Terry, C. J., concurring.
The Court below erred in dismissing this suit. The reason seems to have been that the complaint does not state facts sufficient to constitute a cause of action. The facts, in short, are, that respondents made a joint and several note or bond for $4500, to John A. Sutter; afterwards, Sutter gave his note for $1000, with large interest, to one Condy, giving Condy this note to respondents in pledge to secure thepayment. Condy assigns his note on Sutter, and the pledged note of Fall and Hanson, to Fall, to hold as he held. Sutter assigns to Dupré, the plaintiff, the note of Fall and Hanson, in the possession of Fall, and Dupré demands payment, offering to credit the amount of the Condy note on Fall’s note, which is refused. We think, under these facts, Dupré’s right to recover this balance is -clear. Equity will not require the mere empty formality of one man's paying another money when this same money would be due immediately to the *431payor on another contract of the same character then presently due. The note or bond of Pall and Hanson was joint and several in terms, and Dupre had a right to hold Fall bound to him severally as his debtor, and Fall could have asked nothing more than that his security should be turned into money in his hands, which would be an effectual protection to him against his liability.
The judgment is reversed, and cause remanded.
[Field, J., having been counsel in the Court below, did not sit in the case.]