Bater and others es. Durham.

The ostensible purpose of the bill is, to compel the notes as having been paid, to be delivered up.

It is very clear that a discovery is not sought in aid of the common law defence, which the bill alleges to have been filed to the suit pending against the complainants.

The bill praying relief, and omitting to make the averment that without a resort to the conscience of defendant they cannot sustain the defence filed, in some material fact, establishes the position, that this is not a bill for discovery only, and in aid of a proceeding at law.

It is an original bill, seeking discovery and relief far beyond the exigency of the case made by them.

It seeks to withdraw entirely questions in litigation, from a tribunal having jurisdiction over them, and asks their examination and decision in a new forum.

First. The bill seeks a discovery, whether the trunk of Thomas J. Perryman, containing the notes sued on, and others, was not delivered over to defendant to secure and indemnify him, and Nash one of complainants, against liability as securities on the administration bond of said Perryman.

Whether defendant has not collected and realised all that has been collected therefrom; and whether he has not sold lands of Perryman, and does not now hold good notes more than sufficient to indemnify him for disbursements for Perryman.

What legal connexion can there be between the issue made by plaintiffs of payment to Perryman of the notes sued on, and whether they and others were delivered over as indemnities?

What between the issue, and whether defendant had received from the sale of lands of Perryman good notes more than sufficient to indemnify him as Perryman's security?

The discovery sought is beyond the case made. Butler and Nelson-have no interest in ascertaining what are the facts involved in the general transaction between Perryman and Durham. They have no right to an account, as they have shown no interest in its being made. If made, it could afford no basis for a decree in their behalf; it can in no wise, nor in any tribunal, aid their defence.

Nor can Nash, who alleges an interest in the indemnities, have it in company with Butler and Nelson. He cannot, at his mere caprice, subrogate them to all his rights; he cannot confer upon

Butler and others vs. Durham.

them the right to litigate, through a joint and entire proceeding, a matter which is separate and distinct, and exclusively under his control.

He cannot have one decree upon this bill and they another. For if it were so, it would follow that a judgment would be divisible so as to admit of separate executions.

Second. If complainants are not entitled to the discovery, they cannot be to the relief which such discovery would authorize.

Third. The bill seeks to change the forum of litigation. The comity of courts of concurrent jurisdiction is so exerted as to avoid jealousy and prevent collision.

A court of equity will carefully look into a case before it takes jurisdiction. It requires to be satisfied that at law the remedy of a party is inadequate, ineffectual and imperfect. It allows itself to form no judgment but on the case made in the bill, and beyond it it will presume nothing.

It is the right of a party in some cases to go where he can be relieved, but he must go in a proper manner, and at a seasonable

moment.

Let us see if the facts involved in the case of plaintiff are capable of determination in a court of law.

A court of law can determine, that as the notes are without words of negotiability, they cannot pass the legal property by a mere delivery.

It can determine that as the notes were past due when they came to Durham's hands, they were open to all defences to which they could have been had they remained in Perryman's posses

sion.

It can determine the questions of payment and set-off under the facts alleged in Durham's hands.

Indeed by looking to the transcript it will be apparent that all these abstracts are imaginary; for Thomas J. Perryman is the legal plaintiff on the record below.

It is difficult to perceive, as the defences at law are complete in reference to all the notes, why a bill has been resorted to, unless as "fishing" for a discovery to aid Nash in some meditated proceeding.

By the Court-NISBET, J. delivering the opinion.

The demurrer to this bill was sustained by the Court below upon several grounds. The two relied upon as erroneous before

Butler and others vs. Durham.

this Court are multifariousness, and generally a want of equity in the complainants' case. Treating of the first named first, I shall advert afterwards to the second, with such particularity as will be sufficiently explanatory of it.

[1.] I do not believe that this bill is multifarious, and such is the judgment of this Court. It charges that one Thomas J. Perryman became administrator upon the estate of one James R. Lowrey, deceased, and that the defendant, Hardy Durham, and one of the complainants Reuben A. Nash, became his sureties; that at the sale of the property of that estate one of the complainants, Butler, became a purchaser, and made his fifteen several promissory notes, payable to Thomas J. Perryman, administrator, for thirty dollars each, with said Reuben A. Nash and William Nelson, the intestate of the complainant Hammock, securities; that Perryman absconded, and after leaving the State, by letter addressed to his family directed a trunk containing papers relating to his transactions on said estate, to be delivered to the defendant, Hardy Durham, and the complainant Nash, for the purpose of indemnifying them as his sureties on the administration bond; that said trunk, containing the fifteen notes before mentioned, and also other securities, was not delivered to Durham until after these notes fell due; that the trunk was delivered alone to Durham, and he alone had the control of the papers which it contained; that the fifteen promissory notes were paid off before they came into the possession of Durham, and that from the collection of other notes and securities thus transferred to him, as also from the sale of certain -lands conveyed to him by Perryman for the like purpose of indemnity, he, Durham, had been fully indemnified for all advances or losses made or sustained for and on account of his suretyship. The bill further charges, that the fifteen promissory notes were put in suit in the Superior Court of the County of Twiggs, by Durham; that this suit was non-suited or discontinued, and suits then instituted upon them in a magistrate's court, upon the trial of which suits, the plea of payment being filed was fully proven, and that thereupon they were dismissed; that afterwards suit was again instituted in the Superior Court of the County of Twiggs upon the same notes, which was pending at the time the bill was filed. The bill further charges, that Butler, the maker of the notes, had loaned a sum of money to Perryman and held his due bill for it. The complainants ask a discovery as to these facts, and particularly require of Durham to exhibit a statement of the amount realised by him

Butler and others vs. Durham.

from the securities transferred to him, other than the fifteen promissory notes, and from the sale of lands conveyed to him by Perryman for his indemnity as surety on the administration bond; and that he answer whether from these sources, independent of the fifteen promissory notes, he had not been fully indemnified. The complainants pray specifically that these notes be delivered up to be cancelled, and that the pending suit upon them be perpetually enjoined; and add the usual prayer for general relief.

The question first to be considered is, was this bill demurra- [2.1 ble for multifariousness? A bill is multifarious when it contains separate and distinct matters alleged by one plaintiff against the same defendant, or by the same plaintiff against several defendants, requiring distinct relief; or by several plaintiffs against one defendant, requiring separate relief against him. 1 Daniell Eq. Prac. 437, 450; Story Eq. Plead. 2d ed. 225; 3 Mylne & Craig R. 85.

If this bill falls within either of these classes it is the last. It is argued that it contains separate and distinct matter because it contains averments in relation to the fifteen promissory notes, such as, that they have been paid, that they have been proven to have been paid, and that three several suits have been instituted upon them at law: upon which a decree in favour of all the complainants is prayed, of delivery and cancellation of the notes, and perpetual injunction of the pending suit. And at the same time averments, that Nash, one of the complainants, and Durham the defendant, are co-sureties for Perryman upon his administration bond, that the papers delivered by Perryman to Durham were intended to indemnify them both for losses or advances on account of their suretyship; that Durham received money upon the securities and also from the sale of land, sufficient to cover all his losses, irrespective of the fifteen notes, upon which Durham is asked to account with Nash touching their co-suretyship; and that a decree be rendered against him that he deliver the fifteen notes to Nash. If these statements and prayers were all in the bill, it would be multifarious; some of them are in it and others are inferences of counsel. Durham is not asked to account with Nash, nor is any decree of any kind prayed against him in favour of Nash singly. The specific object of the bill is the delivery and cancellation of the notes and the injunction of the suit. This object is sought equally by all the complainants; it is common to them all; they are all bound on the notes and need the same relief. They seek no benefit from the bill except to be protected

Butler and others vs. Durham.

this Court are multifariousness, and generally a want of equity in the complainants' case. Treating of the first named first, I shall advert afterwards to the second, with such particularity as will be sufficiently explanatory of it.

[1.] I do not believe that this bill is multifarious, and such is the judgment of this Court. It charges that one Thomas J. Perryman became administrator upon the estate of one James R. Lowrey, deceased, and that the defendant, Hardy Durham, and one of the complainants Reuben A. Nash, became his sureties; that at the sale of the property of that estate one of the complainants, Butler, became a purchaser, and made his fifteen several promissory notes, payable to Thomas J. Perryman, administrator, for thirty dollars each, with said Reuben A. Nash and William Nelson, the intes tate of the complainant Hammock, securities; that Perryman absconded, and after leaving the State, by letter addressed to his family directed a trunk containing papers relating to his transactions on said estate, to be delivered to the defendant, Hardy Durham, and the complainant Nash, for the purpose of indemnifying them as his sureties on the administration bond; that said trunk, containing the fifteen notes before mentioned, and also other securities, was not delivered to Durham until after these notes fell due; that the trunk was delivered alone to Durham, and he alone had the control of the papers which it contained; that the fifteen promissory notes were paid off before they came into the possession of Durham, and that from the collection of other notes and securities thus transferred to him, as also from the sale of certain lands conveyed to him by Perryman for the like purpose of indemnity, he, Durham, had been fully indemnified for all advances or losses made or sustained for and on account of his suretyship. The bill further charges, that the fifteen promissory notes were put in suit in the Superior Court of the County of Twiggs, by Durham; that this suit was non-suited or discontinued, and suits then instituted upon them in a magistrate's court, upon the trial of which suits, the plea of payment being filed was fully proven, and that thereupon they were dismissed; that afterwards suit was again instituted in the Superior Court of the County of Twiggs upon the same notes, which was pending at the time the bill was filed. The bill further charges, that Butler, the maker of the notes, had loaned a sum of money to Perryman and held his due bill for it. The complainants ask a discovery as to these facts, and particularly require of Durham to exhibit a statement of the amount realised by him