text:
    MARR’S EXECUTRIX versus SOUTHWICK, CANNON & WARREN.
    Though the account of a plaintiff exhibit no charge against a defendant within six years, yet an item in the defendant’s account, within that period, takes the case without the statute of limitations, of six j'ears.
    Where a case in Chancery can be completely decided, between parties; the circumstance that an interest exists in another person, whom the process of the Court cannot reach, will not, prevent a decree upon the merits.
    A suit against the representative of an estate, for the purpose of subjecting the assets of a deceased partner, to the payment of a judgment obtained against the firm; is a new and distinct proceeding, against a new party; and all the facts must be established by testimony, in the ordinary manner.
    Thus, the judgment obtained against a firm, in such case, is not proper evidence, nor can th*o depositions taken in the Common Law suit, be read as testimony against an executor,in a Chancery cause, to compel payment out of the estate of the firm debt. _
    Where a judgment, having been obtained at law in this State, aga’nst a firm; the creditor, residing abroad filed a bill in Chancery against the representative of the estate of one of the partners, to subject the assets of the estate to the payment of the judgment — held, that an admission, that one of the firm resided in New Orleans, and was solvent, was fatal to the Chancery case; for this was an admission of a complete and adequate remedy at law, which should have been pursued, before resorting to equity for relief, against the •estate of the deceased partner. **

    Interest may be charged on an open account, when the contract stipulates for a certain period of credit; but the law does not permit rests to be made in such account every six or twelve months, ro-stating the account at each time, and converting interest into principal; and no custom or agreement to that effect can alter the law.
    Southwick, Cannon & Warren, merchants, of New York, brought their action against Tarrant & Marr, as partners, in the Circuit Court of Tuskaloosa county. The writ was served on Marr only. During the pendency of the trial, Marr died; and judgment was rendered against Tarrant, the surviving partner. The said Southwick, Cannon & Warren, afterwards filed their hill in-Chancery in the Circuit Court of Tuskaloosa county, setting forth that Tarrant had removed beyond the jruisdietion of the Court, and out of this State; that he had no property here, nor had when judgment was rendered, and that he was insolvent : that Marr defended the suit at law during his life time, and employed an attorney who defended it until judgment was given : that he (Marr) left at his death a largo estate and property, sufficient to pay the debt, and that he constituted Nancy Marr his executrix, who had taken upon herself, that trust; and the bill sought a decree against said executrix for the amount of the judgment, interest and costs, to be made out of the estate in her hands.
    The answer of the defendant denied any know-, ledge of the original claim against the testator; did not admit its justice ; denied the liability of the estate .under the judgment, and required full proof on the put of the complainants. The defendant contended that usurious interest was charged in the claim for wiiich judgment was rendered ; and of this she claimed the advantage allowed by law. The answer also denied the insolvency of Tarrant; relied on the statute of limitations, and set up other defences, which, in view of the points embraced in the decision, it is not deemed necessary to notice in this place.
    Á bill of exceptions taken in the cause shewed, among other things, that the defendant objected to the reading of the judgment at law in evidence in the Chancery suit, also to the reading of the depositions taken in the suit at law ; which objections were overruled by the Court, and the judgment and depositions admitted in evidence. The defendant objected to a decree, because the fact, whether Marr was a partner of the firm of “ J. Tarrant & Co.” was a fact to bo tided by a jury.
    The defendant applied for a continuance of the cause, to enable her to prove ihe solvency of Tarrant at the time cf filing the bill; and that he resided in New Orleans, was engaged in extensive business, and enjoying good credit. These facis, the complainants, for ike parpóse cf obtaining a trial at the time, admitted.
    Tho Court below decreed the amount of the judgment at law, the interest thereon, and the costs of said judgment, to be paid by the defendant out of the estate of her testator.
    Crabs, for Plaintiff in error.
    The demurrer should have been sustained for want of proper parties defendant. The complainants lived in New-York, and Tarrant lived in Louisiana. Tarrant was as much within the reach of the complainant, as was Marr’s representatives. Tarrant ought, at least, to have been made a party to the suit, because he was not only a party in interest, but was first liable.— Gow, 109, 110, 232 — 2 Stewart, 291 — AiMris Dig. 289.'
    Tho demurrer should have been sustained, because there was a want of equity in the bill. The remedy was at law. It was so, I contend, independent of the statute. But our statute renders the remedy at law more clear and unquestionable. It makes the debts of partners joint and several, allowing a remedy against either. — Aikiris Dig. 268. Wc have a statute which does away the jus accrescenai in cases of joint contracts. This removes the reason respecting the right of survivorship as to the remedy; and the law with us corresponds with tho reason of the case.
    Chancery cannot be resorted to where the remedy is adequate at law. — 1 Stewart, 81, 532.
    Had the complainants brought their suit against us at law, we would nave had an opportunity of defending ourselves before a jury of the country, where all matters of fact involved might have been properly investigated, and where, among other things, the question, whether Marr was the partner of Tarrant, might have been tried by a jury.
    The demurrer should have been sustained, because the object of the bill was not a legitimate one. It was to revive a judgment against John Tarrant, so as to make it operative against the executrix. This was not allowable. There was no privity in the case. The executrix is neither the representative of John Tarrant, nor of Tarrant & Co. A partnership , is in the nature of a private corporation: Tarrant only, has any privity with the firm. There can be no revival of a judgment without such privity, and when •such privity exists, the remedy is a sci. fa.— Coke on Lit. A. — 6 Bacons Abr. — 1 Stewart, 194. It should have been shewn that the property of the firm had-passed away entirely, before the representative of the deceased partner could be proceeded against.
    The Court erred, in permitting the judgment against Tarrant, to be introduced as evidence in the Chancery cause. The parties were not the same : They were not th.e same in interest, nor in equity and justice. Marr may have had a defence, personal to him-sel. -We contend he had. The admission of this evidence, was groping in the dark for the truth of the case. The point in controversy was not necessarily the same.- The presumption is, that the defences set up in the answer, were never made in the Court of Common Law. The executrix contends that Marr ■was never a partner — that the claim is affected by usury. Were these defences made before? The judgment was no evidence of a debt against the exe-trix.-^Peake, 68, 69 — Star hie, 190, 191, 217, 221— 1 Conn. Rep. 507 — 3 ib. 516 — 1 Munf. 373, 374, 37, 398- — 3 Johnson's Reports, 8 — 14 Johnson's Reports, 79 to 81 — 4 Mass. Rep. 613 — 3 Yates’ Rep. 128 — 3 Greenfoaf’s Rep. 165.
    It was error in the Chancellor, to permit the depositions, taken in the Common Law suit, to be read in tli3 suit in Chancery, against the executrix. The suit was abated as to Marr. There was no judgment against him; the judgment, therefore, against Tarrant, could not be read against Man’s representative ; and the depositions mast follow the same rule. It is the depositions which support the judgment.
    The question as to Man’s partnership should, have been tried by a jury. It was a question of fact, and one on which the whole case might turn. — 2 Mad-docJc’s Ch. 230, 474, 475, 479. If it be said that the chancellor had a discretion in this matter, I contend that it is not such a discretion, but this Court may decide, that the Court below decided erroneously.
    The Court did wrong in reviving the judgment at law, instead of trying the facts anew. The decision of the Court, in the Common Law trial, was improperly taken as conclusive.
    There was also error in the decree against the executrix, because Tarrant was living and solvent. Tar-rant might have been sued in the Federal Court. ' The cause of action was not local: he might have been sued in the Courts of Louisiana. The case here, is altogether different from those cases to which the English doctrine applies, of a party being beyond the four seas. For the doctrine, that the complainant was bound to pursue tho surviving partner, he being solvent — sesdFq/, 481 — 1 Qallisons Rep. 371, 2 Mass. 572.
    The decree is also erroneous, for usury. The authorities are against allowing legal simple interest on an account of this kind. But here, by six months rests, the interest was converted into principal, and interest thus allowed upon interest. This is clearly ■usury.
    Peck, contra.

    The remedy against the estate of a deceased partner, where the debt can not be collected out of the surviving partner, is clearly in Chancery. — Kirfo/sHep. 147 — 2 Johns. C.Ii. 508. It is because the surviving partner is supposed to have in possession the effects of the firm, that the remedy is first against the survivor. Then when all due diligence has been used against the survivor, without the creditor being able to recover, the remedy against the representative of the deceased partner becomes complete. And this remedy can only be pursued in equity.
    It is urged in argument, that in our State, we have a remedy at law: that our law wakes the debts of partners joint and several. If this were true, it would overthrow one of the strongest objections that the defendant below makes, namely, that we did not sufficiently pursue the debt against Tarrant. Such, however, is not the law; and if it were, it would work .great injury. The doctrine is fully settled in this Court, that the only remedy in the first instance, is against the survivor.— Goto on Part. 460 — 1 Gallison, 630. 'But, before the remedy in Chancery could be taken away, such would have to be the express language of the statute. A new legal remedy would not take it away. The old remedy is not to be considered as removed, where both may stand together.
    After it had been urged, that our remedy was at law, because our statute had made all such debts joint and several, it is strangely contended, that we were. bound to pursue Tarrant further than we did. If the debt and the remedy had been several, as contended for, we were not bound to pursue Tarrant at all. But without insisting on this, if the survivor'be either insolvent, or beyond the jurisdiction of the Court, it is sufficient, to give us our remedy in equity. If both partners were living, the whole debt might ha collected from Marr, a bill being filed stating that the other partner lived beyond the jurisdiction of tho Court. Tarrants’ being out of the state, is sufficient ground for us to proceed in equity against Marr’s representative. The State of Louisiana is a foreign State, as to the jurisdiction of our Court. If we could not proceed against Marr’s estate, on account of Tarrant being in Louisiana, then if he were to go to England or to France, the case would be the same. Would the Court send a creditor to England, to bring his suit in the Court of King’s Bench, when a party, bound in equity for the payment of the debt, was here. — 1 Vescy, jr. 416 — 2 AtJdns, 510. We pursued our remedy against the surviving partner, as far as the Courts could reach. We obtained a judgment, had an execution issued, and it was returned nulla bona.

    It is objected that Tarrant should be joined in the bill. The objection is untenable. To have joined him in the bill would have been a misjoinder of parties. In such case, the decree would .have been against Tarrant in his own right, and against the executrix, in her character as such. The decree must have been against both for the whole amount; but, in different rights.,. This would have ■ been a fatal Objection to the decree.
    As to the introduction of the Common Law judgment in evidence, it is admitted, that,'in general, a judgment against a different party cannot be received ; but this stands on different ground : the judgment was properly against the firm. — 1 Starkies Ev. 181 — 2 Stewart, 3S6 — 1 Espinas. 607. The suit was commenced against Tarrant and Marr, and the judgment rendered against Tarrant, as survivor of the firm. In such a case, I doubt whether the j udgment should not be taken as conclusive evidence of the indebtedness, and of the amount of it. The same matter was in issue; the debt was the same — the plaintiffs were the same, and the defendant was the executrix of one of the same defendants. Is not this a stronger case than that in Starkie, where the judgment against the sheriff was made conclusive evidence against the securities ? But, be this as it may ; the judgment was, at least, admissible evidence to shew that complainants had prosecuted their suit at law as far as due diligence required ; and also to authorise the admissions of the depositions, and to shew that Marr had an opportunity of cross-examining. .The introduction of the judgment and of the proceedings in the Common Law suit, was certainly proper in the suit in Chancery. They had been exhibited in the bill, and admitted in the answer. The judgment was, I conceive, a judgment against the firm, and therefore binding; but the chancellor does not seem to have given that, extent to the effect of the judgment. As to the doctrine concerning parties and privies, I contend that Marr was, in effect, a party. He was a party to the suit, and although he died before judgment, the suit was defended by the survivor, and the judgment therefore, as I think, settled the amount of the indebtedness of the firm, of which the executrix' testator was a member..
    The depositions taken in the Common Law suit, were proper evidence. Depositions properly taken in one proceeding, may alwaj^s be read in another between the same parties, or those claiming under them. There could be no necessity of taking these depositions over again. They had once been regularly taken (the witnesses residing in Nów-York) and the executrix’ testator had a full opportunity of cross examining. — 1 llar. Ch. P. 299; '2 Haddock C. PI. 443 ; Viner’s Ab. 2cl v. A, 553 ; 2 Vern. Rep. 443 ; 1 Vern. Rep. 413; 3 Johnson's Ch. -Cases, 374; Star-kie's Evidence, 272,273.
    It is urged that the bill should have .been adjudged bad on demurrer, because it prays for a revival of the judgment at law. If the prayer be inapproprh ate, that is no cause of demurrer. If the bill be judged bad, it must be on account of its allegations. But I do not perceive the inaptitude of the prayer. The revival for which it prays is not to be taken in the technical sense, which must be by sci. fa.

    It cannot be error that the Cdurt did not submit the question to a jury whether Marr was a copartner or not. Such submissions of matters of fact are within the discretion of Courts of Chancery, and the exercise of discretion is not a ground of. error.
    I contend that nothing like usury is established in this transaction. The goods were purchased on a stated credit of six months. At the- end of that time the debt bore interest; and in the payments made from year to year, the interest was first deducted ; but after the closing of the account, rests were no longer made, nor interest charged, except on the principal debt.
    Wilson, in reply.
    It is contended on our part, that the remedy was at law. According to the English. common law, partnership contracts were joint, and one partner being alive, law would not permit a suit to bo prosecuted against the estate of the other. Resort must be had to chancery for that peculiar reason. This was not general but special chancery jurisdiction, and when this reason comes to cease, as it does by our statute, which has made partnership contracts several as well as joint,, then resort cannot be had to Chancery. When the suit was brought against Tarrant & Co. Tarrant, who was the active partner, lived in New Orleans. The suit might 'have been brought against Tarrant in the State of his residence; or it might have been brought here against Marr alone, in this last case, the death of Marr would only have produced a few months delay. The delay that is complained of was occasioned, by the course which the complainants chose to pursue. If the complainants had sued Marr alone, they would have had a complete remedy at law. So, though more tedious, his remedy was complete at law, by taking a judgment against Tarrant; but he was bound to pursue that judgment, and to collect it of Tarrant. Or if they were not bound to pursue Tarrant, why might they not have prosecuted a suit at Common Law against the executrix — partnership contracts being, in this State, several as well as joint. In any point of view, there seems to have been no pretence for going into Chancery.
    Tarrant should have been made a party. All having an interest in the judgment or decree 'should be made parties. Tarrrant was primarily liable. He has the funds of the firm in his hands. Why should the executrix, who is a stranger to the transaction, be pursued alone in a Chancery suit. She, at least, was entitled to the aid of Tarrant’s knowledge of the 'matters in contest; That the decree would have been against Tarrant and the executrix, in different rights, is no objection in Chancery: the. Chancellor can make the proper decree against each party.
    The States of the Union are not foreign to each other, like France, England, and the East Indies. Though fond of the doctrine of slate sovereignty, I have never carried it that far. The people of the States form one people for many purposes. . The Federal Courts were open to the complainants. The complainants’ living not in this State, but in New York, were not privileged suitors. If Lam right as to the severalty of the claim, then the complainants’ remedy at law was complete against the executrix; if I am not right in this, then the complainants were bound to pursue the surviving partner, who was as accessible to them as the executrix, neither' residing •in the same state with the complainants. ,
    The bill does seek to revise the judgment at law. The complainants do not go on the original consideration. This is not allowable. The Chancellor can, it is true, grant relief under the general prayer, but not contrary to the tenor and main scope of the bill. This was a bill for a revival, and therefore not to be supported in such a case.
    The opposing counsel represents the judgment at law as not being offered or used as the foundation of tho decree. How so: the judgment is'made part of the decree, the cools are embraced hr the decree. Look at the language of the MU and of the decree also! Would equity-have allowed the compound interest, if the judgment had not been regarded as conclusive ? The interest is added to the principal, even where there wore no payments, at; the end of each year, and interest charged on interest, for fiv®

      years ! If .that be not compound interest, I know not what it is.
    The executrix was neither party nor pyivy to the Common Law suit. She was neither the represen’ tative of Tarrant, nor of the firm. The judgment then, and the depositions were improperly used as evidence, to prove the indebtedness of her testator. It does not appear that the depositions were read in the Common Law cause ; and if they were, still, if Marr had lived, he might have excluded them.
    The decree is certainly erroneous. Tarrant’s acknowledged solvency would of itself be fatal to a recovery against the executrix of the deceased partnei'.
   By Mr. Justice Hitchcock :

In this case the bill was filed in the Circuit Court of Tuskaloosá county, by the defendants as complainants. ' The bill states that the complainants are mer■chants and partners, doing business in New-York. In 1824, one John Tarrant and one William M. .Marr, since deceased, purchased goods of complainants, and continued to do so until 1830, making occasional payments; that in . June, , 1830, a balance was struck, and the defendants were indebted to complainants for principal and interest, one thousand six • hundred and three dollars and eighty six cents: that a statement of the final account was made and forwarded to the defendants, which they neglected to •discharge: that a suit in assumpsit ivas instituted by complainants against defendants in the Circuit Court of Tuskaloosa county, on the thirty-first of January, .1831, returnable to the next March term. The writ was served on Marr only. At September term, 1831, the death of Marr was suggested, and the cause ordered to proceed against Tarrant, the surviving partner ; that at the April term, 1832, a verdict and judgment were rendered against Tarrant, for one thousand eight hundred and one dollars and -eighty four cents, and one hundred and twenty one,‘dollars and ninety five cents costs: that execution'-* was issued on the judgment, and returned “ no property:” (the record of which suit is exhibited:) that Tarrant did and does reside beyond the limits of the State, and has no property here, nor had when judgment, was rendered, and was, and is reputed insolvent, and is insolvent : that Marr died in August, 1.831, and until his death defended the suit, and employed an attorney, who defended the same until judgment: that Marr left a large estate, and personal property, sufficiént to pay the judgment: that Marr made a will, nominating the defendant as his executrix, who .accepted the trust: that the will directs all Marr’s just debts to be paid, and contains an admission of Marr’s partnership with Tarrant: that the judgment against Tarrant is an equitable demand against the estate of Marr : that the defendant refuses to pay it, and pretends that Marr and Tarrant were never partners,- "and never purchased goods of the complainants — the contrary whereof is true; and that equity has jurisdiction of the case.

The bill prays, that the defendant, executrix, be made a party, and that she may answer: that the defendant, as executrix, be decreed to pay the full amount of the judgment, and costs of suit, and interest thereon ; and also prays for general relief.

The defendant, in her answer, 'states — that she knows nothing of complainants account, -except that she heard her deceased husband say it was unjust, and that he would not pay it. The'institution of the suit, and proceedings to judgment aré admitted.

The defendant, insists, that the judgment cannot form a ground of recovery against her, being ex parte, and not obligatpry; and requires that her liability be established, by witnesses which she may cross-examine; and' adduce rebutting testimony : that the mode of calculating interest, as appears from the exhibits, renders, the judgment usurious and void; she claims advantage of this : that one thousand four hundred and seventy one dollars worth of goods were purchased by Tar-rant, individually, for which she is not liable that the credits on the account should be confined to a period subsequent to the first purchase by Tarrant: and that the judgment as against her,-for these reasons, is void.

The answer admits the will, and refers to it for alii defendant’s information respecting the co-partnership the defendant did not pay the judgment, because her husband said the claim was unjust: that the defendant is informed b.y Tarrant, that the firm of J. Tar-rant & Co. was composed of one James Pitcher, Samuel Pitcher, the said Tarrant and her husband that the articles of copartnership were made a consi-, derable time after the account, and were anti dated by James Pitcher, with a fraudulent intent to charge hen •husband with the purchase of goods, which was made by James, Pitcher: that the suit should have been commenced against Samuel Pitcher, who died since, her husband. The answer admits, that John Tar-, yant resides in New Orleans, and so resided before, the institution of the suit at law, within the knowledge of complainants, and states a belief of his sol-, vency; and that Tarrant says, he is able to pay all just demands. The answer also submits that Marr may have, defended the suit until his death, and his counsel continued in the defence until judgment, yet this, does not authorise a recovery on that judgment, as.it, was ex parte : Üiat she does not, know when Samuel Pitcher died : that Majr had considerable property— enough to pay his just debts: that the estate is yet unsettled : that the defendant does not wish to incur individual responsibility : pleads the statute of limitations : (that 1826 is the last item in the account — - 1828 the last credit thoreon:) defendant is ignorant of partnership transactions, Tarrant being the acting partner. The defendant demurs to the bill, insists that judgment against one partner cannot be revived against the representatives of a deceased partner,, without proving the original consideration : that the-remedy is at law, and complainants entitled to none of the relief sought for.

The Chancellor decreed the amount of'the judgment at law, ($1811 84,) interest thereon, ($284 98) and the balance of the costs of the judgment at law, ($56 55 1-2) to be paid by the defendant out of the estate of her testator.

A bill of exceptions, of the substance following, was taken to the opinion of the Chancellor.

1st. The defendant objected to the introduction of the judgment at law, stated in the bill, on the grounds, — that her testator was no party to that judgment; had no opportunity of making a defence against it; could not have the benefit of witnesses could not sue out a writ of error; could not appeal therefrom, though erroneous; could not challenge the .jury : if judgment had been different, could not have taken advantage of it in another suit, on the same-cause of action; and because the surviving partner, Tarrant, could not compromit the rights-of her deceased husband, by suffering judgment to be render-, ed against him. These objections were overruled,, and the judgment received as evidence before the Chancellor.

2d. The defendant objected to admitting the evidence, as exhibited in the bill, on the ground, that it did not appear that the said evidence was taken regularly and before competent authority.

3d. The defendant objected to the introduction of the depositions in the suit at law, because it was not stated in the bill that they were read on the trial at law; because proper steps had not been .taken to make them evidence, the defendant never having been notified that they would be relied on or offered on the hearing — no previous order to admit them having been made, and no sufficient reason stated or proved why they could not be re-taken; and because the depositions contain answers, and state facts, not evidence in the present suit — because they were taken to establish a fact which the judgment at law could not- — the partnership,of Marr' and Tarrant. These objections were overruled, and the depositions received as evidence. The defendant also objected to a decree, because the fact, whether Marr was a partner of the firm of J. Tarrant & Co. was an issue, to be tried by a jury.

At the hearing of the cause below, before the Chancellor, the defendant applied for a continuance, to enable her to prove the solvency of Tarrant at the time of the filing of the bill; that he was then solvent ; and that he was, and is, engaged in New Orleans, in extensive merchandizing, and enjoying good' credit. Upon this, the complainants, for the purpose of obtaining a trial at that term, admitted the residence and solvency of Tarrant, as stated in the affidavit for continuance.'

The errors assigned, are,

I. The Chancellor erred in not sustaining the plea of the statute of limitations, relied on in the answer.

II. There was error in not sustaining the demurrer to the bill. 1st. For want of proper parties defendants. 2d. The complainants’ remedy was at law. 3d. The complainants were not entitled to the relief sought for; nor the revival of the judgment at law against the estate of defendant’s testator.

III. There was error in admitting the judgment at law, referred to in the bill of complainants, &c. as evidence, and in not excluding the same on the ground, &c.' stated in bill of exceptions.

IV. The Chancellor erred in admitting the depositions of the witnesses as exhibited in the bill of complainants as evidence, on the hearing, for reasons stated in the bill of exceptions.

V. There was error in overruling the objections of the defendant below, to the introduction of the depositions of the witnesses taken in the suit at law, and in receiving the same on the hearing.

VI. There was error in overruling the objections of the defendant below to the rendering of a decree before the issue tendered in the answer was tried by a jury.

VII. There was error in rendering a decree against defendant.

VIII. The decree should not have revived the judgment at law, against the estate of defendant’s testator. 1st. The decree should have been rendered, if at all, on the original consideration of the judgment, proved by competent testimony. 2d. The costs of the suit at lav/, should not have been decreed against defendant below. 3d. Thé decree should not have been rendered against defendant below, because the proofs in the cause show, that Tarrant was solvent, and that fact, together with his place of residence, was known to the complainants below; the complainants also, not being citizens of the State of Alabama; and the subject matter of the bill, in its nature, not confined to the jurisdiction of the Courts of this State.

IX. The decree should not have been, rendered for the amount of the judgment at law, because usurious sums of money are charged and allowed in the judgment for giving day of payment for advances made.

The several questions which arc presented by the assignments of error in this case, have been ably and •elaborately argued by the counsel on both sides, arid they will be examined in the order in which they have been presented, so far as they are deemed, material to the determination of the case.

I. The first enquiry presented is, as to the reliance on the statute of limitations.

By looking into the account, as exhibited in the depositions used, on the trial at law, between the present _ defendants and Tarrant, it appears that the account Commenced oil the 20th November, 1824, and is continued down by various charges, from time to time, till the first of May, 1826. The account purports to have been balanced on the llth September, 1826, by tho complainants, when there was two thousand three hundred and seventy eight dollars and forty-eight cents, due. On the credit side of the account, it appears that J. Tarrant & Co. are allowed for sundry payments, commencing on the 3d April, 1826, and terminating on the 19th September, 1827, when there was a payment of twelve- hundred and nine dollar's and sixty three cents, leaving a balance due the complainants on that day of one thousand two hundred and forty one dollars and seventy seven cents. • This bill was filed on the twelfth February eighteen hundred and thirty-three, more than six years from the date of the last debit, but less than six years from the date of the last credit. This state of facts will render it entirely unnecessary to examine the various points which have been made upon the statute of limitations: for the law is well settled “ that if there be an item in the defendant’s account within six years, this wall take the account of ,the plaintiff out of the statute, though the plaintiff’s account contain no item within that period.” Whether, therefore, this is to be taken as an account current, the last item of which is dated 7 19th September, 1827, or as an account stated and acknowledged, as is contended to have been proved by ■ the deposition of James Pitcher, and which would bring the account down to a still later period, upon Which we give no opinion, it is very clear that the statute does not, in this case, interpose a good de-fence.

The account is admitted to be between merchant and merchant, and therefore, we do not conceive that the statute which bars open accounts, at the expiration of three years, can, under any circumstances, apply. The reservation in the statute, excepting such accounts as concern the trade of merchandize between merchant and merchant, from its operation, relates exclusively to that, which fixes the limitation at the expiration of six years;

Plow far the questions, whether there is any bar to' accounts current between merchant and merchant, and if so, whether the death of Marr, and the delay which has necessarily intervened in prosecuting Tarrant to' ■judgment, would protect the complainants, we do nut find it necessary to decide, in tire view wlriclr we take of the case.

• II. The second assignment raises a question of the sufficiency of the bill, on the demurrer. To sustain the demurrer, the plaintiff in error, contends—

1. That the bill is defective for want of parties— Tarrant not being made a co-defendant; and,

2. That the complainants have a complete remedy at law, under the act of our Legislature, which enacts, that whenever any cause of action may exist against two or more partners of any denomination whatever, it shall be lawful to prosecute an action against any one or more of them.

1. That all persons in interest to a bill in Chancery should be made parties, is, as a general rule, undoubtedly correct. Exceptions are, however, allowed to this rule, when, from the nature of the case, it is not required; or, from the situation of the party, it is difficult or impossible to reach him, and also, when the residence of the party in another State is stated as a proper ground of omission. The principle appears to be, that when the case can be completely decided between the litigant parties, the circumstance, that an -interest exists in another person, whom the process of the Court cannot reach, ought not to prevent a decree upon the merits.

In this case, the object of the bill is to obtain satisfaction of the entire demand of the complainants, out of the personal estate of the defendant's testator. The surviving partner, Tarrant, is alleged to be beyond the jurisdiction of the Court, and to be insolvent. Admitting this to be true, as the demurrer does, there is no absolute necessity for his being a party; and the bill ought not to be dismissed on that ground.

2. Neither does the Court think that the second ground is sufficient to sustain the demurrer.

By the Common Law, the debts of partners are joint; and by the death of one they become extinguished' as to his testator or intestate, and can only-be revived in equity. : During the existence of the partnership, the partners must be sued'jointly, and we do not think that our statute, which authorises one or more to be sued separately, has subverted the whole doctrine of joint liability and survivorship, (which it must do, upon the principles'contended for by the defendant) and placed -partners and their executors and administrators upon • the footing of joint and several obligors or promissors. Tlie statute has not expressly declared it, and we are not prepared to do so by construction. This, the Legislature has done in the case of joint obligors, and has expressly authorised suits against any one of them, or his administrator or executor. But to give this statute that construction, would have the effect of subjecting the assets of deceased partners to the payment of the partnership debts, while the surviving partner would have the exclusive control of all the partnership funds, out of which the partnership debts ought, in justice to be paid. Where a suit has actually been commenced against a partner under the statute, and he dies pending the suit, it may be, that the suit could be revived and prosecuted- against his executor or administrator : the Court are inclined to that opinion. Having asserted his right under the statute, the creditor ought not to be deprived of his remedy under it by any act not within his control: farther than this a majority of the Court would not go, in the construction cf this statute; and they do not intend to commit themselves upon this point, as it is not now necessary 'to he decided.

The III, IV, and V assignments, relating to the admissibility of the judgment, the testimony exhibited with the bill, and the depositions taken in the suit against Tarrant, will be examined together.

1. As to the judgment,

That a judgment of a Court of concurrent jurisdiction, directly upon the point in controversy between the same parties, as a plea in bar, and as evidence, upon the same matter directly in question in another Court, is good, is undoubtedly true; and that it is not evidence of any matter which comes collaterally in question, though within their jurisdiction, nor of any matter to be inferred by argument from the judgment, is equally true, and no one can be bound by a verdict or judgment, unless he be a party or privy, or possess the power to make himself a party. For otherwise Ire has no power of cross-examining the witnesses, or of adducing evidence in furtherance of his rights': he can have no attaint, nor challenge the inquest, or appeal, or writ of error. In short, he is deprived of the means provided by law for ascertaining the truth, and consequently it would be repugnant to the first principles of justice that he should be bound by the result of an inquiry, to which he was altogether a stranger.

In this case, the judgment was used and taken as the basis of the decree, and yet the defendant in this bill was neither a party or privy to the suit at law, and had no power to make herself a party.

2. And this rule is equally applicable to the exhibits and depositions. The party to be affected by them must hax e been legalfy called upon to cross-examine the witnesses, and have had the opportunity to do so, for otherwise the great and ordinary tests of truth are wanting, and this cannot be done unless ha be a party; and hence it is a rule, that when a judgment is not evidence against a party, the depositions taken in the case cannot be.

But it is contended that as Marr was a defendant to the suit at law until his death, and had notice in his life-time of the time and place of taking the depositions, and did in one case actually file-cross interrog-atores, his representative ought to be bound by them, though he died before they were used, or the judgment obtained. By the death of Marr the whole proceedings were abated as to him; and so far as his representative is concerned, they are to be considered as never having had any existence. Had Marr lived and defended the suit, he might perhaps have defeated, those depositions in various ways. They might not have been properly taken, or properly opened, the witnesses might have been interested, or their testimony been irrelevant or contradicted, or they might never have been read. By his death he was deprived of all these defences, and his representative has not had any opportunity to subject them to any of these tests. It is therefore clear, in the opinion of the Court, that in this branch of the case, there is manifest error, The suit in Chancery to subject the assets of a deceased partner, is a new and distinct proceeding against a new party, and all the facts must be established by testimony in the ordinary manner.

VI. The sixth assignment, that the Chancellor should have directed an issue to try the fact of Marr’s being a partner, is not supported by authority. A Chancellor may, in his discretion direct an issue, but he is not bound to do so, except in some cases required by statute, or in a few specified cases, of which this is notone.

VII — VIII. The 3d specification of the 7th and 8th assignments, presents a question of more difficulty than any one disclosed in the record, and one upon which the Court has been less aided by authority, The admission by Iho complainants, that Tarrant was at the time of the filing of the bill, and at tho time of the trial residing in the city of New Orleans, and that he was and still is solvent, and in good credit, places the case upon an entirely different footing from that set out in the bill.

That the complainants have obtained a judgment against him in conformity with the laws of this state; that the execution has been returned nulla bona ; that it is admitted there are no effects of the firm within this State, upon which the judgment can be levied; and that the surviving partner has removed himself and his effects beyond the jurisdiction of our Courts,' presents a strong case for the assertion of the complainants’ claim against the assets of the deceased partner, which are admitted to be sufficient to pay this and all his other debts, cannot be denied. Yet there is no principle which appears to be better established, than that in order to maintain the jurisdiction of a Court of Equity, there should be an absolute discharge or insolvency of the surviving partner. “ If he is liable at law and is able to pay, the' bill cannot be sustained.”

It is asserted, by Mr. Justice Story, that “it is perfectly well settled that equity will not lend its aid to reach assets in the hands of executors, when a com-píete, adequate and effectual remedy at law exists against the surviving partner.” Such also is the authority of Chancellor Kent, after a minute examination of all the English authorities upon the subject.

At law the debt is extinguished as to the deceased partner, and the .creditor is not bound to use any dill-gence (such as would be required in case of an endorsed note.) He may deal with the survivor for a time, and let the debt of the firm remain unpaid, and yet in case of subsequent insolvency may resort to the deceased partner’s estate.

That great inconvenience may often arise by the removal of surviving partners, is no doubt true; but still the rule must not be impugned, to remedy the inconvenience. In this case, the removal of Tarrant may create delay ; but still it cannot be said the complainants are without a complete, adequate, and effectual remedy, at law.

The city of New Orleans is a prominent city of this Union: her commercial intercourse with New York, where the compl’ts reside, is as great and intimate, as with us. The Courts of Louisiana,- and that of the United States, in that State, are open to the compl’ts, and in point of fact, they might as well have gone there, in the first instance, as to have come here; and they can go there now. There is nothing local in the contract. Tarrant has not obtained a legal discharge from the debt, and he is solvent, by the admission of the complainants. Equity says, they must therefore pursue the remedy there; yet, they may ultimately resort to the estate of Marry and recover, the debt here.

A case might be imagined, in which the absence of a surviving partner, though no legal discharge or insolvency was proved, would present a case for relief in equity : but as the case now stands, the Court are constrained to decide, that the admission of the solvency of Tarrant, is fatal to the bill.

IX. There is also error in the mode of computing interest, as set forth in the 9th assignment. The law does not allow rests, or the computation of interest upon interest, re-stating the account every six or twelve months, and adding interest to the princi'pal sum : and no custom or agreement to that effect, can alter the law. Interest may be charged on an open account, when by the. terms of the sale, the contract stipulates for a certain period of credit: but the mode of computation is to charge interest on the debt up to the date of the payment, and deduct the payment from the whole debt; and so,, as often as payments are, made. This is the rule in Chancery in New Yorkf where this contract was made, and where it was to be executed.

• From this view of the case, it follows, that the decree of the Chancellor below must be reversed, and the bill dismissed. • ' •

       Angel on Lim 193, and theauthorities cn ted.

       Aik. Dig.268

       12 Wheat.197 10 ib. 167

       1 Starkie,217.

       1 Starkie,217.

       1 Starkie,264.

         1 Starkie,267

       2 Mad.474.

       1 Gallison 385

         2 Johns. Ch. R. 508.

       1 Johns. Ch. R. 13.

      . Mer R.547


source: Caselaw Access Project

author: By Mr. Chief Justice Satfold :

license: Public Domain

text:
    RANDOLPH versus PERRY.
    Where there is-a. subsisting contract in writing, between parties, adequate to' determine their rights, and under which work has been completed, it will not be permitted for one of those parties, to set up anew parol agreement, without consideration, varying the first, and changing its terms and condi-' tions.
    The statute of 1807, restricting the charge for attendance, in any hill of costs; of more than two witnesses to any one fact, must he understood, to mean such facts as are material, and which may necessarily arise in the progress of !i cause, either incidentally, collaterally, or directly upon the issue, and it seeihs, not to have been the intention, to disallow the attendance of witnesses to the successful party, where, from the course of the adversary, or the decision of the'Court, the evidence of such witnesses (otherwise proper) has been superseded, or dispensed with.
    Assumpsit in the Circuit Court of Greene. The plaintiff below, Perry, declared for work and- labor done and performed at the instance and request of defendant, and there vas a verdict for the plaintiff. On the trial, a written agreement for the performance of work at specified, prices, was given in evidence, as ano a memorandum signed by the parties, explaining some intended alterations in the plan of the work, and particularly referring to tho first contract. •
    The Court then permitted the plaintiff to show by parol testimony, that the work had been performed in a mode superior to that stipulated in the agreement; and that tho defendant had consented to abandon the prices therein specified, and to resort to other charges differing from those first agreed upon.
    'Thedefendant, subsequent to verdict,required thd Court, to instruct the cleric to exclude from tho bill of cósts, the taxation of charges for attendance of sundry of.plaintiff's witnesses, on the ground, that all the witnesses _subpGonssd and in attendance, had not been examined on the trial; which tho Court refused.
    On thoso points, by bill of exceptions, tho case cairn ir/co this Court.
    Stuivaut, for Plaintiff in error.
    Here the written agreement is proposed to bo varied by proof from which a different understanding might be inferred. It does not seem to-have been proof of another contract, but proof from which a different contract may have boon inferred. At most, a contract cannot be \dons away but by a contract. Tho introduction of such loose verbal evidence, to vary a written agreement; as was here proposed,' cannot be admitted. Besides, as to the second agreement, if any such existed, it was nudum 'pacium; there was no consideration" to support it.

      A consideration is indeed attempted to be established. There was on the part of Perry an offer to prove that some of the work was done in a superior style; but this at most could only be in the nature of a past consideration; and to make such a consideration binding, it must be done at the request of the party benefitted. — 1 Sand. PI. & Ev. 171, 17ñ, 173— Comyn Con. 27, 291 — 2 Marsh. 57. Here there was no proof that Randolph requested that the work should be done in a different style from that first agreed upon.-
    We also contend that the Court erred in the taxation of costs. There were sixteen witnesses summoned by the plaintiff, and only four of them examined. We moved the Court to include only the witnesses who were examined; which the Court refused. This, we contend, was error..
    Erwin,- contra.

    It is said that defendant was benefitted by the verbal agreement. So far as the facts appear, it was not so. The amount he recovered was less than the amount he was to receive by the original agreement. The party who has to pay “less,” cannot complain; and the facts show that the plaintiff in error did not have to pay “more.”
    . As to the consideration, the law will lay hold of the slightest circumstances to uphold a contract. A benefit received, or an injury or inconvenience avoided will be sufficient. So .will an inconvenience to which the other party is subjected, or the preventing of litigation. A mere moral obligation will sustain a contract.
    In the case referred to by counsel, where sailors were promised additional wages for great exertion in a storm, and it was held that the contract could not be enforced, it was believed to be against public policy; - ns it would induce sailors, in every such case, to hold back for higher wages.
    A past consideration, accompanied by a promise morally binding, will sustain a contract; as, where a man after he arrives at full age, promises to pay a ■debt contracted during his minority.
    As to verbal evidence varying a written agreement, a case from Pickering, goes farther than this. There, the instrument was • under seal: but the workman finding that he had made a loosing bargain, stopped short. He was told that if he would go on, he should not suffer, but have a reasonable compensation. The workman recovered in assumpsit, although the instrument under seal was produced; 'and it was contended, that the sealéd instrument could not be varied by parol, and that there was a want of consideration. These objections were overruled. — 9 Pickering, 298 to 305. This case overrules several of the cases relied upon, on the other side.
    • But this was not such a distinct agreement as to require a distinct consideration; .it was an assent that the established prices should govern as to the amount to be paid. May not parties adjust their own differences ? If they had been about to go to law, might they not agree not to do so, but to settle by the town prices? And if they did so settle, would not such settlement be binding ? Say it was a distinct contract, and still the consideration was sufficient; for litigation was thereby avoided.
    As to the costs on account of the number of witnesses, the objection cannot be sustained. The statute only provides, that not more than two witnesses shall be taxed to prove the same fact. To apply this rule, the attention of the Judge: must be called to the facts proved by the different witnesses: but this was not done here; nor could it be, for the witnesses were not examined. It is often uncertain what course a trial will tafee, A trial on the merits may be expected, for which purpose it may be necessary to have many witnesses in attendance ; but it may go off on demurrer or by plea in abatement. In such cases, the witnesses are not examined, yet the party is surely entitled to his costs. Of witnesses not examined, the Court cannot decide that more than two were summoned to prove one fact. — 1 Mimf. 268.
   By Mr. Chief Justice Satfold :

The action was assumpsit, — brought in Greene Circuit Court, by Perry, against the plaintiff in error, to recover an account for carpenters work.

There were various counts in the declaration, and the general issue was pleaded. A bill of exceptions shews, that the plaintiff below gave in evidence a written agreement, dated Greensboro’, July 31, 1828, specifying the items of work to be done, size of the house, &c.; and by which Perry was bound to complete the work on or before the first of January next thereafter; and Randolph to pay him at the same time the sum of nine hundred dollars. This agreement was signed by both the parties, and to it was appended the following- — !< Any alteration in this building., either in diminishing the amount of the work, or measuring the same, subject to reduction or addition, according to the usual charges of mechanics.”

After which, the defendant gave in evidence the following written agreement: “ Greonsborough, August 23, 1828 — Whereas, since the agreement between Rolls Perry and R. C, Randolph, for the wood work of a brick building, dated July 31,1828, said Randolph has signified his intention to alter the plan of the house; it is therefore agreed by said parties, that there shall be a reduction in the contract for any work not required in the actual plan of the building, or there shall be an addition for workover and above the contract of 31st of July, which said reduction or allowance to be governed by the rates exhibited in said first mentioned contract.” . This ■was also signed by both the parties.

Randolph introduced, as further evidence on his part, Perry's receipt for six hundred and sixty eight dollars and fifteen cents, expressed to be paid upon .the “ within account” On the opposite side of the same paper, was an account stated in Randolph’s hand writing, containing various items of work, w,ith prices set opposite each, amounting to seven hundred and thirty eight dollars and seventy five cents.

The record further states, that then the counsel for Perry, introduced evidence to prove, that a portion of the work was done in a manner superior to what was required by thoplan of the house, and also other verbal evidence from which the jury might draw the conclusion, that after the execution of the ‘ contract, and the actual completion of the house, the plaintiff and defendant had agreed to abandon the con-, tract in writing, and to be governed in their settlement by the “ Tuskaloosa bill of prices,” without proof of any new consideration arising between the parties, or any request on the part of the defendant, that the contract in writing should be abandoned. .This- evidence, being objected to by the counsel for Randolph, was admitted by the Court.

A second bill of exceptions shews, that after the rendition of judgment against the defendant below. he moved' the Court to instruct the -clerk to exclude front the taxation of costs, the attendance of a portion of the plaintiff’s witnesses. The facts appearing, on whieh the motion was founded were, that about sixteen witnesses had, at different times, been subpoenaed for the plaintiff; that of this, number, seven were in actual attendance at the trial, but that four only were examined. The motion was refused, on the ground that the Court would not interfere.

The. assignments of error, are,

1. That the Court admitted the evidence objected to, as stated in the first bill of exceptions.

•2. That instructions, relative to the taxation of costs were refused, as stated in the second bill of exceptions. • .

On the first point, the enquiry arises, whether the promise was of such a nature, and founded on a sufficient consideration, to render it valid and binding ? The rule of law in this respect, is said to be, that, if there be not a strict and undo ubted moral obligation, even an express promise to do that which the law did not render compulsory, will not afford a cause of action, in the absence of an adequate consideration.”

, It wdl here be observed, that the question is not whether the defendant below was bound to pay for the work, a fair, and adequate price. To this extent, he was bound by the contract under which the work was done. The original agreement, which was in writing, particularly described the contemplated building, and fixed the price for the work to be done upon it at nine hundred dollars; also stipulated, that for any alteration in the plan, an addition or reduction of the price, should be made, “ according . to the usual charges of mechanics.”-— These must be assumed, to have been reasonable and adequate charges, sanctioned by the custom and usage of that place — Greensborough, not Tuskaloosa.

The subsequent written agreement, contains little, if any .thing more than a mere repetition of the same, that for the intended change in the plan, the reduction, or additional allowance, for such work should be governed by the rates exhibited in said first mentioned contract. Under this stipulation, the only doubt that can arise, if any, is, whether the parties intended that the reduction, or addition of price for the alteration, should be in proportion to the nine hundred dollars for the original plan, computing the amount according to that standard, or whether the data for this computation should be the “ usual charges of mechanics.’’— But this question is not presented. The question is, whether the prior agreements were abandoned, and a subsequent valid contract entered into, that the entire work should be paid for according to “ the Tuskaloosa bill of prices.” By this we understand is meant, a general bill of rates, including the various items of mechanical work necessary in such building, and which has been adopted by the mechanics and used at Tuskaloosa.

That the parties were competent, before this work was done, to agree on the Tuskaloosa prices, or any other standard that was not so grossly unjust, as to furnish a presumption of fraud or unfairness, is not to be doubted. In that case, the work to be done would be a sufficient consideration, and the bargain would fix the price. In the case before us, the work had been completed under a valid contract for what we must assume to have been an adequate consideration; so it stood, binding on each party, at the time of tlie supposed subsequent agreement, now insisted upon in lieu of the former It is shewn, that the defendant below did net request the substitution of the Tuskaloosa prices, in lieu of those under which the work was done; also that no new consideration moved between the parlies as the foundation of this promise. It is perfectly clear,' that if the alleged subsequent agreement is void, -the former remains in full force. Then what consideration, is there to sustain the subsequent agreement which it was supposed the jury might infer from the evidence offered. The liability otherwise existing was adequate to the work; such at least is the legal presumption. If so, there was not even a moral obligation to pay inore, or according to any different standard. It cannot be viewed as a compromise of any doubtful right; for no settlement was consummated ; there was no liquidation of the demand; but the claim was left no less subject to litigation than before. We can not infer, if that could avail any thing, that an adoption of the different standard, wonld in any degree have facilitated the settlement. It therefore results that the promise’ or contract, if such was expressed, was nudum pac-turn and void ; consequently there was error in the admission of the evidence tending to prove it.

On the second assignment it may he remarked, that the statute of 1807 provides, that, in no hill of costs shall there he allowed the charges of attendance of more than two witnesses to any one fact. The facts here contemplated, must be understood to include all that arc material, and which may necessarily arise in the progress of the trial, as well incidentally or collaterally, as those directly in issue. It can not be presumed to have been the intention of the Legislature to disallow the attendance of witnesse’sdc the successful party where, in consequence of the course adopted by the adverse party, or the decision of the Court, the course of the trial has been diverted from the ordinary channel, so as to exclude or supersede the necessity of evidence, which would otherwise be proper. The object seems to have been only to protect the party against an unnecessary and oppressive accumulation of costs from, the attendance, or introduction of more than two witnesses to each material fact necessary to be proven. From the difficult nature of the subject, much must depend on the discretion of the Judge trying the cause. But admitting, as hold by this Court, in Smith vs. Donaldson, that the construction of this statute is a sub ject of revision in error: yet the particular facts and circumstances under ' which the decision was made, must be more definitely shewn, than has been done in this caso', before we can pronounce error in the decision. The record does not ascertain the number of material frets involved in the trial; nor pren elude the idea that some admission on the part of Ran--dolph — some decision, of tho Court, or other circumstance, may not have obviated the necessity of proof, which otherwise would have been indispensable, on the part of the plaintiff below.

We must, therefore, say, that no error on the latter point has been sufficiently disclosed. But on the first, the judgment must be reversed, and the cause remanded.

       Chit. on Con. 12.

       Chit on Con. 11, 12, 13.


author: By Mr. Justice Hitchcock :

text:
    TATE, Guardian, versus GILBERT.
    The Supreme Court has no power to control the discretion of inferior Courts, in regulating pleaeflmgs, allowing' amendments and filing additional pleas ;• hut, this must be understood to be confined to sueh pleas as are consistent with each other, and with the regular order of pleading.
    That an inferior Court allowed a defendantto withdraw the plea of general issue, and to substitute other pleas in bar of the action; is not error.
    A plea, puis darrein continuance, is a waiver of all former pleas; and where three pleas were filed, the latter of which was one, puis darrein contimmnce,-held, that the plaintiff was not bound to answer either, and that he properly demurred to the whole.
    Tate, guardian of S. McGuire, commenced an action of assumpsit in the County Court of Shelby, against Gilbert, to recover an amount of money charged to be in his hands, as former guardian of the plaintiff’s ward. At the final trial, the Court permitted the defendant to withdraw the plea of general issue, which he had previously relied on, and to file three other pleas in bar, the last of which was a plea puis darrein continuance. It set out, substantially, that the matter of the said suit, had been, before that time, included in a settlement which the said defendant had made with the Orphans’ Court of Shelby, in a settlement of his accounts as former guardian of said S. McGuire, whereby the said Court had decreed against the defendant for a certain sum, which was alleged to be the identical amount, sued on in the said action by the plaintiff, Tate.
    To these pleas there was a general demurrer, which being overruled, and the plaintiff refusing to reply, judgment was rendered for the defendant.
    To reverse this judgment, a writ of error was taken by the plaintiff, to this Court.
   By Mr. Justice Hitchcock :

This case is submitted without argument.

The action is assumpsit, brought by the plaintiff as" guardian of Sally McGuire, to recover a sum of money alleged to be in the hands of the defendant, as former guardian of the same individual. The defendant pleaded the general issue. A trial, verdict and judgment were had for the plaintiff. A bill of exceptions was taken, and the cause was brought to this Court, where it was reversed and remanded, after which a second trial was had, and a verdict was rendered for the plaintiff when a new trial was granted, and the cause was continued to August term, 1834, when the Court permitted the defendant to withdraw the plea of the general issue, and plead three pleas in bar.

■ 1. -That the plaintiff was not the guardian of Sally McGuire at the time of the commencement of his ■suit.

2. That the defendant was the guardian of Sally McGuire at the time of the commencement of said suit; and

3. That the Orphans’ Court for Shelby county, did on the 6th day of February, 1832, settle the accounts of the defendant as guardian of Sally McGpire, and render a decree against him for two hundred and twenty one dollars sixty two and a half cents, which was for the same identical cause of action as this suit, and which decree is in full force, &c.

To these pleas, the plaintiff filed a general demurrer, which was overruled, and the plaintiff- declining to reply, judgment final was rendered for the defendant, and the case has been brought here by writ of error.

It has been repeatedly decided by this Court, that it lias no power to control the discretion of the Court below, in regulating the pleadings, allowing amendments, and filing additional pleas. But this must be understood, to be confined to such pleas as are consistent with each other, and with the due and regular order of pleading.

There was no error in allowing the defendant to withdraw the plea of the general issue, and file other-pleas in bar of the action.

But the last of the three pleas above pleaded, is a plea of puis darrein continuance, which is a waiver of all former pleas. The plaintiff was not bound to reply to this and the other two, and therefore he properly demurred to the whole.

Whether the last plea is good in law as a bar to the plaintiff’s action, is a question upon which we give no opinion. The case is decided solely on the ground, that the plaintiff was not bound to reply to the third plea; and as he was not bound to make a selection, he was not bound to answer either.

Let the judgment be reversed, and the cause remanded.


author: By Mr. Chief-Justice Saffold :

text:
    KENNON versus M’REA.

      In regard to the in competency of a witness, a distinction exists, as to an inter* est in the Question, and an interest in the event of the, suit; and a witness will not be hold incompetent to testify, unless it appear, that he is to gain or lose by the event of the suit: and any objection as to his interest in the question, goes to his credibility.
    As a general rule, an indorser of a note or bill, is incompetent in respect to his inieresf, asa witness in favor of a subsequent endorsee, to charge any party to the instrument whose liability is anterior to his own.
    A release entered on the minutes of the Court, (not signed, sealed or delivered to the witness, and implying a mere discharge as to the interest in the particular action,) is not sufficient to authorise an incompetent witness to give testimony.
    This was an action of Assumpsit in Tuskaloosa Circuit Court commenced by McRea against Ken-non.
    The plaintiff declared against the defendant, as indorser of a promissory note, drawn by one Long-mire, in favor of one Shaw, and by him endorsed to the defendant.
    The plaintiff was the indorsee of one Fuller; who was the indorsee of Kennon. On the trial, Fuller, the indorser of the plaintiff was introduced as a witness to prove, that the defendant had promised to pay him the amount of the note. It appeared that there had previously been entered on the minutes of the Court, a release on the part of the plaintiff, to the interest of Fuller, and the Court held him to he a competent witness, and having testified, judgment was given for the plaintiff. The defendant prosecuted his writ of error here.
    Wh-son, for Plaintiff in error
    Stewart, contra.

   By Mr. Chief-Justice Saffold :

Assumpsit was brought by McRea as indorsee, against Kennon as indorser of a promissory note. The note was made by one Longmire, payable to Shaw, who indorsed it to Kennon, who endorsed it to one Ezekiel Fuller, who endorsed it to McRea, the plaintiff below.

■ At a term of the Court previous to that at which the final trial was had, and at which there was a mistrial, an entry appears to have been made on the minutes, as follows: “ Came the parties by their attorneys, and the plaintiff released, in open Court, Ezekiel Fuller, from any' responsibility or liability in this action, before he was qualified as an evidence.”

On the final trial, a bill of exceptions was taken, which states that the plaintiff below offered E. Fuller, (who was the indorsee of the defendant and the in-dorser of the plaintiff,) to prove that the defendant had promised to pay him, the witness, the amount of the note sued on. The competency of the witness being objected to, the plaintiff produced the above entry as evidence of a release to the witness. The defendant still objected,

1st. To the sufficiency of the release.

2d. To the plaintiff’s right to make it.

3d. That if sufficient as a release, it discharged the defendant from liability in this action, and the plaintiff ought not to be permitted further to prosecute it; and that Fuller was still an incompetent witness.

These objections were overruled, and the witness was permitted to testify. There is no shewing more definite as to what the witness did swear. A verdict and judgment having been rendered in favor of the plaintiff below, Kennon, the defendant, prosecutes this writ of error, and assigns as causes,—

1. The overruling bis objections to the competency of Fuller as a witness, and his exceptions respecting the effect of the supposed release.

2. That the fact, the witness was introduced to prove, was inadmissible testimony.

No other question appears to have been made below, reserved for the consideration of this Court, than that respecting the competency of the witness to prove the promise of the defendant to pay him (the witness) the amount of the note sued on, and the effect of the release, if valid.

Respecting the admissibility of the evidence, no objection appears to have been made, unless one of the reasons assigned against the competency of the witness, (that the evidence sought from him would discharge the defendant from liability in the action,) can be so regarded. It is clear, however, that if a plaintiff be about to introduce evidence which will have the effect-to defeat his action, the defendant has no right to object to its introduction. It is equally obvious that he can not avail himself of such matter as an objection to the competency of the witness. If evidence introduced by a plaintiff has no tendency to support the action ; or if it can operate to defeat it, by discharging the liability of the defendant, or otherwise, it is the undoubted privilege of the latter to avail himself of this advantage, by motion to the Court for instructions to the jury respecting the legal effect of the evidence, and if not given, can assign the failure as error. But here, if the release could have had any such effect, (which is by no means admitted) it does not appear that any instructions to the jury were either requested or given.

Then it remains for me to enquire, whether Fuller was a competent witness to prove Kennon’s promise to make the payment to him ?

The rule of practice in this respect has.undergone material changes. At an early period in the history of jurisprudence, .it was generally held, that if a witness had an interest in the question put to him, he was incompetent. “ But a distinction has since been made between an interest in the question put to the witness, and an interest in. the event of the suit; and the general rule now established is, that a witness will not be disqualified on the ground of interest, Unless he is interested in the event of the suit.” Such is declared to be the modern fule in the English Courts, and the same has been frequently recognized in the United States. In Van Nuys vs. Terhune, the Supreme Court of New York, says, “The rule by which a witness is excluded on the ground of interest, seems to have fluctuated, at different periods, but on a careful examination of all the authorities', ancient and modern, the general rule will be found to be, that if a witness will not gain or lose, by the event of the cause, or if the verdict cannot be given in evi-dencQ for or against him, in another suit, the objection goes to his credit only, and not to his competency. Generally, therefore, an interest in the question alone will not disqualify the witness, but the objection goes to his credit only:” they add, “we do not mean to say but that there may be' some technical exceptions to the rule; but the rule in its general application is correct, and is the one adopted by the Court. (See also Phelps vs. Winchell. ) That this witness was interested in the question, there can he no doubt. j will enquire if he was not also-in'the event of the suit.

A case mainly relied on by the counsel for the plaintiff in error is, that of Stephens vs. Lynch. That was an action by the endorsee against the drawer of a bill of exchange, payable to Cleland, and accepted Jones. There being no direct evidence of notice having been given of the dishonor of the bill, Cleland was tendered as a witness to prove that the defendant had subsequently acknowledged his liability upon it, and promised to pay it. The. witness was objected to on the ground of interest. Lord Ellenboro, remarked, that the objection would exclude the party to a bill in every case where he comes to assist the plaintiff; and decided that CMand had not such a direct interest in the event of the suit as to exclude him.

This was a decision at Nisi Prius, and the question does not appear to have been elaborately argued, or deliberately examined by the Court: no authorities appear to have been quoted, nor was any reason given, except as noticed, that “ the objection would exclude the party to a bill in every case where he comes to assist the plaintiff.” I may be permitted to remark, that this consequence does not necessarily follow; for if the party called had endorsed without recourse upon himself; or if his endorsement was subsequent to that in favor of the plaintiff, these, or other similar circumstances, would materially vary the question of interest, or clearly show him-to be indifferent. In cases where the witness is clearly interested,' if his interest be equi-ponderemt, by a like responsibility to one of the parties, in either event of the suit, his interest being neutralized, he is competent ; though interested in the question or subject of the suit, he is indifferent to the result of that action,. It is true the case referred to of Stephens vs. Lynch has been quoted as authority by Starkie in his Treatise on Evidence; by Phillips (2 vol. 40) and by Chitty on Bills, (417)-without any expressions of'dissent;, and has in some instances been recognised by Courts of respectable authority. In the late treatise on Pl. and Ev. by Saunders, (vol. 1, 316,) its authority is also recognised, and this reason assigned in support of the principle; that though a recovery and satisfaction in the suit by the subsequent indorsee against the prior party, would extinguish and destroy the debt, and of course exempt the witness from farther responsibility to any one; when a failure might .subject him to the necessity of paying tlie debt; yet his liability would not be certain, and should he be-even compelled to pay, he may afterwards seek his redress against the same original defendant, or some-other prior party. The force of this reasoning may well be questioned. It is very evident that these considerations do not neutralize the witness’ interest: for though it be not certain that a recovery can be effected against him, such-is the legal presumption; and if it be had, he must then pay the debt, and seek his redress against a defendant, who has once successfully resisted the demand, or some other prior-party to the security, who may well be presumed entitled to the benefit of the same defence, which has once prevailed in favor of another in a similar condition. This view of the subject, is, I think entitled to great weight, under the peculiar circumstances of this case ; the most material of which is, the great lapse of time, during which it may be inferred, Fuller the witness, slept upon his rights. The indorsement from Kennon to him, is without date, and would therefore refer, in the absence of other proof, to the last anterior indorsement, which is that in favor of Kennon, bearing date more than four years prior to'Fuller’s indorsement to the present plaintiff. This fact suggests the probabilhy, that by laches, or otherwise, Fuller had lost his remedy on the note. If so, there was a strong inducement for the manufacture of evidence to restore the demand: in an action by Fuller, he .could not expect to be admitted as a witness; then shall a mere assignment from him to the plaintiff, have the effect to remove the objection of interest, and establish the competency of the former as a witness. I maintain, that the indorsement alone, is not evidence even of a consideration passing between the ■ parties to it, as against the defendant in the action. It would be sufficient to authorise a recovery against the defendant, in favoi of the last indorsee, no other objection being interposed, because then the defendant would be indifferent -whether the recovery be in favor of one indorsee or another; and if the last in-dorsee (properly constituted) hold only as agent, he may recover as indorsee alone for the benefit of his principal against any party who would be directly responsible to the latter. Then, while such may be the nature of this assignment, and while the law recognizes the indorser’s interest in the event of the suit, •it appears to me that no sufficient equi-ponderance can be supposed to exist, to remove the objection. -

But aside from any peculiarity in this case, and admitting the relaxation of the rule of evidence to its full extent, that interest in the question, or subject of tho suit, is an objection only to the credibility, and not .to the competency of the witness ; there is'still strong authority for the rejection of this witness.

In the case of Buckland vs. Tankard, the action was by the indorsee of a bill of exchange against the acceptor. The defendant called Gregson, who was the first indorser, to prove that the plaintiff had no property in the bill-that Gregson'i&A only delivered it to him to receive payment from the defendant, and not with intent to convey any interest to him ; for that in truth he had not paid any consideration for the bill. ' Gregson admitted on examination that he claimed an interest in the bill. Lord Kenyon, at Guildhall, rejected him, as being an interested witness. The case being removed into the Court of King’s Bench-Kenyon, Chief Justice, said the whole question turned on this -whether the witness's situation would or would not he bettered by the event of the verdict in the case: He was still of the opinion that it would : “ for, if the plaintiff should succeed, Greg-son would be put to much greater difficulties to get back the money than if the plaintiff should be foiled by'means of his testimony;” and therefore, on the ground of interest, he thought the witness was properly rejected; and such was the opinion of that Court.

The same remarks are equally applicable to this witness. His situation, as disclosed by the record, established his interest, no less than the admission of Gregson did his: (and without the admissions the law would have implied an interest against the party calling him :) the fact sought to be proven in both cases, was an alleged agreement or promise between the witness and the party against whom- he was introduced. Here it may be observed, • Fuller was introduced to prove a promise to pay to him individually, by his immediate indorser. If the plaintiff could not recover against the indorser — the promise inuring equally for the benefit of the former — from that circumstance alone, it might be inferred that Fuller could not — that the laches would interpose an equal bar to any action he might bring. Then may it not well be said, that, if the plaintiff in this action fail, the witness will be left in a much worse situation than if he succeed.

There are various other decisions in the English Courts, recognising the same principle. Eminent Judges have declared the subject to be one of great difficulty and embarrassment; and that the decisions relative to the competency of witnesses, in respect to their interest, have been so variant and conflicting, that it has been impossible to reconcile , them ; and that the question must often depend on the peculiar circumstances of the case in which it arises.-(See Burt vs. Baker, et al. )

I will also notice a few American cases on this point. In Herrick vs. Whitney, the action was by the indorsee, against the maker of the note. Fitch, the indorser, was called by the plaintiff to prove the execution of the note by the defendant. He stated that he had transferred the note to one Cummings, in payment for a pair of horses, but at the risk of Cummings as to the solvency of the maker, and that he had no interest in the suit — yet the defendant’s counsel objected to the competency of the witness; and the question reached the Supreme Court. There it was ruled, that the witness was responsible upon an implied warranty that the note was not forged; that he therefore had a direct interest in establishing the fact he was called to prove, and was incompetent. The Supreme Court of Massachusetts has also held, in more than one case, that in an action by the in-dorsee against the drawer, the indorser is not a com’ petent witness to prove the hand writing of the draw’ er, without a release, or its equivalent — a discharge ¡from liability on the indorsement.-Barnes vs. Ball. Rice vs. Starnes.

In the case of Owen vs. Mann, the question of competency occurred on the trial of an ejectment, in which the controversy solely regarded the title to the estate demanded. Mann, the defendant, having pur’ chased, with warranty, from one Barber, had given to the latter Iris note for the purchase money. The note had been assigned by Barber, who appeared to lie a man of property, to Jo?ies, and after the commencement of the ejectment, the latter applied to the defendant for payment. After.some hesitation, the defendant paid the note, on condition that Jones should refund the money, if judgment in the pending action should be rendered against the defendant. To this effect Jones executed a covenant, in which it was agreed that tire note should remain in his possession, as if nothing had been advanced upon it; so that, in the event of a recovery by Owen, against the defendant, he. might taho his remedy against Barber, Ins in-dorser. The Suvreme Court of Errors adjudged the witness incompetent, on the ground of interest. They said, if the interest is counteracted by an equal interest on the other side, the witness is competent. But if there be the least inequality of interest — that is, if a recovery on one side is more interesting to the person called, in a pecuniary point of view, than on the other, he cannot bo permitted to testify. They considered it manifestly clear, that Jones was net an indifferent witness, for the reason, that if judgment should ho rendered against the defendant, he, Jones would be obliged immediately to refund the money received of Mann, while his demand for a similar amount on- Bar-> ber, might bo long postponed — then be sought after •with great expenso, and eventually fail, through Bar--bc.r’s insolvency. They assimilated the situation of Jones, to the condition of bail, when called by his: principal, whose incompetency they considered too-well settled to require the formality of proof; but whose situation was less objectionable than Jones’.

The authorities already reviewed, and the refiec-tions advanced, appear to me to establish sufficiently the incompctency of this witness; but there is one other consideration strengthening this conclusion. It is this, that whether an indorser who has paid off the bill or note to a subsequent indorsee who has obtained a judgment on the same, can not, by mere opera-tson of law, claim the right of cession or subrogation to all the benefits of the judgment, is at least questionable ; and that he can have his benefit by an assignment of the judgment, seems to be settled.— (See Braham & Atwood vs. Ragland, Turner, et al. ) This maybe considered nearly tantamount to an independant right of cession; as it may be assumed that the plaintiff in the judgment would, generally, consider it a sufficient inducement to assign his interest to any one who would pay him the amount demanded.’ Under this principle, one in the situation of Fuller, supposing his right of recourse on the note to have been lost, would be enabled to restore it indirectly, by assisting his indorsee to recover the judgment, then paying it, and receiving a cession, or an assignment of it. In this view, he would be materially interested in the event of the suit.

From this examination of the subject, I think it results, that as a general rule, an indorser of a note or bill is incompetent in respect to his interest, as a witness in favor of a subsequent indorsee, to charge any party to the instrument whose liability is anterior to his own; and that the objection to the competency of this witness is more obvious from the peculiar circumstances of the case, already adverted to.

I have examined the case independently of the supposed release, because we think it can have no effect as such. It cannot be regarded as a part of the record, Fuller being no party to the suit: and not being signed, sealed or delivered to the witness, it can not be regarded as a deed, or sufficient evidence of any contract. A further objection to it is, that it imports only a discharge from any interest in that action, and would not necessarily operate as a release from his liability to a subsequent action as indorser of the same note.

We are therefore of opinion, the judgment below must be reversed, and the cause remanded.

       1 Phil. Ev. 36, &

       3 Johns. Cas. 82.

       i Day, 270.

       2 Camp. Rep. 332.-12 East, 38, S. C.

         5 T. Rep.578

       Chit. jr. on R 61.

       3 Term R. 27.

       15 Johns.240.

       1 Mass. R. 73

       3 ib. 225

        2 Day, 339.

       3 Stewart, -andauthorities there cited.