. to endorse the note to them. The endorsement was made in blank, on the back of the note, on the 14th of August, 1846, and the note delivered by Samuel Jones, jr. to Jones, Burneston & Co. Let it be borne in mind, that all of the five bills, hereinbefore referred to, had been drawn, and the first one in the series had become payable a day or two before the note of Larmour was endorsed to Jones, Burneston & Co. Samuel Jones, jr., alias Talbot Jones & Co., having failed in the fall of 1846, on the 6th of October of that year he made a composition deed, by which he conveyed all his estate, except “the Wheatfield Inn,” and all debts due to him, or to Talbot Jones & Co., to William Winn and James Ross, for the benefit of his creditors who should, ‘on or before the first day of January next, execute and deliver to the trustees full and absolute releases and ac-quittances to the said Samuel Jones, jr. of and from their aforesaid claims.” The trustees issued their written notices to the creditors on the first of December, apprising them of the provisions of the deed. At the foot of one of these notices, Jones, Biume-ston & Co., on the 31st December, 1846, executed, under the hands and seals of William Woodward and Thomas Burneston, the surviving partners, a release to the following effect: “In consideration of the provisions of the above deed, we do hereby release to the said Samuel Jones, his executors, administrators and assigns, all demands, on whatever account, which we have against him, either jointly or severally.”

On the 13th June, 1846, at Alexandria, D. C., Lambert & M’Kenzie drew a bill for $3,000 in favor of John Ilooff', Cashier, on Talbot Jones & Co., of Baltimore, which Jones accepted by the firm name of Talbot Jones & Co. The bill was protested for non-payment, and is the foundation of the appellant’s claim in this suit. Talbot Jones & Co. being non-residents of the District of Columbia, Lambert & M’Kenzie filed their bill in equity under the act of 1792, one of the Virginia statutes, then in force in Alexandria, regulating *proceedings against absent defendants and absconding debtors. See Code of 1792, p. 15. They made Samuel B. Larmour, Lawrence B. Taylor, Samuel Jones, Patrick Henry Sullivan, and John Hooff defendants, and no one else. The object of the suit was to attach in the hands of Samuel B. Larmour a sum sufficient of a debt due from him to Samuel Jones and Patrick Henry Sullivan, absent defendants, trading under the name of Talbot Jones & Co., to satisfy their claim against Samuel Jones and Patrick Henry Sullivan of $3,000 with interest and costs. The subpoena, with the restraining order endorsed thereon, was served on the home defendants, Rar-mour and Taylor, on the ISth September, 1846. After this, and before any further proceedings in the cause were had, Alexandria was retroceded to Virginia, a circuit superior court of law and chancery established there under the jurisdiction of Virginia, and the cause removed to that court. ; . i 1 :

In June, 1847, the defendants Taylor, Samuel Jones and Patrick Henry Sullivan, filed their answers. Prom the answer of Jones and Sullivan it appeared that there were fatal errors in the plaintiffs’ bill, in alleging that the bill of $3,000 had been drawn upon and accepted by them as members of the firm of Talbot Jones & Co., when that firm had been composed of Samuel Jones and John Jones, and that the debt due from Rarmour was not due to Samuel Jones and Patrick Henry Sullivan, but to Samuel Jones and John Jones, and so expressed on the face of the note and deeds of trust. To correct these errors was the object of an amended bill filed in October, 1847, by which new parties were also made, and amongst them were Jones, Burneston & Co., of Baltimore, and Samuel Jones, surviving partner of Samuel and John Jones of the firm of Talbot Jones & Co. In consequence of these errors, Rambert & M’Kenzie, by virtue of their attachment of the ISth September, 1846, acquired no such valid lien on the Rarmour debt as would have prevented him from paying it away, nor as would incapacitate Samuel Jones from *giving a lien or of assigning it over to another person on good consideration. The plaintiffs, as to this debt, acquired no valid and effectual lien on the debt before their supplemental bill was filed in October, 1847, if then. Before this time, the order from Samuel Jones to Taylor had been drawn and accepted; the note endorsed by Samuel Jones, surviving partner of the firm of Talbot Jones & Co., to Jones, Burneston & Co. ; the five bills drawn, accepted, endorsed, negotiated, (and taken up by Jones, Burne-ston & Co. after they became due) ; the composition deed of trust from Samuel Jones to Winn and Ross executed, and the release made by Jones, Burneston & Co., by virtue of which, if the Rarmour debt had not been theretofore assigned to Jones, Burneston & Co., it passed to Winn and Ross under the deed of trust. If so assigned,' but. released by Jones, Burneston & Co., it in like manner inured to the benefit of the creditors under the composition deed. So that, in either case, the attachment lien of the appellants, of October, : 1847, if they had any, would have to yield all claim of priority over the claims of . Jones, Burneston & Co. and of the creditors under the composition deed.

In relation to this attachment lien of • 1847, I will, in passing, say, that it would ■ ; not be difficult to shew that the plaintiffs . had no right to file their amended bill for i the object above referred to, because, on its face, it shewed that the original bill was groundless and should have been dismissed. An amended bill is not allowed to be filed to present a new and distinct mat1 ter of controversy, but to bring before the court other parties to the controversy, or to : explain and set forth more fully the matters of the original bill, or matters connected with the original bill, which should be brought into the litigation. And this being a proceeding by attachment, should be made to conform strictly to all the rules of pleading. The amended bill introduced entirely new matter, wholly separate and distinct from the matter of the original bill. A debt *due to the plaintiffs from Samuel Jones, surviving partner of Samuel & John Jones, is altogether different from a debt due from Samuel Jones and Patrick H. Sullivan; and so also is a debt due from Rarmour to Samuel and John Jones from a debt due from Rar-mour to Jones and Sullivan. And equally separate and distinct from each other was the amended bill and the original bill. Nor would it be difficult to shew that there was nothing on which the attachment could operate; and, being a proceeding in rem, might have been dismissed on that ground, as the jurisdiction of the court could be sustained only on the fact that the absent defendants had effects within the jurisdiction of the court which were liable to the plaintiffs’ claim. But let this pass by as a matter of unimportant concern in this case.

: In 1846, Rqrmour owed Talbot Jones & Co. a note amounting, principal and interest, to about $6,500, secured by two deeds of trust on real estate. On the faith of this fund Jones, the surviving partner, drew five bills on Rarmour to the amount of $5,729 69. On the faith of this fund they were accepted by Rarmour. They were endorsed by Jones, Burneston & Co., knowing nothing of the arrangement between the drawer and acceptor, nor of the relations as debtor and creditor between them. The notes were discounted and proceeds received by Samuel Jones. The last in the series became payable November the 23d, 1846, and all five were taken up by the endorsers, Jones, Burneston & Co. On the payment of these bills Jones, Burneston & Co. became creditors of both the acceptor and drawer for the amount of the bills, with interest and charges. Rarmour, by virtue of his acceptance of these bills, became entitled to an equity in the note he owed Sam’l Jones, the surviving partner of Talbot Jones & Co., and had a right to set off his liability as acceptor for the amount of those bills against his obligation to pay the note due to Jones. See Feazle v. Dillard, 5 Leigh, 30, and Wayland v. Tucker, 4 Grat. 267. This equity *belonged to • ■ Rarmour. It exists to this day in favor of his administrator and heirs, and they have a right to have the proceeds of the Rarmour debt applied to the satisfaction of the five bills, if that has not been already done.

It "has been contended, on behalf of the appellants, that when Jones, Burneston & Co. executed their release under the composition deed, they ipso facto released the lien on the Barmour debt, which then enured to them by virtue of their attachment lien, and that the benefit of the two deeds of trust passed therewith to them as an incident. I shall have occasion presently to shew that the release did not operate on the Barmour debt. But suppose such had been the intention, in part, of that release, and that Jones (Talbot Jones & Co.) had been thereby discharged from their indebtedness to Jones, Burneston & Co., would that release Barmour, as acceptor of the bills, from his liability to pay the amount to Jones, Burneston & Co.? It most assuredly would not have that effect. Bar-mour having accepted these bills on the faith of the debt he owed Talbot Jones & Co., and being therefore an acceptor for value, he was the person ultimately bound for their payment; and as he was last bound, as well as first, no release of a man who was bound and might be compelled to pay before he was, would operate as a discharge of Barmour.

2d. On the 10th of August, 1846, Talbot Jones & Co. directed the trustee, B. B. Taylor, to close Barmour’s deed of trust and pay the proceeds to Jones, Burneston & Co. This order was accepted by Taylor. If this was not a legal assignment of the note from Barmour to Talbot Jones & Co. it was certainly a good equitable assignment of the note, and, as an incident to the transfer, the two deeds of trust made to secure the payment of the debt from Bar-mour to Talbot Jones & Co., also passed over to Jones, Burneston & Co. But, in order to remove, as would seem, all difficulty on this score, the note was sent by Taylor to Jones, Burneston Co. It was presented to Samuel Jones, jr., (alias Talbot Jones & Co.) and by him, as the surviving partner, was, by an endorsement made on the back of the note, transferred and assigned to Jones, Burneston & Co. and then delivered over to Jones, Burneston & Co. as their property. Their title to the note was, in its inception, a qualified right, depending on their having to pay these bills; but, when they paid the bills, their title became absolute, and they had a perfect right to regard the assignment of the note as a payment to be applied in satisfaction of the five bills, with all costs and damages thereon. And we are bound to conclude that they have done that which it was both their right and interest to do before they made the release herein-before referred to. If this is to be considered as having been done, how does the account stand? Taking the 20th of September, 1846, as the average period of time at which the five bills became payable, and setting off against their amount, including principal, interest and charges of protest, the amount of principal and interest on the Barmour note, and it will be found that there will be a balance of about $750 left of the Barmour debt, after refunding to Jones, Burneston & Co. the amount paid b}’ them on account of the five bills, for the payment of which the note had been transferred in August, 1846. This being the state of the account, there was no debt due, in respect to these transactions, from Talbot Jones & Co. to Jones, Burneston & Co., on the 31st December, 1846, upon which the release could operate. How this overplus shall be disposed of, is a matter in which the appellants have no interest, because Talbot Jones & Co. were otherwise indebted to Jones, Burneston & Co. to a large amount, and if the balance above referred to is not to be applied as a credit on that indebtedness, it must enure to the benefit of the composition creditors under the deed to Winn and Ross, who are entitled to priority over the appellants’ attachment lien (if any they have) under the amended bill filed in October, 1847.

*It has been argued, on behalf of the appellants, that the endorsement of Barmour’s note, on the 14th August, by Talbot Jones & Co., for the benefit of Jones, Burneston & Co., is void for the want of a stamp. Suppose we were to sustain this view of the appellants’ counsel, still the title of Jones, Burneston & Co. would not be invalidated. On the 10th of August, 1846, Talbot Jones & Co. directed Taylor to close the deed of trust and pay the proceeds to Jones, Burneston & Co. This was not a note in writing obliging Talbot Jones & Co. to pay money; it was a mere authority for Taylor to pay money to Jones, Burne-ston & Co., and being accepted bj- Taylor, the trustee and holder of the bond, gave to Jones, Burneston & Co. an equitable lien on the fund. It operated substantially as a transfer of the note and the securities bound for its payment. I cannot, therefore, perceive what just point the appellants would accomplish by invalidating the endorsement of the 14th of August. But let us notice the objection taken to the endorsement for the want of the stamp.

The law of Maryland (called the stamp act) of 1844, ch. 280, requires that a stamp tax shall be paid on every piece of paper on which shall be written certain enumerated instruments, specifying promissory notes, bills of exchange, and “other evidences of debt.” It is contended that the endorsement of the 14th of August, made by Talbot Jones & Co., falls within the meaning of the words ‘ ‘other evidences of debt.” The provisions of the statute of 3 and 4 Anne, in relation to promissory notes payable to bearer or order, placing them in all respects upon the footing of bills of exchange, was the law of the District of Columbia when this note and endorsement were made; and as Barmour’s note was a note payable to order, it is to be regarded as a bill of exchange, the legal title to which passed by endorsement. If it had been endorsed before it became due, that endorsement would have required no stamp, as no liability to pay attached to the endorser until fixed, after non-payment of the note, by ^protest and notice. But where a bill of exchange, after the day of payment has passed by, is endorsed, no liability can thereafter be fixed by protest and notice; because the bill cannot after that' be negotiated and protested. But the endorsement of an over-due bill is a new contract between the parties. It authorizes the endorsee to write a draft in his favor on the maker at sight. This draft, or new contract, would require a stamp. Firbank v. Bell, 1 Barn. & Ald. 38. I am willing, therefore, to concede, that if this were a suit in a Maryland court, the endorsement would be regarded as void for the want of a stamp, and would, not be received in evidence to prove title to the note. But the rule of evidence is very different here. In the language of Chief Justice Denman, in Brown v. Thornton, 6 Adol. & El. 185, 33 Eng. C. L. R. 47, I will say, ‘ ‘ we cannot here adopt a rule of evidence from a foreign court.” I have examined a great many decisions on this question, and find they are somewhat' in conflict. But the weight and current of authority show that the want of the stamp is no good cause of objection here to the endorsement of 14th August.- Mr.'Robinson, in his new work on Practice, vol. 1, p. 319 and 271, lays down the correct rule, and refers to authority in support of it, ‘ ‘that although a stamp be required by the revenue laws of a foreign State before a document can be received ■ in evidence there, such document may nevertheless be admitted as evidence without the stamp in the country wherein the suit is brought.” In Holman v. Johnson, 1 Cowp. 341, Lord Mansfield said, “no country takes notice of the revenue laws of another;” and James v. Catherwood, 16 Eng. Com. Law, 165, referred to by - Mr. Robinson, is a strong case in illustration of the rule.

I am of opinion, that there is no error in the decree.

The other judges concurred with FIELD, P.

Decree affirmed.  