Page:North Dakota Reports (vol. 3).pdf/267

 become the duty of the defendant to return the note. The authorities seem to sustain the doctrine that on demand fora note, under such circumstances, the cause of action arises, and that the maker may recover the full face value thercof, although he has not paid it or been held liable upon it. Thayer v. Manley, 73 N.Y. 305; Comstock v. Hier, 1d. 269; Farnham v. Benedict, 107 N.Y. 159, 13.N. E. Rep. 784; Decker v. Matthews, 12 N. Y. 313. Where the note has been negotiated before maturity for value, as in this case, there would seem to be no doubt as to the soundness of the doctrine; and when the note is still in the hands of the original party, the defendant, but is not due when the action is brought, the rule ought to be and is the same. Thayer v. Manley, 73 N.Y. 305. Neither does the fact that the maker might restrain the negotiation of such a note, and compel its surrender in an equitable action, affect his right to maintain an action at law fordamages, Id. But the judgment ought not to be absolute, if the defendant requests the privilege of restoring the note, and saving plaintiff from all possibility of loss on account thereof. The plaintiff has paid nothing. His right to damages depends upon the danger of being compelled to pay the note. When that danger is removed, it would be a perversion of justice to allow him still to recover judgment for a damage he has not suffered, and cannot possibly suffer in the future. If the judgment is to stand absolute, then the note becomes valid, and another action is necessary to settle tights which ought to be adjusted in onc suit. Under our system the defendant may urge as defenses matters in legal actions, which under the old system he must by appropriate equitable actions have relied on as the basis of equitable relief. The policy of the law is to settle all the controversy in a single suit. If the maker is insolvent, the defendant is powerless to compel him to disgorge what he has received without any substantial right thercto. The defendant, however, has assumed that the fact of nonpayment of the note, when coupled with the insolvency of the maker, would constitute an absolute defense, In this we think he is in error. His right is to have the