Hinkle v. Wanzer. 17 H. The decree of the court below is therefore reversed, and the record remitted, with directions to dismiss the bill of complaint, with costs, but without prejudice to any legal defence. M'Lean, J., and Nelson, J., dissented. NELSON, J. I do not agree to the judgment of the court in this case. I think the damages allowed against the complainants, by the arbitrators, are so extravagant, disproportioned, and gross, as to afford evidence of passion and prejudice, and justified the judgment of the court below, in setting aside the award. It is difficult, if not impossible, to see, upon any other ground, how between four and five thousand dollars should have been allowed against one of the firms in the submission, and but some one thousand dollars against the other, under the circumstances of the case. 18 H. 246. MORGAN B. HINKLE, in his own Right, and as Administrator de bonis non of JOHN FISHER, deceased, Complainant and Appellant, v. MOSES WANZER, JAMES F. JOHNSON, and JOHN S. HUNTer. 17 H. 353. When a debtor deposited with an attorney certain notes as security for claims against him, then in the attorney's hands, and subsequently gave verbal directions to the attorney to protect another creditor out of any balance which might remain, and the attorney gave to this last-mentioned creditor the control of a judgment recovered on one of the notes; held, that the creditor acquired an equitable interest in the judgment, by the direction of the debtor to the attorney, and the action of the latter thereon. APPEAL from the circuit court of the United States for the southern district of Alabama. The case is stated in the opinion of the court. Phillips, for the appellant. Reverdy Johnson, and Reverdy Johnson, Jr., contrà. [* 358 ] * DANIEL, J., delivered the opinion of the court. The appellant, by his bill in the circuit court, alleged: That, on the 17th day of April, 1837, John Fisher and James F. Johnson, of the mercantile firm of Fisher and Johnson, were the holders and owners of a promissory note, made by Thomas Long, George D. Fisher, and the appellant, Hinkle, bearing date on the 19th of December, 1836, for the sun of $1,520, payable twelve months from the date of said note, to William Ryan, surviving partner of the firm of Porter and Ryan, and which had been transferred, by indorsement, from Ryan to Fisher and Johnson; that this note was, by Hinkle v. Wanzer. 17 H. Fisher and Johnson on the 17th of April, 1837, together with various other notes, placed in the hands of Messrs. Gordon, Campbell, and Chandler, attorneys, for collection, as appears by the receipt of these persons, filed as an exhibit with the bill, and marked A. That, about the 17th of April, 1837, James F. Johnson, for valuable consideration, sold and assigned all his interest in the note above mentioned, and in the firm of Fisher and Johnson, to his partner, John Fisher. That John Fisher having departed this life in 1838, administration of his estate was duly committed to his widow, and to his brother, William P. Fisher, who, having afterwards surrendered their rights and powers, as representatives of the estate of John Fisher, administration de bonis non of that estate was, on the 3d of December, 1839, duly committed to the complainant, who makes profert of the letters of administration granted to him. That Messrs. Gordon, Campbell, and Chandler, the [* 359 ] attorneys with whom the note had been deposited, instituted a suit thereon, in the name of Moses Wanzer, as plaintiff against the makers of that note, in the circuit court of the United States for the southern district of Alabama, and, on the 11th day of April, 1839, recovered a judgment against Thomas Long and the appellant, in the name of Wanzer, for the sum of $1,691, in damages and costs of suit. That, after the rendition of the said judgment, the appellant was informed by Wanzer that Fisher and Johnson, or Fisher, had owed him a small sum of money, which had been fully paid off, and that he did not know why suits had been brought in his name on the said note, and on other notes mentioned in the receipt of the said attorneys; and, at the same time, further stated that he had no right, and did not pretend to have any right or interest whatsoever, in the judgment recovered in his name. That Hunter claims a right to this judgment, upon what precise authority the appellant does not know, as he has never heard, and does not believe, that it has been ever transferred or assigned to him by Wanzer; but, on the contrary, believes and alleges that any such ⚫ transfer or assignment by Wanzer has never been made. That Hunter, as the appellant has been informed and believes, was bound as surety or indorser for Fisher and Johnson, or Fisher; but in what manner, or for what amount, if so bound, the appellant is not informed; that he does not know whether the said Hunter has paid out of his own funds any money as surety or indorser, either for Fisher or Fisher and Johnson, but, to the best of his knowledge and belief, Hunter has not paid from his own funds any money, as Hinkle v. Wanzer. 17 H. surety or indorser for either, or, if he has, such payment has been fully reimbursed to him. That, for a large portion, if not for the whole liability of said Hunter for Fisher, or Fisher and Johnson, he was secured and indemnified by a mortgage or deed of trust on real estate and slaves, which have been sold under said mortgage or deed of trust; in addition to which, there came to the hands of the said Hunter, and were collected by him, promissory notes, accounts, credits, property, and effects of Fisher and Johnson, and of the said Fisher, both before and since his death, of great value, and were appropriated by Hunter to his indemnity, as surety and indorser as aforesaid, and to an amount greatly exceeding any liability he may have incurred, as surety or indorser as aforesaid leaving the said Hunter largely indebted to the estate of said John Fisher. [ *360] That Thomas Long, one of the defendants, against whom, conjointly with the appellant, the judgment aforesaid was recovered, and who died some time in the year 1843, did, in the year 1841, inform the appellant that John S. Hunter having claimed of Long the amount of said judgment, it was fully paid off and discharged by Long, who showed to the appellant a statement or receipt for the amount of the judgment, in the handwriting of Hunter, with whose writing the appellant is well acquainted. That Hunter, under the pretext of an indemnity for his liabilities for Fisher, has been permitted by the attorneys, by whom the judg‐ ment in the name of Wanzer was obtained, to assume entire control over said judgment; and, in pursuance of said permission, did, on the 2d of May, 1839, sue out a writ of fieri facias, and on the 10th of January, 1840, an alias fieri facias upon that judgment, on each of which writs a return of nulla bona was duly made. That, from the date of the return upon the alias fieri facias, no proceeding was had upon said judgment until the 17th of September, 1849, when a pluries fieri facias thereupon was sued out, as the appellant charges, by the direction of John S. Hunter, and has been levied upon the property of the appellant; and, since then, a summons has been served, in virtue of the said judgment, upon John N. Smith, as a garnishee, upon the alleged ground that said Smith is a debtor to the appellant, or has property of the appellant in his pos session. That Hunter is wrongfully and oppressively, by means of the last-mentioned execution, and of the summons of the garnishee, Smith, harassing the appellant, by an effort to coerce from him the amount of the said judgment, when, in truth, nothing is due thereon, either to Wanzer or Hunter. Hinkle v. Wanzer. 17 H. Upon the allegations above set forth, the prayers of the appellant are for a decree: 1. That the judgment against the appellant and Long may be decreed to have been satisfied; or, 2. That the appellant, as administrator de bonis non of John Fisher, deceased, may be declared entitled to the said judgment, and the control of the same, if any thing shall be found due thereon. 3. That the said John S. Hunter and Moses Wanzer may be restrained from proceeding against the appellant, on the said judgment, and may be ordered to account for, and pay to the appellant any money they may have collected upon the said judgment. 4. That if the said Hunter shall claim the judgment as an indemnity for any liability of himself, as surety or indorser of Fisher and Johnson, or of John Fisher, he may be ordered and required to show on what debt or debts he was bound, as indorser or surety, and what portion of such debt or *debts he has paid out of his own individual funds, and [* 361 ] that he may be ordered to discover and account for all the property, real and personal, moneys, credits, &c., of the said Fisher and Johnson, or of the said Fisher, ever claimed, used, or received by him, for the purpose of his indemnity, as surety or indorser of Fisher and Johnson, or of Fisher individually. The appellant, with the view of sustaining his case, and of eliciting from the appellee any disclosure which might tend to such a result, has, in his bill, propounded a number of interrogatories. In our examination of this cause, we have deemed it necessary to consider such only of the interrogatories so propounded, as connected with and arising out of the allegations of the bill, do, by a comparison with the statements in the answer, present the true points or questions involved in this controversy. Those questions relate: 1. To the extent of liability of the respondent, Hunter, as surety or indorser for John Fisher, and to the sufficiency or excess of the means of indemnity alleged to have been actually received by him, for losses incurred under that liability. 2. To the alleged payment by Long to Hunter, in discharge of the judgment recovered in the name of Wanzer. 3. To the fact of a transfer, either legal or equitable, of the judg ment just mentioned, and to the right or authority of the attorneys, or of their principal, Fisher, to make a transfer or appropriation of that judgment. Of the several defendants to the bill of the appellant, John S. Hunter alone answered that bill. By the answer of Hunter is set out the assumption by him, as indorser upon bills and drafts drawn by Fisher and Johnson, under an arrangement between this firm and Messrs. Gordon, Campbell, and Hinkle v. Wanzer. 17 H. Chandler, representing, as counsel and attorneys, the creditors of Fisher and Johnson, of debts to the amount of $28,227.25. The facts of this undertaking, and of its subsequent fulfilment by Hunter, chiefly by his individual resources, are abundantly established by the exhibition of the agreement itself; by the testimony of Messrs. Campbell and Chandler, with whom, for the benefit of the creditors, the agreement was made, and through whose hands the indorsed bills passed; by the evidence of Stodder and Jayne, to each of whom a portion of those bills was transferred, in satisfaction of debts due to them from Fisher; and also by the evidence of Barney, to whom, as the agent of the United States Bank, a much larger portion of those bills was delivered. In addition to the liabilities set forth as above, it is proved [ *362 ] *by the testimony of John A. Campbell, Esq., that Hunter, on the 16th of April, 1838, by his attorneys, Gordon, Campbell, and Chandler, paid to the Bank of Columbus, upon a judgment obtained by that bank against him, the sum of $4,818.27, which sum, ne witness was informed by Fisher, was a debt incurred by Hunter for Fisher. The answer contains a statement purporting to be a full exhibit of the money raised by sales of the property pledged by Fisher for the indemnity of his sureties and indorsers, as well as of all other sums derived from Fisher or from his debtors, and which have been applied for Hunter's reimbursement. This statement in the answer, including the judgment against Hinkle and Long, amounts to $16,558.28. To this statement, however, must be added the sum of $2,200, proved by the witness, Sadler, to have been paid to Hunter, upon the com. promise of a debt due from Sadler and Barnes, and also a sum of $175, shown to have been received from a witness, Gilchrist; which sums, though derived from Fisher, are not comprised in statement in the answer. There is also exhibited in proof, in this case, a list of claims, by notes and open accounts, making an aggregate of $2,115.83, assigned by the executor of Fisher to Hunter and Cook, attorneys; which claims, it is stated in the assignment, were intended to meet the liabilities of Hunter for said John Fisher; but of these claims, many of which were not above $3, and resting upon open accounts, it is not in proof that any portion of them was certainly applied to Hunter's indemnity, or, indeed, was ever collected. But conceding the fact that the sum spoken of by Sadler and Gilchrist, and the entire list of claims assigned as above mentioned, were realized by Hunter, they would, when added to the sum of $16,558.28, admitted in the answer, compose an aggregate falling far short of the liabilities which Hunter, as the indorser and surety for John Fisher, |