
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    Harman, Indorsee, v. Frederick Counts.
    The judges, in the exercise of their authority in the summary jurisdiction of the Circuit Courts, if they proceed according to equity, it must be in those cases only where there is equitable matter to give the court equitable jurisdiction, not where there is adequate relief of law.
    The assignee of a non-negotiable promissory note of hand, cannot maintain an action thereon as indorsee, even by petition and summary-process. And, in such case, where the plaintiff had a decree, it was, on motion, set aside.
    Motion to sot aside a decree, given by Bay, J., in Newberry District Court, and for leave to enter a judgment of nonsuit. The petition and process was brought to recover damages for a breach of promise, on a non-negotiable note of hand, in the name of the plaintiff as indorsee.
    
    Cronshaw, for the defendant,
    contended, that prior to the act of assembly of 1798, (See 2 vol. Faust’s Collec. 214,) notes, not negotiable, were neither indorsable, nor assignable, so as that the as-signee, or indorsee, could maintain an action thereon in his own name. That that act, being an innovation on the-common law, ought to be strictly construed ; and, therefore, though the assignee of such a note, may bring and maintain an action thereon in his own name, “ styling himself assignee,” according to the express direction of the act; yet he cannot maintain an action, styling himself indorsee.
    
    Starke, on the contrary,
    contended, that an indorsement ope. rates as an assignment, that suing, as indorsee, is a substantial compliance with the act; and that, at all events, as justice had been done by the decree, it would not be set aside. Cited, 3 Burr. 1603. 5 Burr. 2832. 1 Bac. Abr. 249. 4 D. and E. Master v. Miller. The court, exercising an equitable jurisdiction, might disregard the technical rules of law.
   Per curiam.

Nott, J.,

delivered the opinion. The distinction has been long settled between negotiable and non-negotiable in. struments. This distinction is a matter of substance, and not of mere form. The act must be conformed to, if any other than the original payee sues on a non-negotiable instrument in his own name. If he does not bring himself strictly within the act, he must proceed as at common law.

As to what has been urged on the ground of equity, it is sufficient to say, that, taking it for granted that the District Court, in the exercise of its summary jurisdiction, on petition and process, may decide according to the rules which prevail in Courts of Equity, ' yet it will not follow that this decree ought to stand. A Court of Equity would not be authorised to disregard the directions of an act of assembly, and change the law. Equity ought to follow the law, and not proceed in contradiction to the law. Besides, to give a Court of Equity jurisdiction, there must be some equitable matter brought into, the view of the court. • No equitable matter existed in this case. The plaintiff had a complete and adequate legal remedy, which he did not think proper to pursue. As to doing arbitrary justice, or deciding according to the equity of this particular case, or any other, it is a rule of conduct which ought not to govern any court. It is dangerous and mischievous. How is it known that justice h.as been done in this case. Possibly the defendant, relying on his legal technical defence, which is clearly sufficient, took no pains to bring any other defence to the view of the court, although he may have had other sufficient legal and equitable grounds of de-fence.

Waties, J.,

dissenting, said, the action was incorrectly brought; but the objection was formal, and not substantial. The defendant had had every benefit and advantage on the trial, as though the ac. tion had been rightfully brought. Justice has been done. Why turn the plaintiff round to bring another action, when it is clear, that, eventually, the same justice will take place ? What mischief will arise from rejecting the present application ? It will not establish a precedent.

Motion granted.  