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Secor & Brooks, et al. v. Woodward,

We need not point out what should be the form of the decree to be rendered in the present case. This must depend upon the terms of the will. But we may remark, that eleven hundred and ninety dollars should, beyond all contingency, be so secured, that the sum may be invested for each of the younger children, when they become entitled to the possession of it. In addition to that, each of the children designated in the will, are entitled to take share and place alike of the property which may revert to the estate by their mother's marriage.

The decree of the Orphans' Court is reversed, and the cause remanded.

SECOR & BROOKS, ET AL. v. WOODWARD.

1. A Court of Equity has no jurisdiction to injoin a judgment at law, merely because the process from that Court has not been served on the defendant. It is necessary further to show, that the party, by the irregularity, has been precluded from urging a valid defence.

Writ of Error to the Court of Chancery for the 1st District.

THE case made by this bill is as follows: Woodward, the complainant, asserts that Secor & Brooks, for the use of Huntington and Lyon, had recovered a judgment against him in the Circuit Court of Mobile county. That the writ in that suit was sued out against him and one Taylor, as partners, and the cause of action is stated thereon as an open account. The writ, as to the complainant, was returned, not found, but was not executed upon Taylor. At the time of suing out this writ, no copartnership existed between Woodward and Taylor, and one which had previously existed, had been dissolved, and notice of the dissolution published, which was known to the

Secor & Brooks, et al. v. Woodward.

defendants, or some one of them. The first notice which the complainant had of the judgment, was a demand by the sheriff, upon an execution issued on it.

The bill prays an injunction, and makes the parties previously named, defendants; as also, Harris, the assignee in bankruptcy of Secor & Brooks.

No answer was put in by any of the defendants, but they appeared by counsel, and moved to dismiss the bill for want of equity. After a pro confesso decree, they again, at the hearing, urged the same matter, but a decree was rendered perpetually injoining the plaintiffs at law from proceeding on their judgment. This is assigned as error.

STEWART, for the plaintiffs in error.
CAMPBELL, for the defendant.

GOLDTHWAITE, J.-There is no allegation of any equity in this bill which will authorise a Court to sustain it. There is no pretence that the judgment is unjust, or that a defence could have been made, or that one ever existed at law.

It is in effect, an attempt to question the correctness of the proceedings in the Court of law, for the reason, that the process in that Court was not served on the complainant. Now, we apprehend that all Courts are capable of protecting their own suitors against the consequences of irregularities committed either by their own officers or by the adverse party. And matters of this nature furnish no ground of equitable interposition, unless it can also be shown that the party has a just defence to the action, which he has been precluded from urging in the Court of law, in consequence of the supposed irregularity. [Bateman v. Willoe, 1 Sch. & L. 205.]

The decree must be reversed, and the bill dismissed.

Lockhard v. Avery & Speed, use, &c.

LOCKHARD v. AVERY & SPEED, USE, &c.

1. A note was executed on the 1st April, 1841, for the payment of $140, on 1st January after, with a memorandum underwritten "to be paid for when started;" held, that this was such an ambiguity as might be explained by extrinsic proof.

2. It being proved that the note was given for a cotton gin, which the defendant had the privilege of trying and returning if it was not good-held, that this was a condition for the benefit of the defendant, which he must take advantage of by plea, and that the note might be declared on, as an absosolute promise to pay on the 1st January, 1842, without noticing the con dition.

Writ of Error to the County Court of Sumter.

ASSUMPSIT by the defendant in error against the plaintiff, on a promissory note of the following tenor;

$140. On the first day of January next, I promise to pay Avery & Speed, one hundred and forty dollars, for value rec'd. 1 April, 1841. To be paid for when started.

:

GEO. LOCKHARD.

The declaration is in the usual form upon the note, as a debt due the 1st January, 1842. Pleas, general issue, and failure of consideration.

By a bill of exceptions, it appears, that testimony was introduced tending to prove, that the note sued upon was given for a cotton gin, of Avery & Speed's manufacture, and that the note was given upon the condition, to be paid for when the gin was started, or set at work, and that if it did not perform well, a good gin was to be put in its place, and that this was the purpose for which the memorandum was placed upon the note. It was also proved by a witness, that his farm joined that of the defendant, that he did not know, or believe, that defendant had any gin running upon his plantation up to the time this suit was brought.

Upon this testimony, the defendant moved the Court to charge, that if the testimony was believed by them, the note was variant from that described in the declaration, and the plaintiff could not Lockhard v. Avery & Speed, use, &c. recover in this action, which motion the Court refused, and the defendant excepted-which is the matter now assigned as error.

SMITH, for plaintiff in error, submitted the cause.

ORMOND, J.- The question presented upon the record, by the motion to exclude the note from the jury for a variance, is, whether the note is described in the declaration according to its legal effect. It is described as a note falling due on the 1st January, 1842, disregarding the memorandum attached to it, "to be paid for when started." This memorandum, without the aid of extrinsic proof, is without meaning, and neither anticipates or postpones the time of payment agreed upon in the body of the note. It appears therefore to belong to the class of latent ambiguities, and open to explanation.

By reference to the proof, it appears that the note was given for a cotton gin, and that by the agreement of the parties, the note was to be paid when the gin was "started," or in other words, when the gin was set at work, and that if it did not perform well another was to be substituted in its place.

The intention of the parties doubtless was, that the defendant should have an opportunity of trying the gin, and ascertaining its qualities, before he could be called on for payment. This was clearly a condition inserted in the contract, for the benefit of the defendant, and if the contingency had happened contemplated in the condition, that the gin upon trial did not answer the purpose, he should have pleaded it in abatement, or bar, as the case might have required. The plaintiff was not bound to notice the condition, but might declare upon the positive undertaking of the defendant, to pay by the 1st January, 1842. In the case of a penal bond with condition, the plaintiff may declare on the penalty without noticing the condition, and between that, and the present case, the analogy seems complete. We think therefore the Court did not err in refusing to exclude the note from the jury for a variance, and its judgment is affirmed.

Anderson v. Snow & Co. et al.

ANDERSON v. SNOW & Co., ET AL.

1. The contents of articles of partnership cannot be proved by the testimony of a witness who states that he saw such a paper subscribed with the defendants' names, and apparently attested by two other persons as subscribing witnesses, but with the hand-writing of all whom he was unacquainted. 2. A partner, or joint promisor, who is not sued, is a competent witness for his co-partner, or co-promisor, where he is required to testify against his interest; and where such evidence is within the scope of the issue, the Court should not assume his incompetency, and reject him in limine.

3. Where the bill of exceptions merely states that the defendant offered to show the contents of articles of copartnership by a witness, and that the plaintiff's objection to the evidence was overruled, the fair inference is, that the objection was made because it was not shown that the articles could not be adduced; consequently the evidence was improperly admitted.

4. Evidence was adduced to show that a private stage line had been stopped by the attachment of its "stock," at the suit of one of the defendants. Whereupon that defendant was permitted, upon proof of the loss of the ori ginal, to give in evidence "the record of a mortgage," executed to him by one of the alledged proprietors of the line: Held, that it can't be presumed that the mortgage was inadmissible; and the registry in the office of the clerk of the County Court was admissible as a copy.

Writ of Error to the Circuit Court of Chambers.

THIS was an action of assumpsit, at the suit of the plaintiff in error, against the defendants, who are charged as partners in running the Defiance line of stages, under the name and style of W. W. Snow & Co. The declaration alledges that the defendants are indebted to the plaintiff in the sum of one hundred and thirty-three dollars and twenty-eight cents for keeping and feeding stage horses belonging to the defendants, and also for so much money paid, laid out and expended, at their special instance and request. The writ was executed on Snow, Aikin and Havis, and returned not found as to Robinson and Thompson, the two other defendants against whom it was sued out.

Aikin appeared and pleaded-1. Non assumpsit. 2. That he was not a partner with the other defendants who were sued

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