*Abbeville.*

Heard by Chancellor Thompson.

#### Charles Goodwyn and others, *vs.*The State Bank, and others.

case iv;'.

Tiie court will dissolve an injunction on the coming in of the an-sever of some of the defendants, though all the defendants have not answered.

The court will not delay a creditor from pursuing and enforcing' fus remedies agi na-, his debtor, on the ground that some collateral sit-ourities,-which were intended as a benefit to the creditor, are entaic gled, and mcoiilro' ersy, among the debtors themselves.

The cause retained. The collateral securities to be re-assigned.

FEB’Y. 1813

The bill was filed to obtain an injunction restraining the defendants from enforcing certain judgments and mortgages, which they held against the complainants until the determination of certain questions of priority, and of the primary liability of certain parte of the securities.

In the course of the proceedings, the complainants moved to make the representatives of Galphki parties to the suit, as defendants: and an order was accordingly made to that effect. Hut the complainants wot . having procured the answers of the new defendants, moved at a subsequent court, that the cause should be postponed, and the court granted the motion ; whereupon the. counsel for the defendants, the Bank, and for Mr. Poinset, moved that the injunction which had been obtained, restraining them iVo.n proceeding to enforce their demands at law, should be dissolved: and on that motion, the *390presiding judge, rhvííííiíson, made tiio following decreta;! order, dissolving the injunction.

Gaorge Graiphin the eider, was indebted both in his private capacity and as guarantee for Galphin, Holmes , , , . and company, to liuggmson and Greenwood, meri hants* of the city of London, in the total su.n of *3,500l.*— viz. gg *fa*¡jj8 pfiviil.c capacity,-and *2,6151.*for Galphin* Holmes and company. That to secare til® payment of the said sums of money, the executors of George Gal* phhi deceased, did on the 4th June 1798, confess judgement for the said 885b and also for the said *2,6151.*$ and Thomas Galphin, co-partner of Galphin, Holmes and Go. did also confess judgment for the last named sum. — * Tóese confessions were taken in tho federal circuit courts of Georgia and South Carolina, and the better to serura tire, said debts, a mortgage of twenty-five negroes was gi ■;#*« by the said Thomas Galphin. That David Ram» say, Charles Go \1 -via and Ephraim Hams ay, on the 4th October 1796. did purchase of Thomas Galphin, executor of George GrJphln, and one „f fir1 co-partners of Galphi.-s. Holmes and company, the lands late of..tho said George Gab bin, dtceased, on both sides of Sava ninth river, containing about 13,000 acras, together with k;ids, stock, tools, *hr.*being’part of the estate bound by the said judgment and executions $ in consideration of which said jTauus&j and Goodwin did assume ami agree, to pay the said debts to Wm. Greenwood as attorney of Higginsnu and Greenwood. But as additional and thrill-.]- security, only for payment of said judgment, and nob in exoneration of them or a release of the property sc* cured thereby, David Ramsay gave his note for j¡§ 6.36S 42 *ntfí.*which was endorsed by Charles Goodwin and 32. Ramsay, and guaranteed by Wade Hampton. And all the parties gave, at the same time, their bonds to the said William Greenwood, for the sums payable at the times mentioned in complainant’s bill; and as further and additional security, the said David Ramsay mortgaged liis house and lot in Broad street, Charleston, and Charles Goodwin ami Ephraim Ramsay, mortgaged 48-liegro slaves for the same purpose.

*391"That the said William Greenwood, for valuable con-«deration and by written agreement, with' consent of all parties, on the —-day of June 1801, did assign to D. E. Poinsett, the balance due on the said note, amounting to 4 Ml. 12s. and also did assign the first bond mentioned, amounting to l,403i. 12s. on which there was then due 1,6541. 12s. together with the mortgage on David Ramsay’s house and let; under this express agreement, that if the said mortgaged house should be sold under the. morí» gage, the proceeds should first go to discharge the Bald Poinsett’s debt, and the balance, if any, to discharge the two remaining bonds then retained by the said William Greenwood; and if the 48 negroes were sold under the mortgage, the proceeds should first go to discharge the two bonds retained, and the balance to Poinsett’s debt.'

That about the 27th April 1802, the 48 negro slaves ^mortgaged were carried to the city of Charleston by the direction of the said William Greenwood, to be sold to pay the two bonds retained ; Citarles Goodwin and. I>s. John Ramsay, one of the administrators of Ephraim Ramsay deceased, together with Thomas Ogier, applied fb the bank to advance the sums due on the said two bonds. That.the bank did, on the 27th April 1802, discount on account of the parties the sum of gi 2,543 97 cts. being the amount due on the said two bonds; in Consideration of which sum the said William Greenwood, did,'on the said 27th April, assign over to the said Tilo-mas Ogier, (trustee,) the two daid bonds, with the mortgage of the 48 negroes, ami the judgments in the federal courts.

That the said Thomas Ogier wishing to decline all 'agency in the business, on the 2d of March 1803, did assign the same over to the state bank.

It further appears, that General Hampton becoming Uneasy at the great delay of payment, and the insolvency of two of the parties, did warn the bank, that unless they used all due care and proper diligence to collect their debt, he should exert himself to get released from his ‘serurityship : in consequence of which, the bank iuvne- '(] lately employed Kldred Simkins, Esq. as agent to eiv-*392force1 the mortgage, upon tice said *48*negroes, by sale, atl{* ^ICY wero accordingly advertised, and by the eon-sent of ail pai-ticn, the sale was to lake place *on*the faille of Savannah Nivcr, opposite Augusta, about the 1st day of January ; but many objections being made to the legality of time and place, it was thought, most prudon.tr to postpone the sale, until the first Monday in March, at Edgefield Court-house 3 before which time complainant obtained an injunction, which has continued in court over since.

At the last Jane term, the court made an order, that the representatives of Thomas Galphhi should be made parties to the *.suit;*but it not havmg been in the power of tire comise! for the complainant to procure, their answer, as most of them reside in the. stale of Georgia, the cause was ordered to be continued on its mero *i ;■ when*the counsel for defendants moved for a dissolution of the injunction.

For the complainant it was contended, that by an ■agreement entered into, between \Y:a. Greenwood as agent for Greenwood and Higginson, and the Silver lit.iff concern, the mortgage of the 48 negroes was to he considered as a collateral security, and could not be sold until the primary fund was exhausted, and that it having been recorded was notice to every person, and preceded all the subsequent *nogociations;*of course that it was obligatory on the bank. But upon reference to the testimony of Capt. Blake, he positively swears, he had not, nor does he believe any of the directors had, any knowledge of the existence of such an instrument. Nor \\ as it at all material in this case, whether they had or not, as it clearly appeal’s to the coiu-t, thatjiiie privity of contract, between the complainant and the bank, commenced at the time when the negroes mortgaged were carried to Charleston to be sold, when the second negotiation was effected, through the agency of Mr. Ogier. It does not appear to the court that any equity arises out of this case to justify it in ■keeping the defendants out of a just debt.

it is therefore ordered that the injunction he dissolved.

W. Tnor.irsoN,

*393From this decretal ordfcr an appeal was made# on •1jfre following grounds :

That it was essential to the merits óffhe cause’ that hhswers of the repmentatives of Thomas Galphin* (a party to the bill Since deceased) should hhVe been received before the dissolution of* the injunction 5 that by the exhibits both of complainants and defendants, thé latter were bound to assign the judgments against George Galphin’s estate, and Galphin, Holmes & Co. in terms of the agreements between Higginson, survivor of Higgin-son & Greenwood, and Ramsay, Goodwin & Ramsay, and the assignment of Higginson, survivor as aforesaid, by W. Greenwood, jun. their attorney, and the said Wra. Greenwood, jun. in bis own right, to Thomas Ogier, and bis assignment to the defendants; or to make good and sufficient titles to the said Silverlduff *estate;*and that the decree was Contrary to, the equity of the case.

Goodwin, solicitor.

The appeal was argued, whereupon the Court .delivered the following judgment:

Wo are of opinion that the decree of th'c Circuit Court in this case was correct in dissolving the injunc-Ron as to the State Bank and Mr. Poinsbt. The Bank made a loan, and took.various securities for the re-payment thereof. Among others arc assignments of certain judgments against Galphin’s estate, and mortgages of negroes, and a house and lot in Charleston. Since all the circumstances have been disclosed by the answer and documents, it would be extraordinary and Unjust, that the multiplication of securities, which was intended as an inducement to the loan by-the Bank, should be converted into a source of delay in the recovery of the debt, and should be used to involve the bank in a litigation respecting the Galphin property, in Which it has rio concern or,.interest. It appears obvious, that the mortgages were taken as an additional security, and it was intended that the Bank should be at liberty to resort to any of the securities, to enforce payment.

It is therefore ordered and adjudged, that the de-. Cree of the Circuit Court be affirmed, and that the State *394Bank and Joel II. Poinset, son and heir of Elisha Poinset, be left al liberty to pursue their claims, and enforce their remedy. But as the bank and J. II. Poinset will have no right to retain any part of the securities assigned to them after payment of the sums due to them, it is further ordered and adjudged that upon the payment of the whole sums due to the Bank and Me. Poinset, by Charles Goodwin, the representative of Ephraim Ramsay, and JDr. David Ramsay, the Bank and J. R. Poinset, instanter, and by a contemporaneous act, re-assign to them all the securities which had been placed in their hands for the purpose of securing tho debts due them.

Bacon and Goodwin, for appellants.

Simkins for respondents.

W. James,

(Signed) Hehry W. Besaussuhiv,

Theodoee Gaimaiíu,

Thomas Watibs*