Donohoe v. Gamble

Citations

• 38 Cal. 340

Syllabus

<p>Bills of Exchange and Promissory Notes Held as Collateral Security for A Debt__Whether negotiable paper endorsed over to and held by the creditor as security for the payment of a debt, without any other express agreement between the parties, is a mortgage or a pledge ? Quere ?</p> <p>Courts of Equity—Power of over the Pledge of Negotiable Instruments. —Has a Court of Equity power to decree the foreclosure and sale of a negotiable instrument, in satisfaction of the debt for which it is held in pledge, under ordinary circumstances ? Quere ?</p> <p>Idem.—Under special circumstances, a Court of Equity has the power to decree the sale of such instruments so held.</p> <p>Idem__Where the maker of the note or bill of exchange resides in a remote country, or in a different State, and it is not shown that he has any property subject to seizure and sale, within the jurisdiction of the Forum, there is presented such special circumstances as to authorize the holder of the instruments given in pledge to resort to a Court of Equity for a foreclosure and sale.</p> <p>The eases of Wheeler v. Wewbould (5 Duer, 29); Same case—15 N. Y. (2 Smith) 392; Brown v. Ward (3 Duer, 660), and Atlantic ■Fire and Marine Insurance Co. v. Boies (6 Duer, 583), commented on and doubted.</p> <p>Per Rhodes, J., dissenting:</p> <p>Negotiable Instruments Assigned as Collateral Security for a Debt.— Where a negotiable instrument is assigned as a collateral security for a debt, and no special contract is made, the contract, rights, liabilities and duties of the parties arc the same as in the case of the assignment of the same instrument for value, with the exception that the assignee undertakes to pay the assignor the overplus he may receive after the satisfaction of the principal debt.</p> <p>Power of a Court of Equity not Invoked by the Circumstances of this Case.—No facts appear in this case which take it out of the ordinary course of procedure.</p>