notes, or in any degree enhance their dignity as securities JANUARY 1830. for money; they cannot be any thing else than promis- Lucas sory notes, and open to any available exception that may be urged against that species of security.

V.

Bk. of Darien.

375.

The proposition that a partner cannot bind his copartner by seal, cannot be carried to every supposable case in which a seal is used. In Salmon v. Davis, it is held 44 Binney, that a partner may, by writing under seal, release a debt due to the partnership. The principle of that decision is, that the discharge would be equally valid without the use of a seal. In Buchanan v. Curry, it is to the same 19 John, 137. effect. And as the power under seal does not give a right to do an act of a character more obligatory than it would, if divested of that solemnity, the cases just referred to, are in point in principle.

It is argued by the appellant that as John Lucas, who was a director of the branch bank at Milledgeville, was advised of the dissolution of the partnership of J. & W. Lucas, the bank itself had constructive notice of that fact. I am unprepared to accord to this argument any weight. It is unreasonable to suppose that he made any disclosure to the directory which would have rendered his applications for discounts unavailing. Besides, to give the argument any degree of plausibility, we must suppose that as a director, he passed upon his own applications; natural justice, sustained by that delicacy common to the human family, forbids such an idea. With regard to his solicitations for loans, his attitude in relation to the bank was changed, he was a borrower and not a lender, and as he was passive, it was unreasonable that the directors who gave him accommodation should be affected by a constructive notice of any fact which he individually possessed.

If an agent acquire a knowledge of a fact while not in the discharge of his duties as such, but when engaged in other business, his principal cannot be presumed to have that knowledge; d and were it otherwise, the doctrine would be mischievous, for then it would be most dangerous to employ counsel of the most practice and greatest eminence. Let this exception be applied. Did John Lucas learn the dissolution of the partnership of J. & W. Lucas as a director of the branch bank? If their connection was really dissolved, he became apprized of it in his individual capacity; consequently his principal did not become affected by notice to him.

c 19 John. 537.

d3 Atk. 294.

Ib. 392, 650.

2 Atk. 242.

JANUARY 1830.

Lucas

V.

gency, 203.

Again: so far as I have been able to gather from author ity the reason of presumptive notice, I am of opinion that it is never implied where he who had actual notice, had Bk. of Darien. no right to act in regard to the subject to which it relates. a If in this idea I be correct, it follows that a notice of the dissolution of the firm to any number of the a Paley on A- directors, less than a majority of those acting, would not affect the bank; because a minority could not controul its operations. This argument does not conflict with the rule that a notice to one partner is a notice to the partnership, for the reason that each of the partners may conduct the partnership business without the positive consent of the others, but the reason of the rule in that case does not apply to a corporation aggregate, as is obvious from the dissimilarity of the relationship of the individual corporators.

As another ground for the interposition of equity, the appellant insists upon the payments made by William D. Lucas, and his release from further liability on the notes to which he is a party. It does not appear from the bill whether the payments were made before or after the recovery of the judgments by the Bank against J. & W. Lucas; and if previous, whether the appellant has not been allowed credit therefor. If they were made since, he may plead them, and be allowed all benefit at law. If he cannot shew the fact of payments, and the amount paid, by legal testimony, he can compel a discovery from the bank, in aid of the trial at law. In respect to the release, this cannot prejudice the appellant's rights. Though William D. Lucas appears to be the maker of some of the notes, and an indorser on others prior to the appellant, yet the appellant alleges that the proceeds were received by John Lucas. Thus it appears that the name of William D. Lucas was lent to J. & W. Lucas, to enable them to draw money from the Bank; and he could not be liable to them as the maker or prior indorser of some of the notes, because there would be wanting a consideration to support a promise. The relcase, therefore, of W. D. Lucas, does not entitle the appellant to a hearing in equity.

What I have said in regard to the payments by W. D. Lucas, is applicable to the payments by A. R. S. Hunter. The judgments cannot be avoided in equity as to the appellant because they were taken against J. & W. Lucas, after the death of John Lucas. The objection, if it be

Lucas

V

available, is too technical for equity to notice; but should JANUARY 1830. be pursued in the Court that rendered the judgments. With respect to the arrangement between the branch bank and J. Lucas, for an extension of the time of pay- Bk. of Darien. ment of the notes described in the appellant's bill, and the giving of a new note for the aggregate amount, that circumstance cannot in my judgment warrant the interference of equity. If the Court in Georgia had jurisdiction of the person of the appellant, the judgments are valid, and I have already shewn that in my opinion it was competent for his co-partner to give it, though he may not have had actual notice of the pendency of the suits, yet he must nevertheless be bound by the judgments as having a constructive notice through the agent of J. & W. Lucas, or his partner John Lucas, who pro re nata was his agent; and could it have availed the appellant, he should have shewn on the trial in Georgia, that a new note was given. Besides it would not be compatible with the principles of equity to give the appellant a hearing for this cause, unless he first pays, or shews a readiness to pay the consolidated note. If it be outstanding, he can prima facie sustain no injury. The Court will presume the common law to prevail in Georgia, and consequently, that the bank cannot make any transfer which will prejudice the legal rights of the appellant. But if the appellant deemed it necessary for his indemnity, he could obtain a decree to have the note delivered up to be cancelled, and perhaps under some circumstances equity might injoin a judgment until this was done, but that Court would never arrest a trial at law for this cause. If the judgments are void, the appellant cannot be heard in equity as already shewn, because the defence is properly at law.

Having examined the material points presented by the bill, I proceed to consider several propositions which were laid down in argument.

It is insisted by the counsel for the appellant, that as the appellee has submitted to answer the appellant's bill, the answer should fully respond to its allegations. This is doubtless a good general rule, but subject to many exceptions; thus if a bill was exhibited alleging an equitable title in the complainant, and praying a discovery of profits, if in his answer the defendant was to deny the title, he need not answer as to the profits, or if to a bill charging a partnership and asking a discovery of accounts, the defendant was to deny the partnership, he need not disclose

Lucas

V.

JANUARY 1830. the state of accounts; were it otherwise, the wealth and dealing of every commercial house in the country could be ascertained. So I understand if a bill wants equity, an exBk. of Darien. ception to the answer for insufficiency, would not be allowed to any answer that the defendant might make. In determining upon the sufficiency of an answer, the Court must be guided by the equity of the bill, and not by its formal allegations. Why to such a bill require a full answer? Such a requisition would be ineffectual, and one from which no benefit could result to the complainant, as the Court could not render a decree in his favor. This rule has been so fully considered in New York, that without remarking further upon it, I refer to the cases cited to sustain the view which I have taken. a

a 1 John. Ch.

R. 65. 4 John. Ch. R. 205, & the English decisions

there review

ed by the Chancellor.

1 P. Wms. 593. 2 John. Ch. Rep. 245.

With respect to the plea of "former recovery," pleaded to the actions brought on the notes in Montgomery, it cannot have any influence upon the defence now attempted to be made to the actions upon the judgments. That plea only tendered an issue upon the fact of the recovery, and not its legality; the apparent regularity of the judgments, and nothing more. The replication to that plea was nul tiel record, which limited the inquiry of the Court to the disclosures made by the record. If a plea in one cause be evidence in another between the same parties as an admission of a fact, a question which need not here be determined, it can only be taken as proof of the extent of its allegations, or of the legitimate inferences therefrom. It does not necessarily follow, that because judgments were recovered by the bank of Darien, against the appellant, that therefore, the appellant was amenable to the jurisdiction of the Court that rendered the judgments. On the issue of nul tiel record, nothing need or can be inferred, but what the record discloses.

It is insisted by the counsel for the appellee, that the decree of the Court below should be affirmed, because the bank is not made a party to the suit. The bill recites the pendency of the suit at law in favor of the bank of Darien against the appellant, and prays that the bank may be injoined from its further prosecution, and that a subpœna ad respondendum may issue to the branch. It is a rule well ascertained, that none are defendants, but they against whom process is prayed. This is certainly a convenient rule, and it seems to me the only safe one by which, in many cases, it can be determined who are defendants. The "act to regulate proceedings in chancery suits," passed

V.

1st January, 1823, it is conceived, has no influence upon JANUARY 1830. the question. The first section of that act requires the Lucas clerk to issue a subpoena, with a copy of the bill, to the defendant, without furnishing any data by which we can Bk.of Darien, know who is the defendant, leaving that to be determined as before.

It is a general rule that all persons interested, should be made parties to a suit in chancery. This is, however, said to be a rule adopted for convenience, and may be dispensed with when extremely difficult or inconvenient to be adhered to. The principle upon which it is founded, is the solicitude of that tribunal to prevent litigation; by making its decrees operate efficiently upon all whose interests are involved, which can only be done by bringing them directly before the Court, that they may have an opportunity of defending their rights. The difficulty or inconvenience of making one a party, must be suggested by the bill, that it may be inquired into. In this case we are not informed why the bank of Darien was not made a defendant. According to the English practice, a locality beyond the jurisdiction of the Court would, in some instances, be a sufficient reason for not making a person in interest a party to the bill. But in this case the appellant cannot claim the benefit of this exception. Where is the greater difficulty in eliciting from the bank an answer to his bill, than from one of its branches? Both are located within the limits of another sovereignty, so that process of subpoena could not be executed on their officers. The same course must have been taken to have obtained the answer of either, and consequently, the argument of difficulty or inconvenience has no just foundation.

Without further considering exceptions to the general rule, I am of opinion that the rule itself may be so particularized as to become universal in its application. By requiring all persons interested in the matter involved in the issue, and necessarily to be affected by the decree, to be brought before the Court, the rights of all parties could be adjusted, and a complete definitive decree made upon the matters in question. Let us inquire whether the rule as thus particularized, embraces the case we are considering. The bank of Darien is the plaintiff at law, and the bill of the appellant is exhibited with the view of defending himself against its actions: the bank then is an essential party,