I had considerable hesitation about allowing the injunction, in the first instance, from doubts which I then entertained of the necessity of the complainant’s coming into this court for relief in respect to the two large notes and as to the bill making out a case sufficient in law or in equity to exempt him from the payment of the other two notes mentioned in the bill and on which distinct suits were brought. The bill calls for no discovery here; and, indeed, the complainant stands in need of none; because the facts, which he has set out, can, doubtless, be proved by the then acting president and secretary of the" company—both of whom must have a personal knowledge of the transactions and can be called as witnesses on the trial of the suit at law. But the great point is, whether the facts alleged constitute- a good defence at law, either by way of set-off or otherwise ; and if not, how far they will avail the complainant as a matter of equitable relief in this court 1
The bill proceeds on the ground that the complainant has a just claim for the market value of the 1000 shares of stock or for damages resulting to him from the wrongful conversion of them to the use of the company, which he cannot set off at law against the notes; and that his remedy, in a distinct action for such wrongful conversion or for the value upon an express or implied contract, would be unavailing to him against an insolvent, broken-down, foreign corporation. All this is very true, for I think the demand which the complainant has a right to make, either for the market value or for special damages for the tort, in which*312ever light it may be presented, not such a as can the subject of set-off under the statute. The amount is not liquidated nor is it capable of being ascertained by calcuiation within the meaning of those terms as used in the statute : 2 R. S. 354, sec. 18, pl. 3 ; and see Holbrook v. Receivers of American Fire Insurance Company, 6 Paige, 220. But, though a legal right of set-off may not exist, I think the bill presents a case of a perfect and full defence at law against the payment of the two large notes for twenty-six thousand seven hundred and five dollars and fifty-five cents and twenty-six thousand seven hundred and sixty-six dollars and sixty-seven cents, on which one of the suits at law is founded. According to the bill, these notes were given and accepted by the company with no view or purpose of ever calling on the complainant to pay them. The company had already received the money for which they were given and they were, consequently, without consideration. The original indebtedness of $50,000 had been paid and the note for that amount surrendered and can-celled under an arrangement and settlement of the tenth day of December 1838, and sometime afterwards those two new notes were applied for and given as a mere favor and not as a matter of right to serve the purpose of vouchers in the hands of the officers of the company—not as any evidences of debt which the company could or would ever attempt to enforce, because, by the agreement, the company were still to account for some balance confessedly coming to the complainant from the stock which the company had taken and sold in London, over and above the two thousand and fifty-four dollars which they had paid to him at the time of surrendering the fifty thousand dollar note. Why is not all this a good defence at law in the suit upon these two large notes, not, it is true, by way of set-off or of counter claim, but as showing a total want of consideration, rendering the notes mere blank pieces of paper and no evidence of debt in the hands of the company? I apprehend there cannot be a doubt on the subject; and, if so, the complainant is under no necessity of seeking relief against the notes in this court. In this respect it is not unlike the case of Minturn v. The Farmers' Loan and Trust Company, in which the *313chancellor recently, on appeal, ordered an injunction dissolved, which had restrained a suit at law on a promissory note, collaterally secured by a pledge of stock and in relation to which the complainant insisted that, in the course of the dealing, he had become exonerated from all personal liability. The chancellor decided that he should be left to make his defence at law. Then, as regards the note payable in sterling money on which a suit is also brought against the complainant and Mr. Duer jointly and enjoined by the present injunction. This note appears to have originated in some other transaction with the company in which Mr. Duer and the complainant were jointly interested, having no connection with and entirely distinct from the business of the one thousand shares of stock and the giving of the original fifty thousand dollar note and the subsequent two notes above mentioned. The bill raises no objection to the validity of this note nor to the liability of the makers upon it for that part of the amount which has not been paid. It only insists that the complainants claim against the company for the proceeds or value of the one thousand shares of stock still remaining to be accounted for and paid to him will go far towards paying off or satisfying this note. As already shown, this cannot be done by way of set-off by reason of the unliquidated character of the demand. And it is, moreover inadmissible as a set-off, because the note is a joint note of the complainant and another person and the suit is against them both. “ If there be several defendants,” (says the statute) “ the demand set off must be due to all of them jointly 2 R. S. 354, sec. 18, pi. 6. The bill contains no allegation to show that, as between the complainant and the other joint maker, it belongs to the complainant alone to pay the note so as to take the case out of the strict letter of the statute and enable this court to apply the principle of allowing cross-demands arising from mutual debts or mutual credits in the same right to compensate each other where insolvency or bankruptcy has intervened to prevent a recovery in a cross action. The fact of its being a joint note or a joint bond that is sued upon prevents the application of that equitable doctrine, as is shown bv the chancellor in considering one branch of the *314case of Holbrook v. Receivers of the American Fire Insurance Company, (see 6 Paige, 231,) and on this same point of extending equitable relief beyond what is allowed by the statute, another difficulty exists in the present case, that the sterling note sued upon and the transaction concerning the one thousand shares of stock have no connection with each other, but were in their origin entirely distinct, growing out of different contracts or dealings, in the one of which a third person was a party who had no interest in the other. This subject is remarked upon by the chancellor in the case cited where he held that Holbrook’s individual demand for a loss upon a policy of insurance could not be allowed even in this court to compensate or satisfy a joint bond of his and another person which were held by the receivers of the Insolvent Insurance Company with whom he had effected the insurance, the giving of the bond and the policy of insurance having no connection as parts of the same transaction and it not being pretended that the bond was given for the individual debt of Holbrook with the other person to it as surety only. For the same reasons I think the claim which the- complainant has against the company, however just, cannot be allowed either at law or in this court to interfere with the legal right of the company or its assignees to proceed with the suit upon the sterling note.
The suit upon the twenty-five hundred dollar note mentioned in the bill was not enjoined, and hence the present motion does not involve the consideration of any question in relation to it. The injunction, as far as it was granted, must be dissolved, with costs to be.taxed.
Order accordingly.