# Atkins v. Dick

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United States Supreme Court
39 U.S. 114
Atkins v. Dick
APPEAL from the Circuit Court of the United States for the Southern District of Mississippi.
On the 24th June, 1834, Cain and Lusk, merchants of Alabama, drew a bill of exchange for two thousand four hundred and five dollars, on Martin Pleasants and Company, of New Orleans, in favour of the appellant, James Atkins. This bill was endorsed by James Atkins to Parham N. Booker, and was afterwards endorsed to N. and J. Dick and Company, the appellees. The bill was protested, and the appellees brought a suit against James Atkins, in the Circuit Court of the United States for the District of Mississippi, to May term, 1838, and recovered a judgment for thirty-two hundred and twenty-five dollars.
Execution was issued on the judgment, and a levy was made on the property of James Atkins; who, in redemption of the same, gave a forthcoming bond, with sureties, for the delivery of the property to the marshal on the day of sale. The property not having been delivered according to the provisions of the bond, the marshal returned the bond as forfeited; whereby, according to the laws of the state of Mississippi, it became, in force and effect, a judgment against the obligor and his sureties.
The appellant, in order to stay execution on the bond against himself, and the sureties, filed a bill on the equity side of the Court, and obtained an injunction against the obligors in the bond.
The bill states, that since the giving of the forthcoming bond by the appellant, and his sureties, he has ascertained, and does verily believe, that N. and J. Dick and Company had been paid the money mentioned in the bill of exchange, before the institution of the suit on the same; but that he had no knowledge of this on the giving of the forthcoming bond and its forfeiture; that he is advised, and believes, that the bill of exchange was paid to N. and J. Dick and Company, by Parham N. Booker, before the action was brought against him on the bill; and that the same was paid because of effects placed in the hands of Booker, by Lusk, one of the drawers of the bill. That he is advised and believes that he would have had a good and meritorious defence against Booker, on account of the effects placed in the hands of Booker by Lusk, had Booker brought an action against him in his own name; and he charges that the names of N. and J. Dick and Company have been used to defeat him in such a defence.
The defendant, the appellees demurred to the bill, and alleged the following causes of demurrer:
1. It is alleged in the bill as a substantive, and the original ground for injunction of the statutory judgment therein named, that one Parham N. Booker, is the actual, and not the nominal plaintiff in said judgment; that as endorser of the bill of exchange, (the basis of the judgment,) next after the complainant as the first endorser, having paid the amount of the bill to the holders, received certain effects of the drawers, whose amount ought to be credited to complainant; and yet the said Booker is not impleaded as a defendant.
2. Nor is the amount, or value, or nature of the effects, so charged to have been paid to the second endorser, specified in said bill; nor what part or portion was discharged, or whether any of such effects proved productive.
3. The said bill contains no matter or grounds whereon the Court can grant the relief prayed therein.
The Court ordered, adjudged, and decreed that the demurrer to the bill be sustained, and that the complainant have leave to amend his bill. It was further ordered, adjudged, and decreed, that the injunction be dissolved: and the complainant in the bill declined making any amendment to the bill, and put the cause down for a further hearing upon the bill and demurrer: and, after argument heard, it appearing to the satisfaction of the Court, that Parham N. Booker was materially interested in the issue of said cause, and that the said Booker had not been made a party to the same, it was, therefore, ordered, adjudged, and decreed, that the said bill be dismissed for want of proper parties to the same, &c.
The case was argued by Mr. Cocke, for the appellants; and by Mr. Crittenden, for the appellees.
For the appellants, it was contended,
1. That this being an injunction bill, and Booker being no party to the proceedings at law, he was not a necessary or proper party to the injunction bill.
2. That the fraud charged should have been denied by answer; and that the Court below in sustaining the demurrer and dimissing the bill, was guilty of manifest error.
3. That Booker's rights and remedies, whatever they may be, are separate and independent, and purely legal.
4. On sustaining the demurrer, the injunction ought not to have been dissolved; but leave given to bring the other parties before the Court.
Mr. Cocke stated, that he was aware, that it is a rule in equity, that all persons materially interested in a suit ought to be made parties. But the Court will always look to the object of the suit in determining the question of the necessary parties to it. Law Library, vol. 49, pages 6, 7.
It is no part of the object of this bill to affect the liability of Atkins to Booker, on Atkins' endorsement to him. Booker's rights and remedies would remain unaffected by a decree of perpetual injunction of N. and J. Dick and Company.
On the subject of the rule of proper parties to a bill, a Court of Equity will not suffer it to be applied to defeat the purposes of justice; if the case can be disposed of without prejudice to the rights or interests of persons who are not made parties. A Court of Equity will not require persons to be made parties, where the circumstances of the case do not warrant it. Story's Equity Pleading, 78, and the authorities there stated.
This is not an original bill. In an injunction suit, no objection can be taken on the ground that absent persons are not made parties. Law Library, vol. 49, page 53.
Whatever rights Booker may have either at law or in equity, are predicated from the liabilities of Atkins to Booker, on Atkins' endorsement to him. Each endorsement is in the nature of a new bill. It constitutes a paramount, separate, distinct, and independent contract. Intermediate endorsers, or endorsees, are not necessary parties in equity: their remedies are on the bills of exchange, or promissory notes, and at law. Law Library, vol. 50, page 151. Ward vs. Vanbokklen, 2 Paige's Rep. 289. M'Carty vs. Graham, 2 Simmons' Rep. 285. 2 Atkins' Rep. 235.
The merits of the case between Atkins and N. and J. Dick and Company, can be determined without affecting the interest of Booker; and it is the duty of the Court to decree between the parties before them. Russell vs. Clark's executor, 7 Cranch, 69. Booker's rights could not be affected by the decree of perpetual injunction against N. and J. Dick and Company. Wendel vs. Van Rensselaer, 1 Johns. C. R. 437. 7 Conn. Rep. 437. Jay vs. Wirtz, 1 Wash. C. C. Rep. 517. He was not named as a party defendant, nor was process prayed against him, or his interest to be affected. He was, therefore, no proper party. Verplank vs. The Mercantile Insurance Company, 2 Paige's Rep. 438. The Executors of Brasher vs. Van Courtlandt, 2 Johns. C. R. 245. Lucas vs. The Bank of Darien, 2 Stew. Alabama Rep. 280. Lyle vs. Bradford, 7 Monroe Rep. 113. There was nothing demanded of Booker, and therefore, he should not be made a party. Kerr vs. Watts, 6 Wheat. Rep. 550.
Had Booker been made a party in equity, he could have claimed that he was not a party in the suit at law. That his rights were purely legal, distinct, separate, and independent, confined alone to Atkins' endorsement to him, and have claimed to be restored to his remedy at law; and it would have been allowed to him. 2 Story's Equity Pleading, p. 172, sec. 885; p. 173, sec. 887. Marine Insurance Company vs. Hodgson, 7 Cranch, 336.
If the suit at law of N. and J. Dick and Company against Atkins, was really for the use of Booker, his name should have been placed on the record as the cestui que use; by concealing his connection with the suit, he has no right to shift the onus probandi as to the matters in litigation, or to have the advantages which his situation, as a defendant in Chancery would give him. This would be a fraud on Atkins' defence against Booker, at law. Courts of Equity would never allow the success of such a fraud. The demurrer is in bad grace; and it may be worthy of inquiry, upon what principles do N. and J. Dick and Company demur? It would be against conscience to execute a judgment at law, thus situated. Marine Insurance Company vs. Hodgson, 7 Cranch, 332.
The fact is, Booker can only be used in the injunction case, as a witness. Fenton vs. Hughes, 7 Vesey, Jr. Rep. 287. 1 S.C.. Rep. 73, 74.
The bill insinuates that Booker is the instigator, and it may be that he may be an unwilling witness; but Atkins is entitled to the answer of N. and J. Dick and Company, and the testimony of Booker.
If it be true, as charged, that the bill of exchange has in fact been paid; it matters not by whom or how; the right of N. and J. Dick and Company to have an action again for the money, was gone both at law and in equity. They have no right to be paid twice. If they could have no action for themselves, it is difficult to perceive upon what principle they could have an action for another. By the payment of the bill of exchange, it was cancelled by law.
It is time enough for Atkins to litigate his rights with Booker, both at law and in equity, when Booker shall sue Atkins on Atkins' endorsement to Booker.
It is therefore claimed, that the decree of the Court below should be reversed; the demurrer be overruled; and leave granted to N. and J. Dick and Company to answer the bill.
Mr. Crittenden, for the appellees, contended, that the bill of the appellants was properly dismissed by the Circuit Court, for want of proper parties, and for want of equity.
The Circuit Court allowed the complainant to add proper parties; but this he refused, and went on, notwithstanding this permission. According to the allegations of the bill, not only Parham N. Booker, but all the sureties in the forthcoming bond, given to the marshal, should have been made parties to the suit, according to their interest in relation to the matters alleged in it; and in order to enable the Court to settle at once the whole controversy. McIntire vs. Hughes, 4 Bibb, 187. 3 Monroe, 398. 4 Monroe, 386. 3 J. J. Marshall, 44. Macey & Co. vs. Brooks, 4 Bibb, 238. Turner vs. Cox, 5 Litt. Rep. 175. Cummins vs. Boyle, 1 J. J. Marshall, 481.
The whole equity asserted by the appellants, grows out of the acts of others than those of N. and J. Dick and Company. It is alleged that Booker is now prosecuting the suit on the bill of exchange, in the name of N. and J. Dick and Company; and yet he is not made a party.
The assignor of a judgment, when a bill is filed against the parties to the judgment, must be made parties to the bill. The proceeding here is against an alleged nominal party; and yet the real party is not allowed an opportunity to be heard. If the appellant is successful in this proceeding, Booker will not be prevented suing on the bill of exchange, if he gets possession of it. Thus the controversy between the parties to the bill of exchange will not be settled by the present proceedings.
Mr. Justice BARBOUR delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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